 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
MATTER OF ESTATE OF SYLVESTER2/19/1997
f it loses on its jurisdiction argument, [559 NW2d Page 288]
the case must be affirmed because it cannot assert a workers' compensation lien against a loss-of-consortium recovery. Both Shirley, 508 N.W.2d at 713, and Mata, 380 N.W.2d at 429, assume that this is the law, but we have not discussed the issue at length in our previous cases.
A loss-of-consortium claim asserts a child's or spouse's own cause of action for physical, psychological, and emotional pain and anguish. Huber v. Hovey, 501 N.W.2d 53, 57 (Iowa 1993). Parental consortium concerns the relationship between parent and child and the right of the child to the intangible benefits of companionship, comfort, guidance, affection, and aid of the parent in every parental relationship. Kulish v. West Side Unlimited Corp., 545 N.W.2d 860, 862 (Iowa 1996); Gail v. Clark, 410 N.W.2d 662, 668 (Iowa 1987).
"It is well established that consortium is the separate property right of each spouse; it is an independent, nonderivative claim." Huber, 501 N.W.2d at 57; Schwennen v. Abell, 430 N.W.2d 98, 101 (Iowa 1988). "The deprived spouse, not the injured person, has the right to sue for and recover for the pre-death loss of consortium." Madison v. Colby, 348 N.W.2d 202, 209 (Iowa 1984). To insure against double recovery, it is desirable that the consortium actions be joined with the underlying wrongful-death action. Id.
On the other hand, the insurer's right of indemnity under section 85.22(1) is against the worker's recovery. Sourbier v. State, 498 N.W.2d 720, 721 (Iowa 1993); Fisher v. Keller Indus., Inc., 485 N.W.2d 626, 627 (Iowa 1992). In Mata we found that a workers' compensation lien is valid as to the portion of the settlement found allocable to the injured employee. Mata, 380 N.W.2d at 429; see Bertrand v. Sioux City Grain Exch., 419 N.W.2d 402, 405 (Iowa 1988) (In Mata " e remanded in part to determine what part of the settlement was allocable to the employee's own claim and indicated that the employer would have no right to the portion of the settlement allocable to the wife and child.").
Other jurisdictions have not allowed insurers to be indemnified from a loss-of-consortium claim. See Schrock v. Shoemaker, 159 Ill.2d 533, 203 Ill.Dec. 787, 790, 640 N.E.2d 937, 940 (1994) (not allowing a workers' compensation lien to attach to proceeds of a loss-of-consortium claim because the consortium claim "is an independent action brought in the surviving spouse's name to recover for injuries she suffered in her own right as a result of the death of the decedent"); McGranahan v. McGough, 249 Kan. 328, 820 P.2d 403, 411 (1991) ("Because the employer has paid nothing to the injured worker for loss of services [consortium], any recovery as a result of a loss of services action against a negligent third party is not subject to subrogation.").
Denying indemnification from the proceeds of a loss-of-consortium claim will not subvert the intention of section 85.22, which is to prevent double recovery. There can be no double recovery because Iowa's workers' compensation scheme does not allow for the loss of consortium, and Cincinnati paid no benefits attributable to it.
AFFIRMED.
Page 1 2 3 Iowa Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|