Federal Kemper Ins. v. Karlet
Annotate this CaseJanuary 1993 Term
___________
No. 21312
___________
FEDERAL KEMPER INSURANCE COMPANY,
Plaintiff
v.
HERBERT J. KARLET, LUANNA SUE KARLET,
BRIAN KARLET, KELLI MICHELLE KARLET,
CHARLOTTE BALL, AS ADMINISTRATRIX
OF THE ESTATE OF LOUIA H. MARTIN
AND CHARLES DANIEL BALL,
Defendants
___________________________________________________
Certified Question from the United States District
Court for the Southern District of West Virginia
Honorable Charles H. Haden II, Judge
Civil Action No. 3:92-0194
CERTIFIED QUESTION ANSWERED
AND CASE DISMISSED
___________________________________________________
Submitted: January 13, 1993
Filed: February 25, 1993
R. Carter Elkins
Campbell, Woods, Bagley, Emerson, McNeer & Herndon
Huntington, West Virginia
Attorney for the Plaintiff
Mark H. Hayes
Huddleston, Bolen, Beatty, Porter & Copen
Huntington, West Virginia
Attorney for the Defendants
James C. Peterson
West Virginia Trial Lawyers Association
Amicus Curiae Committee
JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
When a person is bodily injured in an automobile accident, an individual other than the bodily-injured person may also suffer damages as a result of such accident through loss of consortium. The claim for loss of consortium by an individual other than the one suffering bodily injury as a result of an automobile accident is generally recognized as arising out of the claim for damages of the bodily-injured person. As a result, the claim of the bodily-injured person and the claim for loss of consortium are covered within the same per person limit of liability provisions under the automobile insurance policy. More specifically, when the per person limit of liability in a policy provides coverage for "all damages arising out of bodily injury sustained by one person as a result of one accident," both the claim of the bodily injured person and the claim for loss of consortium are covered within the same per person limit of liability, and recovery for both claims may not exceed the fixed amount of the maximum limit of damages under the per person limit of liability. If, however, there is language in the policy which includes loss of consortium as a separate bodily injury, such loss of consortium claim is entitled to a separate per person limit of liability.
McHugh, Justice:
This matter is before the Court upon certified question
by the United States District Court for the Southern District of
West Virginia for clarification as to whether minor children
claiming loss of parental consortium are treated as separate
injured persons, subject to separate "per person" and "per
occurrence" insurance liability limits, based on language in an
automobile insurance policy.See footnote 1
I
Charles Daniel Ball and Herbert J. Karlet were the
drivers of two vehicles involved in a collision in Wayne County,
West Virginia, in the fall of 1990. Mr. Karlet's wife, Luanna, and
son, Brian, were passengers in the vehicle he was driving, and all
three of them were injured as a result of the accident.See footnote 2 Mr. and
Mrs. Karlet also have a daughter, Kelli, who was not a passenger in
the vehicle.
The parties represent to this Court that Mr. Ball was the
party at fault in the accident. The vehicle driven by Mr. Ball was
owned by his grandmother, Louia H. Martin,See footnote 3 and was insured by
Federal Kemper. The insurance policy issued by Federal Kemper to
Mrs. Martin provides liability coverage limits of $100,000 per
person and $300,000 per occurrence, and was in effect on the date
of the accident.
The Karlets' children filed a loss of parental consortium
claim for injury to the parent-child relationship as a result of
the accident.See footnote 4 Due to the parties' dispute over the loss of
parental consortium claim, Federal Kemper filed a declaratory
judgment action in the federal district court seeking a declaration
from the court that the loss of parental consortium claim asserted
by the Karlets' children was included with the each person
liability limits applicable to each of their injured parents.See footnote 5
The district court declined to render a declaratory
judgment on the issue presented by Federal Kemper, and instead
certified the following question to this Court: "Are minor
children claiming loss of parental consortium treated as separate
injured persons, subject to separate per person and per occurrence
insurance liability limits, based on the language of Federal
Kemper's insurance policy?"See footnote 6
II
In response to the certified question we must determine
whether the minor children's claims of loss of parental consortium
should be treated as separate bodily injuries under the per person
limits of liability under the policy. Federal Kemper maintains
that the loss of consortium claim asserted by the Karlets' children
arises from the bodily injuries suffered by their parents in the
accident, and that any claim they may have for loss of parental
consortium is subject to the $100,000 per person limits of
liability applicable to their parents' bodily injury claims. The
Karlets contend that a child's claim for loss of parental
consortium is a separate claim entitled to an independent per
person recovery under the automobile insurance policy.
