DocketNumber: C.A. No. 93-545
Judges: <underline>GOLDBERG, J.</underline>
Filed Date: 6/21/1994
Status: Non-Precedential
Modified Date: 4/18/2021
The parties allege that plaintiff, William Egan, is the husband of Bette Egan. Mrs. Egan, in a separate action, alleged she was injured as a result of defendant's negligence. She sought recovery in the case of Bette Egan v. Roger Ashley C.A. WC 93-241. That suit was dismissed by stipulation when the parties entered into a settlement agreement. Mrs. Egan executed a "full and final release of all claims arising out of the loss of April 5, 1991" in favor of the defendant. The release discharged all claims that Mrs. Egan "asserted or could have asserted against Roger Ashley." The settlement check was payable to and cashed by Bette A. Egan only.
Mr. Egan is now claiming damages as a direct result of Roger Ashley's negligence and alleges he was deprived of his wife's companionship and society. He further alleges he has incurred and will continue to incur expenses for his wife's care and medical treatment.
Defendant is moving to dismiss on the ground that Roger Egan's claim for loss of consortium is derivative of that of his wife. Since Bette's claim no longer exists, defendant claims that William's cannot proceed. Sama v. Cardi Corporation, et al.,
The sole function of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint. Palmigiano v. State,
It is axiomatic that a claim for loss of consortium under General Laws 1956 (1985 Reenactment) § 9-1-41A is derivative in nature. Hodor v. United Service Auto. Assoc.,
Despite its derivative beginnings, the Supreme Court has recognized that loss of consortium is a separate and distinct cause of action. Normandin v. Levine,
In Hodor v. United Services, the Court revised the findings of the trial justice that a loss of society claim was a separate and distinct cause of action subject to the "each accident" limit of liability of the insurance contract. Hodor,
This case is not about the maximum coverage provided for in an insurance contract. Mrs. Egan's claim was not involuntarily terminated as a matter of law, Sama v. Cardi Corp., or "capped" due to the policy limits of an insurance policy, Hodor. Rather, her claim and her claim alone was negotiated and settled. A cause of action could have proceeded to trial but instead she chose to accept a settlement.
Derivative though it is, Mr. Egan's claim is subject to the same defenses assertable against Mrs. Egan's claim but the derivative nature of the claim does not give one spouse the right to waive or terminate the rights of the other spouse. Neely v.Kossove,
The defendant also raises a Rule 12(b)(7) defense and seeks dismissal of the action on the ground that plaintiff William Egan failed to join his wife, the injured spouse, as an indispensable party. The argument simply begs the question of whether or not a claim for loss of consortium can survive a settlement of the personal injury action.
Defendant confuses the question of the mandatory joinder of parties with that of the mandatory joinder of claims. The question is whether or not the non-injured spouse possesses a particular or special interest sufficient to permit him to seek relief without the joinder of the claim of his wife, not the mere presence of his wife as a party to the suit. Daluz v.Hawksley,
Other jurisdictions have addressed the question of the mandatory joinder of derivative claims. Siskind v. Norris, etals., 548 N.Y.S.2d 160 (AD 1 Dept. 1989); Brown v. Metzger,
Historically in Rhode Island a husband's damages resulting from his wife's injuries were limited to compensation for the loss of her homemaker services and for expenses incurred for her care and treatment. The Rhode Island Supreme Court consistently refused to recognize a cause of action for loss of companionship and society. Golden v. R.I. Greene Paper Co.,
Counsel shall prepare an order consistent with this decision.
Brown v. Metzger , 118 Ill. App. 3d 855 ( 1983 )
Amaral v. Cabral , 494 A.2d 94 ( 1985 )
Daluz v. Hawksley , 116 R.I. 49 ( 1976 )
Normandin v. Levine , 621 A.2d 713 ( 1993 )
Grasso v. Byrd , 417 A.2d 911 ( 1980 )
Hodor v. United Services Automobile Ass'n , 637 A.2d 357 ( 1994 )
Sama v. Cardi Corp. , 569 A.2d 432 ( 1990 )
Palmigiano v. State , 120 R.I. 402 ( 1978 )
Ellis v. Rhode Island Public Transit Authority , 586 A.2d 1055 ( 1991 )
Martin v. United Electric Railways Co. , 71 R.I. 137 ( 1945 )