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Farmers Insurance Company11/1/2002
pursuing a claim under the underinsured motorist coverage of the insurer's policy.
In Fisher, the district court had reviewed K.S.A. 44-504(b), the statute that governs subrogation in workers compensation claims, and noted that the statute distinguished "loss of consortium" as being a non-economic loss and "loss of services" as being an economic loss. However, the verdict form did not distinguish between loss of services and loss of wages. An expert testified regarding the value of the loss of wages and the loss of services. The jury disregarded the testimony and returned a verdict that was significantly less than the expert's combined total. The court used the expert's figures, calculated the percentages of loss of wages and loss of services, respectively, and applied the loss of services percentage to the jury verdict. Since wages are covered by workers compensation, the court awarded the heirs the percentage of the jury verdict for "loss of services" only. The Supreme Court affirmed.
Since the workers compensation statute is similar to the exclusionary language of the Farmers' policy, in that both involve loss of consortium and loss of services, it is instructive that at least one Kansas court has construed the phrase "loss of services," in a derivative suit brought by heirs, to include a loss of wages. See Fisher, 264 Kan. at 124-26.
Recently, in Clark v. Scarpelli, 91 Ohio St. 3d 271, 744 N.E.2d 719 (2001), the Ohio Supreme Court was asked whether the same policy language as in the Farmers' policy in the present case was clear and unambiguous because it restricted wrongful death derivative claims to the per person cap. The policy in question contained the exact limiting language as in this case regarding "loss of consortium" and "injury to the relationship." The Clark court found that "the phrase 'injury to the relationship' is a clear reference to claims for wrongful death as contemplated by the [insurance] policy." 91 Ohio St. 3d at 283.
The Clark court, recognizing that wrongful death beneficiaries are statutorily authorized to recover benefits in actions brought for the "exclusive benefit" of the decedent's next of kin, concluded:
"In that regard, the wrongful death itself and the relationship between the decedent and his next of kin are inextricably intertwined. It is axiomatic that there would be no cause of action for wrongful death without both a wrongful death and the existence of at least one living statutory beneficiary of the decedent. Thus, we agree with the court of appeals that the language 'loss of consortium or injury to the relationship' encompasses all derivative claims, including claims for wrongful death."91 Ohio St. 3d at 284.
As a result of its conclusion, the Clark court held that any derivative claim, arising from the death of the petitioner's son was included in the "single each-person policy limit." 91 Ohio St.3d at 284.
This conclusion is consistent with the Colorado Court of Appeals' decision in Kinsella, 826 P.2d 433, where the plaintiff's minor son was seriously injured in a car accident. The medical bills were stipulated to exceed $200,000. The insurance policy provided uninsured motorist coverage of $100,000 per person and $300,000 per occurrence. Farmers paid $100,000 in uninsured motorist benefits and $100,000 in personal injury protection benefits. The policy contained the exact language as the policy in the present case.
The plaintiff sought an additional $100,000 in uninsured motorist benefits for medical expenses incurred on his son's behalf. Farmers denied the claim, asserting the policy limited recovery to $100,000 because of the per person restriction.
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