Kowal v. Com., Dept. of Transp.

• Decision Date: 19 September 1986
• Citation: Kowal v. Com., Dept. of Transp., 515 A.2d 116, 100 Pa.Cmwlth. 593 (Pa. Commw. Ct. 1986)
• Parties: Mark KOWAL and Laura Kowal, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION and Charles Paul Kugal, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 116

515 A.2d 116

100 Pa.Cmwlth. 593

Mark KOWAL and Laura Kowal, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION and Charles Paul Kugal, Appellees.

Commonwealth Court of Pennsylvania.

Argued March 12, 1986.

Decided Sept. 19, 1986.

Bruce W. Bernard, Ely and Bernard, Erie, for appellants.

Brian H. Baxter, Deputy Atty. Gen., Pittsburgh, for Dept. of Transp.

Before CRUMLISH, Jr., President Judge, and ROGERS, CRAIG, MacPHAIL, BARRY, COLINS and PALLADINO, JJ.

OPINION

CRUMLISH, Jr., President Judge.

Mark Kowal and his wife, Laura Kowal, appeal an Erie County Common Pleas Court order granting a motion to mold a verdict in their favor against the Department of Transportation (DOT) to $250,000 and assessing $73,834.52 in delay damages against DOT. We reverse and remand.

Mark Kowal was a passenger in an automobile which left the roadway of a Commonwealth highway, straddled the guardrail, and then flipped over due to an eight-foot gap in the guardrail. He was thrown from the vehicle onto the highway and suffered injuries which left him a permanent quadriplegic. The Kowals filed two suits, one against the driver, Charles Paul Kugal, and one against DOT. ¹ Mark Kowal sought damages for loss of earnings, pain and suffering, and medical expenses. Laura Kowal sought damages for loss of consortium. These suits were consolidated for trial. A jury verdict awarded Mark Kowal damages of $1,013,000 and Laura Kowal damages of $337,000. ² DOT filed a post-trial motion requesting that the verdict be molded to $250,000, the limitation on the amount of damages recoverable by a single plaintiff against the Commonwealth and its agencies, including DOT. Section 8528(b) of the Judicial Code (Code). ³ The trial judge granted the motion and calculated delay damages upon the $250,000 molded verdict.

The Kowals initially contend that the $250,000 limitation on a plaintiff's recovery of damages from the Commonwealth violates the Pennsylvania and United States Constitutions. We disagree.

The constitutional arguments raised by the Kowals were also raised in Lyles v. City of Philadelphia, 88 Pa.Commonwealth Ct. 509, 490 A.2d 936 (1985). We held there that the $250,000 damage limitation was not constitutionally infirm. Our Lyles decision controls, and we therefore reject the Kowals' constitutional challenges to the damage limitation provision. ⁴

The Kowals next contend that the trial judge erred in molding the total award to $250,000 because they are separate plaintiffs for purposes of recovery against the Commonwealth. We agree.

The Kowals argue that they are each plaintiffs in their own right because Laura Kowal's damages for loss of consortium are separate and distinct from her husband's damages stemming from his physical injuries. DOT asserts that a claim for loss of consortium merges with the injured spouse's personal injury claim and that recovery for both claims should therefore be limited to $250,000.

In a claim for loss of consortium, the injuries alleged are those to the uninjured spouse for loss of the injured spouse's society and services. Prosser, Law of Torts 889 (4th ed. 1971). Hopkins v. Blanco, 224 Pa.Superior Ct. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974), held that a wife has a separate right to recover for loss of consortium arising from injury to her husband.

Section 8528(b) of the Code states that recoveries against the Commonwealth for "[d]amages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate." (Emphasis added.) Section 8528(c) of the Code ⁵ states that damages are recoverable against the Commonwealth for, inter alia, loss of earnings, pain and suffering, medical expenses, and loss of consortium. A claim for loss of earnings, pain and suffering, and medical expenses is made by one plaintiff, the injured spouse, while a claim for loss of consortium is made by another plaintiff, the uninjured spouse. Section 8528 clearly authorizes each of these plaintiffs to recover a maximum of $250,000 from the Commonwealth.

DOT cites decisions from this Commonwealth holding that a claim for loss of consortium is derivative of the injured spouse's claim, ⁶ that a surviving spouse cannot recover damages for loss of consortium separate from a wrongful death action, ⁷ and that the injured spouse's contributory negligence reduces the damages recoverable from a third party for loss of consortium. ⁸ These holdings are neither controlling nor persuasive on the question herein raised. The Kowals concede, as they must, that a loss of consortium claim is derivative since it arises from the impact of one spouse's physical injuries upon the other spouse's marital privileges and amenities. This does not, however, alter the uninjured spouse's status as a plaintiff in her own right since her damages, although derivative, are personal to her. The decision holding that a loss of consortium claim cannot be maintained independently of a wrongful death action was based on the principle that a plaintiff is not entitled to a double recovery. The surviving spouse's loss of consortium is one of the injuries compensated under the wrongful death act. Slaseman v. Myers, 309 Pa.Superior Ct. 537, 455 A.2d 1213 (1983). The reduction of a recovery for loss of consortium due to the spouse's contributory negligence is grounded upon the derivative nature of the action, not upon a merging of the action with the spouse's personal injury claim.

We hold that Laura Kowal is a separate plaintiff who is entitled to recover $250,000 from DOT for loss of consortium irrespective of the damages awarded to Mark Kowal for his personal injuries.

The next contention by the Kowals is that DOT waived the damage limitations of Section 8528(b) of the Code by not filing a motion to mold the verdict until three months after entry of the verdict. We must reject this contention.

The Kowals base their argument on Pa.R.C.P. No. 227.1, which requires that post-trial motions be filed within ten days of the verdict. They rely on Richardson v. LaBuz, 81 Pa.Commonwealth Ct. 436, 474 A.2d 1181 (1984), which held that the Commonwealth waived the defense of the statute of limitations by not raising it in the form of a new matter. This Court has further indicated that the defense of sovereign immunity should be raised in new matter. Canfield Appeal, 83 Pa.Commonwealth Ct. 76, 476 A.2d 489 (1984). However, while sovereign immunity exists as a defense to be asserted by the Commonwealth, the legislature has in clear and unambiguous terms directed that recoveries against the Commonwealth "shall not exceed $250,000 in favor of any plaintiff." (Emphasis added.) This mandatory language obligates the courts to mold a jury's verdict in excess of this limitation, regardless of whether the formal procedures for requesting...