DeMarinis v. United Services Automobile Ass'n Casualty Insurance

687 A.2d 1305, 44 Conn. App. 172, 1997 Conn. App. LEXIS 32
CourtConnecticut Appellate Court
DecidedJanuary 28, 1997
Docket15818
StatusPublished
Cited by6 cases

This text of 687 A.2d 1305 (DeMarinis v. United Services Automobile Ass'n Casualty Insurance) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeMarinis v. United Services Automobile Ass'n Casualty Insurance, 687 A.2d 1305, 44 Conn. App. 172, 1997 Conn. App. LEXIS 32 (Colo. Ct. App. 1997).

Opinion

STOUGHTON, J.

This is an appeal from a summary judgment rendered in favor of the defendant. At issue in this appeal is whether, in light of General Statutes §§ 52-555a through 52-555d,1 a recovery for loss of consortium remains dependent upon and derivative of bodily injury to the spouse. We affirm the judgment of the trial court.

The essential facts giving rise to this lawsuit are not in dispute. On May 26, 1992, Anthony R. DeMarinis, Jr., was operating his motorcycle when it collided with a motor vehicle owned by Donald F. Scarfo and operated by Natalie Scarfo. DeMarinis suffered injuries in the [174]*174collision that resulted in his death on May 28,1992. Prior to that date, the defendant United Services Automobile Association Casualty Insurance Company, Inc. (USAA), had issued an automobile liability policy to DeMarinis, which was in effect at the time of the collision, covering three vehicles including the motorcycle. The Scarfo vehicle was covered by an automobile liability insurance policy issued by the Royal Insurance Company under which the sum of the limits of bodily injury liability coverage was $300,000.

The plaintiff, June P. DeMarinis, is the surviving spouse of DeMarinis and was appointed administratrix of his estate. The plaintiff claimed damages from the Scarfos as administratrix for the wrongful death of DeMarinis and on her own behalf for loss of consortium. On or about December 10,1992, the plaintiff settled the claims against the Scarfos with the Royal Insurance Company, having requested and received permission from the defendant to do so, for the entire proceeds of the policy. Two hundred thousand dollars was paid on account of the wrongful death claim, and $100,000 was paid on the loss of consortium claim. These payments exhausted the limits of liability under all bodily injury liability insurance policies applicable at the time of the accident.

The plaintiffs insurance policy with the defendant USAA provides uninsured motorist coverage. Under the terms of that coverage, the defendant agreed to “pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by a covered person; and 2. Caused by an accident.” That coverage is provided “only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.”

[175]*175The policy defines an uninsured motor vehicle as one “[fjor which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the sum of the limits of liability for Uninsured Motorists Coverage applicable to each vehicle for this coverage under this policy.” The limit of liability for uninsured motorist coverage under the terms of the policy “for all damages, including . . . direct, derivative or consequential damages arising out of [bodily injury] sustained by any one person in any one accident” is “[t]he limit of liability for [uninsured motorist] Coverage shown in the Declarations for ‘each person’ multiplied by the number of premiums shown . . . .” The “limit of liability for all damages for [bodily injury] resulting from any one accident” is “the limit of liability for [uninsured motorist] Coverage shown in the Declarations for ‘each accident’ multiplied by the number of premiums shown . . . .”

The policy declarations show limits of liability for uninsured motorist coverage for bodily injury to be $100,000 for each person and $300,000 for each accident. Because there were three premiums, the defendant’s limit of liability for uninsured motorist coverage was $300,000 for all damages arising out of bodily injury sustained by one person and $900,000 for bodily injury resulting from any one accident.

The plaintiffs claim on appeal that the trial court improperly (1) held that a postmortem loss of consortium claim under § 52-555a is dependent and derivative of the claim of the deceased spouse and (2) failed to hold that the defendant’s policy would provide coverage “even under the standard set forth in Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 524 A.2d 641 (1987).” Because those issues are overlapping, we address them together.

[176]*176The cause of action for loss of consortium has evolved over time in Connecticut. Because of the legal status of married women in earlier times, the common law cause of action for loss of consortium generally was available only to husbands. Hopson v. St. Mary’s Hospital, 176 Conn. 485, 487-88, 408 A.2d 260 (1979). After the legislature had altered the status of married women, so that a married woman could recover damages for personal injury in her own right, our Supreme Court denied a right of recovery for loss of consortium to either spouse. Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911). Marri was overruled in Hopson v. St. Mary’s Hospital, supra, 487. Our Supreme Court in Hopson held that either spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by negligence of a third person.

Subsequently, our Supreme Court in Ladd v. Douglas Trucking Co., 203 Conn. 187, 191, 523 A.2d 1301 (1987), determined that “a spouse may recover for antemortem loss of consortium in her individual capacity where her common law claim has been joined with the wrongful death action brought by the decedent’s estate pursuant to § 52-555.” The court further found, however, that a spouse may not recover for postmortem loss of consortium under Connecticut statutory or common law. Id., 191.

Shortly thereafter, in Izzo v. Colonial Penn Ins. Co., supra, 203 Conn. 305, the Supreme Court considered whether the spouse of a person injured in an automobile accident was entitled to a separate “per person” recovery for the injury of loss of consortium within the “per occurrence” limit of an automobile liability insurance policy. The policy at issue in Izzo provided liability limits applicable to bodily injury coverage in the amount of $100,000 per person and $300,000 per occurrence. Id., 308. The claim of the injured person in Izzo was settled for $100,000, and the spouse, who was not [177]*177involved in the accident, sought to recover damages for her claim of loss of consortium under the higher per occurrence limit. Id. The Supreme Court held that the per person limit applied to all damages sustained by all persons as a result of bodily injury to one person, rejecting an interpretation of the claim for loss of consortium as a claim for bodily injury to a second person. Id., 313. The court in Izzo noted that decisions in which other jurisdictions have treated loss of consortium as separate from the claim for direct physical injury for purposes of determining the limit of liability had been based on language of the relevant policies referring to the number of personal injuries arising out of one accident as opposed to the number of bodily injuries. Id.

On October 1, 1989, § 52-555a was enacted.

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Cite This Page — Counsel Stack

Bluebook (online)
687 A.2d 1305, 44 Conn. App. 172, 1997 Conn. App. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarinis-v-united-services-automobile-assn-casualty-insurance-connappct-1997.