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Burr v. Pemco Mutual Insurance Co.8/29/2005
the injuries to the spouse:
It has long been settled in this state that, absent different policy provisions, insurance indemnity for a claim for loss of consortium is restricted to the same single person limit of the policy available to indemnify for the spouse's injuries that occasioned the claim.
Morgavi, 51 Wn. App. at 376.
The Morgavi court considered whether cases holding loss of consortium claims to be independent and not derivative prevented insurers from confining recovery for loss of consortium to the limit for each injured person. The court held that the independent nature of the consortium claim for third party lawsuit purposes did not control an insurer's definition of a covered loss as including all injuries flowing from the bodily injury of one person:
Although both Reichelt and Lund held that loss of consortium was the basis for an independent claim on the part of the person suffering the loss, neither purported to alter settled insurance law. Christie, decided by the same court that decided Zoda, also dealt with the characteristics of a claim for loss of consortium. It distinguished Zoda by pointing out the difference between questions having to do with the claim, and those concerning insurance.
Id. at 377 (discussing Reichelt v. Johns Manville Corp., 107 Wn.2d 761, 733 P.2d 530 (1987), Lund v. Caple, 100 Wn.2d 739, 675 P.2d 226 (1984), Christie v. Maxwell, 40 Wn. App. 40, 696 P.2d 1256 (1985), and Zoda v. Mutual of Enumclaw Ins. Co., 38 Wn. App. 98, 684 P.2d 91 (1984)).
Morgavi thus controls the issue here. The fact that loss of consortium claims may provide the basis for an independent lawsuit does not prevent an insurer from treating them as derivative of bodily injury for purposes of setting its policy limits. Here, an average person purchasing insurance, giving a fair, reasonable, and sensible construction to Progressive's policy, would conclude that one $100,000 limit of coverage applied to all claims related to Burr's mother's death. See Thompson v. Grange Insurance Assn., 34 Wn. App. 151, 160, 660 P.2d 307 (1983).
Burr contends, however, that Progressive's treatment of loss of consortium claims violates public policy. For this argument Burr relies entirely upon the legislature's enactment of separate wrongful death and survival statutes, which she contends represent a legislative policy decision that wrongful death and survival claims are separate and distinct from each other and therefore 'must be treated as separate and distinct claims under the policy.' App. Br. at 26.
But a contract of insurance does not violate public policy unless a statute prohibits it, a judicial decision condemns it, or it is contrary to the public morals. Mendoza v. Rivera-Chavez, 140 Wn.2d 659, 663, 999 P.2d 29 (2000). No statute prohibits Washington insurers from treating loss of consortium claims as derivative for purposes of determining coverage limits, and no Washington case has held that limitations on loss of consortium claims violate public policy. Rather, the cases have allowed insurers to include such claims in the bodily injury limit for each person.
Burr cites judicial decisions from other jurisdictions disapproving insurance policies that treat loss of consortium claims as derivative. But the cases she cites were superceded by statute, or were based upon distinguishable policy language. See Cincinnati Ins. Co. v. Phillips, 52 Ohio St.3d 162, 556 N.E.2d 1150 (1990); Savoie v. Grange Mutual Ins. Co., 67 Ohio St. 3d 500, 620 N.E.2d 809 (1993); see also Ohio Rev. Code Ann. sec. 3937.44; Abellon v. Hartford Ins. Co., 167 Cal. App. 3d 21, 30-31, 212 Cal. Rptr. 852 (1985).
The
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