The insurance policy at issue in the present case
provides bodily injury liability coverage of $100,000 each person,
$300,000 each occurrence. The insurance policy also contains
specific provisions relating to those limits of liability. The
policy at issue expressly provides that "[t]he limit of liability
shown in the Declarations for the coverage is our maximum limit of
liability for each person injured in any one accident." More
important, however, to the particular facts of this case, is the
language in this policy which appears under the " LIMIT OF
LIABILITY" provision, and states:
The limit of liability shown in the
Declarations applicable to 'each person' is
our maximum limit for all damages arising out
of bodily injury sustained by one person as a
result of any one accident. The limit of
liability shown in the Declarations applicable
to 'each occurrence' is our maximum limit for
all damages arising out of bodily injury
sustained by two or more persons as a result
of any one accident.
One of the issues the certified question before us
essentially raises is whether the minor children's claims for loss
of parental consortium fall within the definition of bodily injury
under the policy, and therefore would be subject to separate per
person limits of liability. The insurance policy defines bodily
injury as follows: "' Bodily injury' means bodily harm, sickness or
disease, including death that results." The definition of bodily
injury under this policy clearly does not include loss of
consortium as a separate bodily injury.
The issue of whether minor children claiming loss of
parental consortium are treated as separate injured persons subject
to separate per person and per occurrence limits of liability is
one of first impression for this Court.See footnote 7 In the cases we have
reviewed from other jurisdictions, the insurance policy language relating to the per person limitation and defining bodily injurySee footnote 8
varies to some degree. Yet, it appears to be fairly well-settled
in other jurisdictions that where there is one person bodily-injured in an automobile accident and the automobile insurance
policy contains a per person limitation which covers all damages
arising out of bodily injury sustained by one person, the loss of
consortium claim by either the injured person's spouse or child,
who was not physically injured in the accident, is recognized as
arising out of the claim of the bodily-injured person and subject
to the per person limitation. See Weekley v. State Farm Mutual
Automobile Ins. Co., 537 So. 2d 477 (Ala. 1989); Stillman v.
American Family Ins., 785 P.2d 114 (Ariz. Ct. App. 1990); Hauser v.
State Farm Mutual Automobile Ins. Co., 252 Cal. Rptr. 569 (Cal. Ct.
App. 1988); Izzo v. Colonial Penn Ins. Co., 524 A.2d 641 (Conn.
1987); Creamer v. State Farm Mutual Automobile Ins. Co., 514 N.E.2d 214 (Ill. Ct. App. 1987); Lepic v. Iowa Mutual Ins. Co., 402 N.W.2d 758 (Iowa 1987); Gillchrest v. Brown, 532 A.2d 692 (Me. 1987);
Santos v. Lumbermens Mutual Casualty Co., 556 N.E.2d 983 (Mass.
1990); Bain v. Gleason, 726 P.2d 1153 (Mont. 1986); Allstate
Insurance Co. v. Pogorilich, 605 A.2d 1318 (R.I. 1992); Richie v.
American Family Mutual Ins. Co., 409 N.W.2d 146 (Wis. 1987).See footnote 9 See
also 8A John Alan Appleman, Insurance Law and Practice § 4893
(1981); Jane M. Draper, Annotation, Consortium Claim of Spouse,
Parent or Child of Accident Victim as Within Extended "Per
Accident" Coverage Rather than "Per Person" Coverage of Automobile
Liability Policy, 46 A.L.R. 4th 735 (1986 & Supp. 1992);
Annotation, Construction and Application of Provision in Liability
Policy Limiting the Amount of Insurer's Liability to One Person, 13
A.L.R. 3rd 1228 (1967 & Supp. 1992). Contra Allstate Ins. Co. v.
Fibus, 855 F.2d 660 (9th Cir. 1988) (automobile policy which
provided up to $100,000 for damages for bodily injury to any one
person in one occurrence, and which did not expressly aggregate
consortium claims with underlying bodily injury claims, would be
interpreted to provide separate coverage for consortium claim);
Abbellon v. Hartford, 212 Cal. Rptr. 852 (Cal. Ct. App. 1985)
(although wife's cause of action arose from bodily injury to her
husband, the injury suffered was personal to the wife and an injury
to one's emotional and psychological state should be treated no
differently than an injury to one's physical well-being); Bilodeau
v. Lumbermens Mutual Casualty Co.,See footnote 10 467 N.E.2d 137 (Mass. 1984)
(the phrase "injured person" included a loss-of-consortium claimant
and the loss-of-consortium claimant must be considered a separate
person from the bodily-injured person).
