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Per Person Limitation Applies to Loss of Consortium Claims

Many attorneys are confused by the per person and per occurrence limitations.


Eggshell Eddie had been dating Sweet Mary for one year after meeting her on an online dating website.  Eggshell Eddie and Sweet Mary got married while on a weekend vacation in Las Vegas.  Eggshell and Sweet Mary drove back to San Diego where Eggshell Eddie dropped off Sweet Mary at her apartment so she could pack up her belongings and move in with Eggshell Eddie and his children, Robin and Wren.  Eggshell Eddie was driving home when he was involved in a head-on collision with Crackhead Craig.  Crackhead Craig was under the influence of crack cocaine at the time of the accident and ran through a red light and crossed into Eggshell Eddie’s lane of travel.  Crackhead was insured by Allsnake Insurance Company.

Eggshell Eddie and Sweet Mary retained attorney Seickem Bulldog.  Attorney Bulldog is the oldest son of a Pakistani mother and Colonel Nathan “Doberman” Bulldog of Navy Seal Team 6 who met while he was performing covert operations in Pakistan.  Attorney Bulldog demanded Allsnake’s insurance policy information and a copy of its policy.  After obtaining the policy, he confirmed that the policy had policy limits of $250,000 per person and $500,000 per occurrence.

Due to the serious nature of Eggshell Eddie’s injuries, Attorney Bulldog made a joint demand for policy limits of $250,000 for Eggshell Eddie for his bodily injuries and $250,000 for Sweet Mary for loss of consortium. 

Allsnake assigned the claim to Adjuster Sean McScrewem.  Adjuster McScrewem rejected the policy limits demand, but offered $250,000 for both Eggshell Eddie’s bodily injuries and Sweet Mary’s loss of consortium claim.  Adjuster McScrewem argued that Allsnake’s policy limited any loss of consortium claim to the per person limitation applicable to the bodily injury claim of Eggshell Eddie.  Allsnake’s policy set forth the limits of liability for bodily injury as follows:

1. The bodily injury liability limits for each person is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to one person per occurrence.

2. Subject to the bodily injury liability for each person, the bodily injury liability limit for each occurrence is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to two or more persons in one occurrence.

[¶] ... [¶]

We will pay no more than these maximums regardless of the number of vehicles described in the declaration, Insured persons, claims, claimants, policies, or vehicles involved in the occurrence.

Adjuster McScrewem contended that the policy language in Allsnake’s policy was sufficient to aggregate Sweet Mary’s damages for loss of consortium with the damages for bodily injury to Eggshell Eddie.  Adjuster McScrewem relied upon the language of the policy, which stated, “Damages for bodily injury, including damages for care and loss of services.”

Attorney Bulldog argued that each of his clients is a separate claim entitled to $250,000 and focused on the language that limited the damages for bodily injury sustained by one person as “the maximum we will pay as damages . . . for one person.”  He contended that the loss of consortium claim is a separate and independent claim and not a derivative claim and relied upon Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.App.3d 382.  Attorney Bulldog argued that the policy did not clearly specify that loss of consortium damages are aggregated with those of the injured spouse and that each claim was subject to separate per person limits of $250,000.  Adjuster McScrewem disagreed and relied upon numerous cases with similar language, including United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957 (Warner) and Mercury Ins. Co. v. Ayala (2004) 116 Cal.App.4th 1198 (Ayala) which had held the loss of consortium claim was subject to the same per person limits as the injured spouse.  Adjuster McScrewem contended that under the language of Allsnake’s policy, Sweet Mary’s claim for loss of consortium was subject to the same per person limit as the injured spouse’s damages (Eggshell Eddie) so that the maximum available under Allsnake’s policy was $250,000. 

Attorney Bulldog responded by citing to the case of Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21, which had found that the loss of consortium claim was a separate claim and was not part of the per person limitation under the policy at issue in that case.

Allsnake refused to budge off of its position.  Attorney Bulldog seeks your assistance in analyzing the coverage issues.

Analysis of Loss of Consortium Claims Being Subject to Per Person Limitation

There have been many cases that have held that a loss of consortium claim is subject to the per person limitation limits of the policy.  The cases of Warner and Ayala contain language that the per person limit applied to damages “including damages for care and loss of services, arising out of bodily injury sustained by one person.”  (See Warner at p. 961.)  In Ayala, the policy provision stated that the “‘bodily injury sustained by any one person’ as used herein, shall be deemed to include injury and damages for care, loss of consortium and injury for any interpersonal relationship sustained by others as a consequence of such bodily injury.”  (Ayala at p. 1201.)

There have been other cases that have reached the same conclusion to apply the per person limitation to loss of consortium claims.  (See Hauser v. State Farm Mut. Auto Ins. Co. (1988) 205 Cal.App.3d 844; Mid-Century Ins. Co. v. Pash (1989) 211 Cal.App.3d 431.)

The Allsnake policy states that the $250,000 limit applies to any damages “for care and loss of services” and those damages are included in any damages for bodily injury.  That language was found sufficient by the Warner court to include claims of loss of consortium. 

While the Abellon court majority found that the per person limitation of bodily injury did not apply to the loss of consortium claim, the policy language in Abellon was different from Allsnake’s policy.  In Abellon, the policy lacked any language defining bodily injury to any one person to include loss of consortium sustained by another or any similar language.  The Abellon majority recognized that an insurance carrier may limit its liability in accidents where loss of consortium damages are sought by expressly providing that such damages are subject to the per person limitation.  The majority held that the policy language in Abellon did not so limit the loss of consortium claim to the per person limitation for bodily injuries.

The fact that Eggshell Eddie and Sweet Mary are two people does not permit them to avoid the per person limitation.  Such an interpretation would be contrary to the express language of Allsnake’s policy that the per person limitation applies to damages for bodily injury to one person “regardless of the number of . . . claims, claimants . . . involved in the occurrence.”

In summary, you advise Attorney Bulldog he likely lose any declaratory relief action against Allsnake Insurance Company and that the language of Allsnake’s policy will likely be interpreted by the court to make Sweet Mary’s loss of consortium claim subject to the per person limitation applicable to Eggshell Eddie’s bodily injury claim.

Conclusion

Many attorneys are confused by the per person and per occurrence limitations.  Likewise, many attorneys have not faced the issue of whether a loss of consortium claim is subject to the per person limitation of the policy applicable to the bodily injury of the injured spouse.  If you are ever facing such an issue, an excellent case to read is Jones v. IDS Property Casualty Ins. Co. 218 W.L. 4579767.  That case provides an excellent analysis of the cases that have held that loss of consortium claims are subject to the per person limitation and also distinguishes those cases that have held that the loss of consortium claim was not subject to the per person limitation.

If you are facing a per person limitation that would apply to your loss of consortium claim, investigate to see if you can develop a claim for negligent infliction of emotional distress based upon the Dillon v. Legg (1968) 68 Cal.2d 728 theoryof one family member witnessing the death or injury to another family member.  The per person limitation would not apply to the negligent infliction of emotional distress because that type of claim is not for the loss of services, but is for bodily injuries suffered by the family member that witnessed the injury or death to another family member.


This article was also published in the Trial Bar News. The APA citation for the Trial Bar News article is as follows:

Copley, R. K. (2018). Per person limitation applies to loss of consortium claims. Trial Bar News, 41(10), 7-8, 26.

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