Sharff v. Ohio Cas. Ins. Co.
| Decision Date | 21 August 1991 |
| Docket Number | No. 22685-CA,22685-CA |
| Citation | 584 So.2d 1223 |
| Parties | Dennis Neil SHARFF and Elizabeth H. Sharff, Plaintiffs-Appellants, v. The OHIO CASUALTY INSURANCE CO., et al., Defendants-Appellees. 584 So.2d 1223 |
| Court | Court of Appeal of Louisiana — District of US |
Touchstone and Wilson by David M. Touchstone, Shreveport, for plaintiffs-appellants.
Mayer, Smith and Roberts by Richard G. Barham, Shreveport, for defendant-appellee The Ohio Cas. Ins. Co.
Blanchard, Walker, O'Quin & Roberts by Reginald W. Abrams, Shreveport, for defendant-appellee Travelers Ins. Co.
Before MARVIN, LINDSAY and STEWART, JJ.
The plaintiffs, Dennis Neil Sharff, and his mother, Elizabeth H. Sharff, appeal from a summary judgment rendered by the trial court in favor of defendant, Travelers Insurance Company, denying Mrs. Sharff's claim for loss of consortium. The court found that Mrs. Sharff could not recover for loss of consortium under Travelers' policy because Dennis Sharff's personal injury claim exhausted the per person policy limit. We affirm.
This case arises from a one car automobile accident. During the early morning hours of February 8, 1989, Dennis Neil Sharff was a passenger in a vehicle driven by Lisa Manasco and owned by her relative, Betty Tullos. Ms. Manasco was driving northbound on Clyde Fant Parkway in Shreveport when she lost control of the vehicle and ran off the road. Mr. Sharff was thrown from the vehicle and suffered a broken neck which has left him a quadraplegic.
Mr. Sharff settled with Ms. Manasco's liability insurer. He and his mother then filed suit against Travelers Insurance Company (Travelers), Ms. Tullos' insurer, and Ohio Casualty Insurance Company, Mrs. Sharff's insurer. The Travelers insurance policy contained a $50,000 per person limit for bodily injury and a $100,000 aggregate limit per accident. Travelers paid Mr. Sharff the $50,000 per person policy limit for bodily injury, as well as $2,500 for medical payments provided by the policy.
In July, 1990, Travelers filed a motion for summary judgment, claiming that its payment of the per person limits under its policy discharged its obligation to the plaintiffs. 1 However, the plaintiffs contend that Mrs. Sharff's claim for loss of consortium constitutes a separate injury claim and should be covered by the $100,000 per accident policy limit.
On August 29, 1990, judgment was filed by the trial court granting Travelers' motion for summary judgment. In reasons for judgment, the trial court found that Mrs. Sharff's claim for loss of consortium was a derivative claim arising from her son's bodily injury claim and was thereby limited by the $50,000 per person policy limit. Since Dennis Sharff's injuries far exceeded the $50,000 per person limit, Mrs. Sharff was not allowed any recovery on her claim for loss of consortium.
In plaintiffs' appeal, they contend that Mrs. Sharff is another person injured by this accident and therefore her claim is not limited to the $50,000 per person limit for bodily injury already paid to her son. She contends that her claim is recoverable under the $100,000 per accident policy limit. Therefore, the plaintiffs contend the trial court erred in rendering a summary judgment in favor of Travelers.
Travelers relies upon the Louisiana jurisprudence which holds that a consortium claim is not a claim for bodily injury and is only derivative, arising out of the injuries caused to others. Based on this jurisprudence, Travelers urges that the summary judgment should be affirmed.
To the contrary, the plaintiffs argue that jurisprudence from other states holds that loss of consortium claims are separate and distinct injuries and therefore recovery for such claims is not subject to the per person bodily injury limits of insurance policies. We find the plaintiffs' argument to be meritless.
The right to recover damages for loss of consortium is provided in LSA-C.C. Art. 2315:
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Damages include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.
Motions for summary judgment are governed by LSA-C.C.P. Art. 966 which provides in pertinent part:
The plaintiff or defendant in the principal or incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed....
A motion for summary judgment is to be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to recovery as a matter of law. LSA-C.C.P. Art. 966; Swindle v. Haughton Wood Company, Inc., 458 So.2d 992 (La.App. 2d Cir.1984).
The issue in this case is whether the trial court correctly found that the mother's claim for loss of consortium was derivative from her son's bodily injury claim and therefore both claims were limited to the $50,000 per person bodily injury limit of the policy.
The insurance policy in this case does not define bodily injury. However, it does provide in Part A that:
We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident....
"Covered person" as used in this part means:
1. You or any family member for the ownership, maintenance or use of any auto or trailer.
2. Any person using your covered auto.
3. For your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part ...
Regarding the limit of liability, the policy also provides that:
The limit of liability shown in the Declarations for "each person" for bodily injury liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for "each person," the limit of liability shown in the Declarations for "each accident" for bodily injury liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident....
The plaintiffs argue that the issue of whether a claim for loss of consortium is derivative of a personal injury claim has arisen all across the country and a large body of jurisprudence has developed holding that such claims are distinct and individual injuries, compensable as separate injuries and therefore recovery is not limited to the per person limit for bodily injury. 2
However, the defendant, Travelers, has also cited numerous cases from other states in which the courts have found that loss of consortium claims are secondary to bodily injury claims and are limited to the per person limits for liability. 3
No clear rule can be discerned from examining the disparate results reached in the jurisprudence cited by both parties from other jurisdictions. Rather, we choose to follow the emerging rule in the Louisiana jurisprudence regarding this issue.
In Albin v. State Farm Mutual Automobile Insurance Company, 498 So.2d 171 (La.App. 1st Cir.1986), writ denied 498 So.2d 1088 (La.1986), a husband was injured in an automobile accident and damages for his injuries exceeded the $10,000 per person bodily injury limit of the insurance policy. The wife was not physically injured but claimed loss of consortium. The court was called upon to consider whether a claim for loss of consortium, in the absence of any physical injury on the part of the claimant, was a bodily injury within the meaning of an automobile liability insurance policy which is similar to the policy in the instant case. The court concluded that "bodily injury" generally refers only to injury to the body, or to sickness or disease contracted as a result of injury and that the wife's loss of consortium injuries did not fit that definition. The court held that the loss of consortium and society, especially in the absence of any physical manifestations or injuries to the claimant resulting from such loss, is not a bodily injury within the meaning of the automobile liability policy construed in that...
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