In Pogorilich,See footnote 11 the Supreme Court of Rhode Island
recognized that the loss of consortium claim by a spouse who has
not suffered a bodily injury is a derivative action, and found that
the "each person" limitation therefore applies. In so finding, the
court explained:
The term 'each person' is the total limit for
all damages arising out of bodily injury to
one person in any one motor vehicle accident.
It is undisputed that in the case at bar [the
husband] was the only person who suffered
bodily injury in the motor vehicle
accident. . . . Although [the wife] was
entitled to bring an action for loss of
consortium . . ., her action was derivative
and could not be construed as an independent
action for bodily injury. . . . [T]he loss of
consortium claim is derived from the bodily
injury suffered by the spouse and is not truly
independent but rather derivative and attached
inextricably to the claim of the injured
spouse.
605 A.2d at 1320.
The Supreme Court of Connecticut, in Izzo, also explained
why the per person limit of liability applies to damages for loss
of consortium resulting from bodily injury to one person:
An often cited reason for holding that a
spouse's claim for loss of consortium is
included within the 'per person' limit of
liability for damages because of bodily injury
to one person is that the term 'one person'
repeatedly has been construed to refer to the
person injured directly and the words 'each
occurrence' to include the injuries of several
persons, regardless of how many persons may
suffer loss. . . . The limitation applies to
all damages sustained by all persons as a
result of bodily injury to one person. This
construction does not render the 'per
occurrence' limit a nullity because that
provision applies to situations where more
than 'one person' suffers 'bodily injury' in a
single occurrence.
524 A.2d at 644 (emphasis added).See footnote 12
We are persuaded by the reasoning of the numerous
jurisdictions cited above which have held that, where the language
of the policy is clear and unambiguous, claims for damages for loss
of consortium, arising out of bodily injury to one person in one
accident, are subject to the per person limit of liability. Thus,
we clarify that when a person is bodily injured in an automobile
accident, an individual other than the bodily-injured person may
also suffer damages as a result of such accident through loss of
consortium. The claim for loss of consortium by an individual
other than the one suffering bodily injury as a result of an
automobile accident is generally recognized as arising out of the
claim for damages of the bodily-injured person. As a result, the
claim of the bodily-injured person and the claim for loss of
consortium are covered within the same per person limit of
liability provisions under the automobile insurance policy. More
specifically, when the per person limit of liability in a policy
provides coverage for "all damages arising out of bodily injury
sustained by one person as a result of one accident," both the
claim of the bodily injured person and the claim for loss of
consortium are covered within the same per person limit of
liability, and recovery for both claims may not exceed the fixed
amount of the maximum limit of damages under the per person limit
of liability. If, however, there is language in the policy which
includes loss of consortium as a separate bodily injury, such loss
of consortium claim is entitled to a separate per person limit of
liability.
III
For the reasons set forth herein, the certified question
presented to this Court is answered in the negative.See footnote 13 Having
answered the certified question, this case is dismissed from the
docket of this Court.
Certified question answered
and case dismissed.
Footnote: 1 The question now before us has been certified from
federal district court pursuant to the Uniform Certification of
Questions of Law Act, W. Va. Code, 51-1A-1 to 51-1A-12 (Repl. Vol.
1981). Pursuant to these statutory provisions, we must determine,
in answering a certified question, the present law bearing on the
issue certified. We recognized this directive in syllabus point 1
of Morningstar v. Black & Decker Manufacturing Co., 162 W. Va. 857,
253 S.E.2d 666 (1979): "From the language of W. Va. Code, 51-1A-1,
together with the conventional construction placed by other courts
on similar certification statutes, this Court, in answering a
certified question, must of necessity determine the present law
bearing on the issue certified."
Footnote: 2 Although the parties have not advised this Court of the
extent of the parties injuries, counsel on behalf of the Karlets
represented to the Court at oral argument that the parents'
injuries were more severe than their son's injuries.
Footnote: 3 Mrs. Martin is now deceased.
