Rosander v. Copco Steel & Engineering Co.
| Decision Date | 13 January 1982 |
| Docket Number | No. 3-681A155,3-681A155 |
| Citation | 29 A.L.R.4th 1196,429 N.E.2d 990 |
| Parties | Shirley ROSANDER, Plaintiff-Appellant, v. COPCO STEEL & ENGINEERING COMPANY, James H. Pankow, Agent and John Doe, whose true name is unknown, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Frank J. Petsche, Matthews-Petsche-Zych & Associates, South Bend, for plaintiff-appellant.
Edward N. Kalamaros and Thomas F. Cohen, Edward N. Kalamaros & Associates, P.C., South Bend, for defendants-appellees.
Shirley Rosander is appealing the decision of the trial court which granted Copco's motion for summary judgment thereby dismissing her lawsuit. The singular issue raised by this appeal is whether Rosander's cause of action for loss of consortium, resulting from injuries sustained by her husband from alleged negligent acts of Copco, should be barred due to the fact her husband settled his claim against Copco and executed a release.
At the time of the accident, Shirley's husband, Darwin Rosander, was employed by Colip Brothers Electric Company. While working at Copco's plant, he was struck in the back with a piece of wood by an employee of Copco, causing injury to his back, hip, and leg. Darwin received workmen's compensation benefits from his employer. He settled his claim with Copco and at that time executed a release of all claims. Shirley was not a party to the release, and she filed a separate action against Copco for loss of consortium. The trial court granted Copco's motion for summary judgment and stated in its written opinion:
"Inasmuch as the right of the wife is derivative of her husband's right, it appears to this Court that a settlement by the husband of his claim is likewise a settlement of his spouse's derivative suit and that the failure to settle both causes at the same time should bar a spouse from subsequently maintaining an independent action for loss of consortium."
By this time it is well settled in Indiana that a wife has a cause of action for loss of consortium resulting from injury sustained by her husband from negligent acts of a third person. Troue v. Marker (1969), 253 Ind. 284, 252 N.E.2d 800. However, the issue of whether a non-injured spouse's cause of action for loss of consortium must be joined with the injured spouse's action for personal injuries is a question of first impression in Indiana. Our Supreme Court in Troue implied the existence of actions filed independently and distinctly from each other, 1 however, the issue was not decided at that time.
It cannot be denied that a claim for loss of consortium is derivative in that without an injury to one spouse, the other spouse would have no action. As such, it is subject to some of the same defenses as the action from which it is derived. Arthur v. Arthur (1973), 156 Ind.App. 405, 296 N.E.2d 912. Nevertheless, placing actions in a derivative posture does not give one party the right to waive the rights of another. Shirley was not a party to the settlement and release negotiated by Darwin, thus she is not bound by it and is free to pursue her separate cause of action. See Gimbel, Administrator v. Smidth (1856), 7 Ind. 627.
Copco contends that joinder of the actions is required in the interest of judicial economy and to prevent the danger of double recovery and inconsistent verdicts. The argument concerning inconsistent verdicts is not well taken in this action. The situation at hand involves a release and a release is not dispositive of the merits of an action.
Troue v. Marker, supra, settled the problem of double recovery caused by loss of consortium claims. In Troue the Court said:
"We therefore hold that a wife in this state is entitled to recover for loss of consortium against a wrong-doer who has injured her husband, but she is not entitled to recover for loss of support due from the husband to such wife in such action." 252 N.E.2d at 806.
Copco further argues that the Indiana Workmen's Compensation Act, specifically the exclusive remedy provisions, precludes Shirley from bringing any action against it. This...
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WRONGS TO US.
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