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Burr v. Pemco Mutual Insurance Co.8/29/2005
Ruth Burr's mother, Sheila Greytak, was run down and killed as she attempted to cross a street near her house. She was in a crosswalk, and the driver admitted liability. The driver's insurer paid its policy limits of $100,000 to the estate. Burr contends her loss of consortium claim triggers a separate $100,000 limit. We disagree and affirm the trial court's dismissal.
FACTS
After Sheila Greytak was killed by a car while she was in a crosswalk, the driver, Elise Hofstad, admitted liability. Hofstad was covered under an insurance policy issued by Progressive Northern Insurance Company. The limits of the policy were $100,000 for bodily injury for each person, and $300,000 for each accident.
The policy defined 'bodily injury' as 'bodily harm, sickness, or disease, including death that results from bodily harm, sickness, or disease.' Clerk's Papers at 65. The limits of liability section stated that 'the amount shown for 'each person' is the most we will pay for all damages due to a bodily injury to one (1) person.' Clerk's Papers at 68. The policy defined the bodily injury limit for 'each person' to include the aggregate of claims made for such bodily injury and claims derived from such bodily injury, including, but not limited to, loss of society, loss of companionship, loss of services, loss of consortium, and wrongful death.
Id. (emphasis added).
Progressive paid its $100,000 limits to Greytak's estate. Thereafter, Burr filed a complaint against Progressive seeking declaratory relief and damages. She maintained that her claims for loss of society, companionship, services, and consortium were separate from the claims of the estate, triggering a separate $100,000 'each person' limit.
Burr moved for summary judgment, and Progressive moved for judgment on the pleadings under CR 12(b)(6). The trial court granted Progressive's motion for judgment on the pleadings and denied Burr's motion for summary judgment. This appeal followed.
DISCUSSION
Statutes in Washington create separate causes of action for wrongful death and survival claims. See RCW 4.20.010, .020 (wrongful death); RCW 4.20.046, .060 (survival); see also Otani v. Broudy, 151 Wn.2d 750, 755, 92 P.3d 192 (2004) ('wrongful death statutes govern post-death damages of the deceased and the survival statutes govern predeath damages'). Loss of consortium claims are separate and not derivative. Green v. American Pharmaceutical Co., 136 Wn.2d 87, 101, 960 P.2d 912 (1998). Burr therefore contends that Progressive may not define loss of consortium claims as 'derived from such bodily injury,' but must recognize her claim as a separate injury with its own $100,000 limit.
Progressive agrees that wrongful death and survival claims are independent legal claims, but asserts that, however such claims are classified for other purposes, an insurance policy may treat all claims arising out of the bodily injury of one person as falling within a single coverage limit. Grange Insurance Association v. Morgavi, 51 Wn. App. 375, 753 P.2d 999 (1988) is directly on point. William Morgavi had a claim for loss of consortium because of injury to his wife. A Grange insurance policy was available to indemnify the tortfeasor. The policy provided bodily injury coverage of up to $50,000 per person and $100,000 per occurrence. Grange offered $50,000 to the Morgavis for all of their damages and sought a declaratory judgment that it had no further exposure. The trial court ruled against Grange, but the appeals court reversed, holding that, where an insurance policy so provides, recovery for a loss of consortium claim may be limited to the single person limit available for
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