Zoda v. Mutual of Enumclaw Ins. Co., 5402-III-1
| Decision Date | 12 July 1984 |
| Docket Number | No. 5402-III-1,5402-III-1 |
| Citation | 684 P.2d 91,38 Wn.App. 98 |
| Parties | Donald W. ZODA, Appellant, v. MUTUAL OF ENUMCLAW INSURANCE COMPANY, Respondent. |
| Court | Washington Court of Appeals |
Timothy Mahoney, Kennewick, for appellant.
Diehl R. Rettig and James E. Hurson, Raekes, Rettig, Osborne & Forgette, Kennewick, for respondent.
One issue is presented: Whether a husband can claim damages for loss of consortium under the underinsured/uninsured portion of his automobile insurance policy after his wife has settled for the policy limits under the coverage applicable to her injuries.
On September 30, 1980, Mr. Zoda and his wife were involved in a collision with an uninsured motorist. Mrs. Zoda was seriously injured leaving her permanently disabled with loss of function in her hip joint. The Zodas were insured with Mutual of Enumclaw Insurance Company. The policy provided uninsured motorist coverage of $300,000 per occurrence with a $100,000 single person limit. On April 28, 1981, Enumclaw paid Mrs. Zoda the single person limit of $100,000, but it was generally agreed the damages for her injuries exceeded that amount.
Mr. Zoda was also injured in the accident. He sought payment under the policy not only for his own physical injuries but also for loss of consortium as a result of his wife's inability to fully function as a homemaker and wife. Enumclaw rejected the consortium claim and apparently declined to submit to arbitration. On April 5, 1982, Mr. Zoda commenced this action to compel arbitration of Mr. Zoda's claim for loss of consortium. The court refused to allow arbitration on the ground the limits of the policy had been paid to Mrs. Zoda for her injuries and this payment included Mr. Zoda's consortium claim.
Section III of the policy providing uninsured motorists coverage states:
WE WILL PAY:
1. Damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident.
(Italics ours.) Bodily injury as used in the policy means "bodily injury, sickness or disease including death resulting from these."
Mr. Zoda asserts the consortium claim is not restricted by the single person limit of the policy. We disagree. The policy covers "bodily injury sustained by a covered person ..."--a direct physical injury to one person. As the court in Thompson v. Grange Ins. Ass'n, 34 Wash.App. 151, 161-62, 660 P.2d 307 (1983), stated:
We next observe the widely held rule that damages for loss of consortium are consequential, rather than direct, damages. They necessarily are dependent upon a bodily injury to the spouse who can no longer perform the spousal functions; it does not arise out...
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