Footnote: 4 This Court recognized a cause of action for loss of
parental consortium in Belcher v. Goins, 184 W. Va. 395, 400 S.E.2d 830 (1990). The parties do not dispute in this case that such a
cause of action exists.
Footnote: 5 Pending the resolution of the dispute over the loss of
parental consortium claim, Federal Kemper paid the sum of $200,000
into federal district court, which represented the policy limits of
$100,000 for the bodily injuries of Mr. Karlet and $100,000 for the
bodily injuries of Mrs. Karlet. The dispute concerns the remaining
$100,000 under the per occurrence limit of liability.
Footnote: 6 An amicus brief was filed on behalf of the Trial Lawyers
Association.
Footnote: 7 This Court, in Perkins v. Doe, 177 W. Va. 84, 87 n. 5,
350 S.E.2d 711, 715 n. 5 (1986), did express its inclination to
follow certain cases which had held that consortium claimants were
entitled to extended coverage under an automobile insurance policy
beyond that to which the bodily-injured party was entitled under
the "per person" limitation.
Footnote: 8 Where the insurance policy language includes loss of
services in the definition of bodily injury, courts have held that
the loss of consortium claim is a separate bodily injury. See
Giardino v. Fierke, 513 N.E.2d 1168 (Ill. Ct. App. 1987) (language
of policy clearly placed loss of services under definition of
bodily injury and therefore wife's loss of consortium claim was not
subject to the "each person" liability limit applicable to husband,
but constituted a separate bodily injury within the meaning of the
policy); Allstate Ins. Co. v. Handegard, 688 P.2d 1387 (Or. 1984)
(although the husband's claim for loss of consortium arose out of
his wife's bodily injury, the policy defined "loss of services" as
a bodily injury and therefore the husband's claim for loss of
consortium was a separate bodily injury).
Footnote: 9 Some of the cases cited above address issues involving
uninsured or underinsured motorist coverage rather than liability
coverage. However, as pointed out by the Court of Appeals of
Arizona in Stillman, "there is no reasoned basis for
differentiating between liability and uninsured provisions when
interpreting 'one person' and 'one occurrence' issues." 785 P.2d
at 118.
Footnote: 10 In Santos v. Lumbermens Mutual Casualty Co., the Supreme
Judicial Court of Massachusetts recognized that the Commissioner of
Insurance had promulgated a mandatory endorsement, modifying the
"per person" liability language,to eliminate the effect of the
court's decision in Bilodeau. 556 N.E.2d at 988.
Footnote: 11 In the Pogorilich case, the husband was seriously
injured in an automobile accident. The issue presented by
certified question was whether the claim of his wife, who was not
injured, for loss of consortium had to be satisfied out of the
$200,000 "each person" policy limit of uninsured/underinsured
motorist coverage or whether the $600,000 "each accident" limit of
uninsured/underinsured motorist coverage applied.
Footnote: 12 The Supreme Court of Connecticut also noted a discussion
in 8A Appleman, Insurance Law and Practice § 4893, p. 60 (1981):
[I]t often happens that there are
consequential damages, as well as the damages
suffered by the injured person himself. Thus,
where a wife or child is injured, the husband
or parent may also suffer consequential
injuries by reason of liability for hospital
and doctor bills or for loss of services or
consortium. But it has been held that these
different types of injuries cannot be split
up, in order to bring the claim within the
higher policy limits; they are regarded as
essentially injuries to one person, so that
the lower policy limits applicable to injuries
sustained by any one person would govern.
524 A.2d at 644 n. 5. Footnote: 13 The loss of consortium claims raised by the Karlets arise out of bodily injuries to more than one person. One issue that was raised at oral argument but was not certified to this Court nor briefed by the parties involves the interpretation of the per occurrence limit of liability provision when two or more persons sustain bodily injuries. Although this issue has not been properly raised before us, we do recognize that other courts which have interpreted the meaning of the each occurrence limit of liability have focused their analysis, in large part, on whether the per occurrence limit of liability is expressly made subject to the per person limit of liability. Andrews v. Nationwide Mutual Ins. Co., 467 A.2d 254 (N.H. 1983); Farm Bureau Mutual Ins. Co., Inc. v. Winters, 806 P.2d 993 (Kan. 1991); Haney v. State Farm Ins. Co., 760 P.2d 950 (Wash. Ct. App. 1988). These courts, however, do not address the loss of consortium issue.
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