Oldani v. Lieberman, Docket No. 80747

• Decision Date: 12 November 1985
• Docket Number: Docket No. 80747
• Citation: 144 Mich.App. 642,375 N.W.2d 778
• Parties: Harry OLDANI, Plaintiff-Appellant, v. Arthur S. LIEBERMAN, D.O., Terry A. Podolski, D.O., Michael L. Fox, D.O., and Eric N. Coffman, D.O., Individually and d/b/a the Macomb Medical Clinic, Defendants-Appellees. 144 Mich.App. 642, 375 N.W.2d 778
• Court: Court of Appeal of Michigan — District of US

Page 778

375 N.W.2d 778

Harry OLDANI, Plaintiff-Appellant, v. Arthur S. LIEBERMAN, D.O., Terry A. Podolski, D.O., Michael L. Fox, D.O., and Eric N. Coffman, D.O. Individually and d/b/a the Macomb Medical Clinic Defendants-Appellees.

Docket No. 80747.

144 Mich.App. 642, 375 N.W.2d 778

Court of Appeals of Michigan.

Submitted May 15, 1985.

Decided Aug. 5, 1985.

Released for Publication Nov. 12, 1985.

[144 MICHAPP 643] John J. Kraus, Jr., Mt. Clemens, for plaintiff-appellant.

Plunkett, Cooney, Rutt, Watters, Stanczyk & [144 MICHAPP 644] Pedersen, P.C., by Robert G. Kamenic and Abe L. Frank, Detroit, for defendants-appellees Terry A. Podolski and Macomb Medical Clinic, P.C.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C., by Susan Healy Zitterman, Detroit, for defendants-appellees Eric Coffman and Michael Fox.

Before BEASLEY, P.J., and GRIBBS and LAMB, ^* JJ.

BEASLEY, Presiding Judge.

Plaintiff, Harry Oldani, appeals as of right from the trial court's order granting accelerated judgment to defendants in this action for loss of consortium and medical expenses. The trial court concluded that releases executed by plaintiff's ex-wife, Judith Oldani, barred plaintiff's claim.

Judith and Harry Oldani were married in 1969. In 1980, defendants treated Judith Oldani. During that treatment, some of the defendants negligently prescribed drugs for Mrs. Oldani which resulted in her hospitalization and caused her permanent injury. On April 29, 1981, Judith Oldani filed a complaint against defendants, alleging medical malpractice and seeking damages. On May 18, 1981, she filed a complaint for divorce. On or about February 23, 1982, plaintiff filed his complaint in the within case, alleging that, as a result of defendants' negligence, he lost the use, services, companionship and consortium of his wife, and that he was liable for his wife's medical and hospital costs, to his detriment. On April 15, 1982, a judgment of divorce dissolving the parties' marriage was entered in Macomb County Circuit Court. The divorce judgment was silent with respect to any proceeds from the parties' malpractice claims against defendant doctors. After Judith Oldani [144 MICHAPP 645] settled and released her claims against all defendants for $167,500, ¹ defendants successfully moved for accelerated judgment in this action.

On appeal, plaintiff raises two issues. First, he argues that his right to sue for loss of consortium was not lost by his ex-wife's settlement with defendants, because it was a separate claim for injury to him, and his wife had no power to settle or release that separate claim.

Michigan case law permits a husband or wife to recover damages for loss of consortium when his or her spouse is injured by the negligence of a third party. ² Loss of consortium includes conjugal fellowship, companionship, services and all other incidents of the marriage relationship. ³

In Michigan, a claim for loss of consortium is derivative and recovery in an action for loss of consortium is contingent upon the injured person's recovery of damages. ⁴ In Rusinek v. Schultz, Snyder & Steele Lumber Co., ⁵ the Supreme Court said:

"Since it is derived from the injured spouse's action, a claim of loss of consortium does not create a new case nor does it contribute significantly to the problems the act was intended to alleviate."

