Priester v. Turner

• Docket Number: A23A1465
• Decision Date: 28 December 2023
• Parties: PRIESTER v. TURNER et al.
• Court: Georgia Court of Appeals

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PRIESTER
v.
TURNER et al.

No. A23A1465

Court of Appeals of Georgia, Third Division

December 28, 2023

DOYLE, P. J.,PIPKIN, J., and SENIOR JUDGE FULLER

FULLER, SENIOR JUDGE

The trial court granted summary judgment to the defendants on Shelly Priester's claim for loss of consortium, ruling that the prior dismissal with prejudice of her husband's underlying personal injury action barred her separate lawsuit. Priester appeals. Because the Supreme Court's decision in Stapleton v. Palmore, 250 Ga. 259, 259 (297 S.E.2d 270) (1982), requires a different result, we reverse.

The relevant facts, which are not disputed, show that Priester's husband, Mark Priester, was involved in a vehicle accident with Charles Turner. Mark sued Turner to recover for his injuries and also served State Farm Mutual Automobile Insurance Company as his underinsured motorist carrier. Mark voluntarily dismissed that complaint without prejudice, but later filed a renewal action against Turner and again

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served State Farm. The trial court dismissed the renewal action with prejudice, ruling that Mark had failed to serve Turner and had not responded to State Farm's discovery requests. Mark did not appeal that ruling.

Two years after the dismissal of Mark's renewal action, Priester filed this lawsuit against Turner, asserting a claim for loss of her husband's consortium as a result of the accident, as well as claims for punitive damages and attorney fees. Priester apparently served State Farm, which filed an answer. Turner and State Farm moved for summary judgment, arguing that because Mark's personal injury claim was "barred as a matter of law," Priester's derivative loss of consortium claim also was barred. The trial court granted the defendants' motions, and Priester appeals, arguing that the trial court erred because the outcome of Mark's claim has no effect on her consortium claim.

The trial court relied primarily on Holloway v. Northside Hosp., 230 Ga.App. 371 (496 S.E.2d 510) (1998), in which a husband and wife filed a single complaint against the hospital, with the wife asserting personal injury claims based on a fall she sustained as a patient there, and the husband asserting a loss of consortium claim. We affirmed the trial court's dismissal of the wife's claim for failure to attach an expert affidavit as

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required by OCGA § 9-11-9.1. Id. We also held that the trial court properly dismissed the husband's claim because

[his] action is a derivative one, stemming from the right of the other spouse to recover for her injuries. When the other spouse cannot recover from the alleged tortfeasor as a matter of law, . . . the alleged tortfeasor also is not liable for loss of consortium arising from those injuries. Here, [the wife] cannot recover because of her failure to attach a professional negligence affidavit, and thus [the husband] has no claim for the loss of consortium

Id. at 371. We have applied this same reasoning in many other cases, holding that when both spouses sue an alleged tortfeasor in a single action, a judgment against the injured spouse necessarily precludes recovery on the other spouse's loss of consortium claim. See, e.g., Sheaffer v. Marriott Intl., ...