When an injured person's claim is barred by the exclusive remedy provision of the Worker's Disability Compensation Act, ⁶ the loss of consortium [144 MICHAPP 646] claim is also barred. ⁷ Where the injured party prevails, the uninjured spouse has a right to a finding of his or her claimed loss and asserted damage. ⁸

In general, a spouse seeking damages for loss of consortium should be joined in the principal case brought by the other spouse. GCR 1963, 205, now MCR 2.205, which spells out the circumstances for necessary joinder of parties, would seem to be applicable. Particularly, GCR 1963, 205.2(3), now MCR 2.205(B)(3), requires the trial court to decide whether prejudice to the defendant may result from the nonjoinder. Since a loss of consortium claim is always derivative of the principal claim, failure to join the two suits can force a defendant to defend similar claims regarding liability. It is always true that, if the spouse loses the principal action on the basis of no liability, then the loss of consortium claim must likewise fail. Consequently, we believe that loss of consortium claims come under GCR 1963, 205, now MCR 2.205, requiring necessary joinder and, therefore, the loss of consortium claim must be joined with the principal claim unless there is some good reason preventing it.

In the within case, plaintiff, Harry Oldani, claims that he tried to intervene and be consolidated with Judith Oldani's case against defendant doctors. Since plaintiff did, in fact, start the within case against the same defendants while Judith Oldani's case against those same defendants was still pending, it would seem that his case should have been joined with that of Judith, unless there [144 MICHAPP 647] were compelling reasons preventing it. We do not believe that the mere fact that Judith and Harry Oldani were involved in a divorce proceeding is a good reason. Thus, we hold that it was error for the trial court to deny the motion to consolidate the two claims, the one brought by Judith and the other by Harry.

However, even if the two cases had been joined and consolidated for trial, the same issue would arise, namely, what effect should be given to Judith's settlement of the principal claim against defendants. In the usual case, where a husband and wife bring a principal claim and an additional loss of consortium claim in the same suit, a settlement is only made with both parties. More specifically, a defendant settling with two such plaintiffs would be expected to make a payment to the two plaintiffs, to take releases from each, and to seek entry of an order dismissing the case as to each. However, the within case is not the usual case, for the reason that the two plaintiffs, Harry and Judith, were in the midst of a divorce case, and there does not appear to have been any joint settlement whereby Harry would receive any of the settlement money. ⁹ In such a situation, we are reluctant to hold that Harry's loss of consortium claim has been released by the fact of an executed release by Judith and payment to her of substantial sums.

In Ramsey v. DiLegge & Sons, Inc., ¹⁰ which the trial court relied upon, we held that the spouse's action for loss of consortium fails if the primary case fails, saying:

"His wife asserts a cause of action for her loss of his [144 MICHAPP 648] consortium. This is derivative in nature. If his case fails, so does hers. If he prevails, she has a right to a finding of her claimed loss and asserted damage."

However, in this case, plaintiff's wife settled her claim for a considerable sum, which indicates that she had a valid claim for medical malpractice. That presents a very different situation than one where the allegedly injured party has no claim. In fact, it is analogous to the situation in which the injured spouse has prevailed, rather than that in which the injured spouse has no claim. In this setting where, given the size of the settlement, plaintiff's wife apparently sustained serious injuries, it is possible that plaintiff may also have suffered damages.

In courts in other jurisdictions which have considered this question, the decisions are divided. In 29 A.L.R.4th 1201, the text writer says:

"Where a person who has been injured reaches a settlement agreement with the party who injured him, and in so doing executes a release by which he relieves the tortfeasor of all future liability for his injuries, the question has arisen as to whether the injured person's spouse may then bring an action for loss of consortium suffered as a result of the same injury. Where the action for loss of consortium is seen as purely derivative of the original cause of action for the injury, it has been held that once the original cause of action has been released, the action for loss of consortium is also barred. However, the more prevalent view seems to be that the loss of consortium suit is not barred as it is a separate and independent cause of action which is the property of the spouse and cannot be controlled by the injured person."

In Beardslee v. Michigan Claim Services, Inc., ¹¹ we said:

[144 MICHAPP 649] "To the extent his [plaintiff's] wife's claim is derivative and relies upon losses caused by the original injury, it is likewise extinguished. * * * Since she [plaintiff's wife] did not sign the release and was not a party to the redemption proceedings, however, that portion of the wife's claim for loss of consortium based upon the claim of fraud is not barred."

Since there is no fraud claim here, it can be argued that literal application of Beardslee would mean that the release given by Judith Oldani operated to release Harry Oldani's loss of consortium claim.

However, we believe that the holding in Beardslee is best understood by reference to the exclusive remedy provision of the Worker's Disability Compensation Act, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131), which provides in pertinent part:

"The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer. As used in this section and section 827 'employee' includes the...