JOHN P . DALEY ; AND ALLSTATE INSURANCE COMPANY V. JAMES REED, ADMINISTRATOR OF THE ESTATE OF ROBIN REED, ET AL . and ALLSTATE INSURANCE COMPANY V. JAMES REED, ADMINISTRATOR OF THE ESTATE OF ROBIN REED, ET AL .
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RENDERED : OCTOBER 17, 2002
TO BE PUBLISHED
*uvreme Toud of Kentur
JOHN P . DALEY; AND
ALLSTATE INSURANCE COMPANY
V.
ON REVIEW FROM COURT OF APPEALS
1998-CA-1810
BOONE CIRCUIT COURT NO . 95-CI-1
JAMES REED, ADMINISTRATOR OF
THE ESTATE OF ROBIN REED, ET AL.
AND
APPELLANTS
APPELLEE
2000-SC-0744-DG
ALLSTATE INSURANCE COMPANY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1998-CA-1810
BOONE CIRCUIT COURT NO . 97-CI-487
JAMES REED, ADMINISTRATOR OF
THE ESTATE OF ROBIN REED, ET AL.
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
In Moore v . State Farm Mutual Ins . Co. , Ky., 710 S .W.2d 225 (1986), we held
that a claim for loss of spousal consortium is payable under the "each person" limit, not
the "each accident" limit, of a policy of automobile liability insurance . The issue raised
by this appeal is whether that holding applies as well to a claim for loss of parental
consortium . We conclude that it does .
Robin Reed was killed when the vehicle she was operating was struck from the
rear by a vehicle owned and operated by Appellant John P. Daley. Reed was alone in
the vehicle at the time of the accident . Her husband, Appellee James Reed, as
administrator of her estate, filed a wrongful death action against Daley in the Boone
Circuit Court. KRS 411 .130. Upon rendition of this Court's opinion in Giuliani v . Guiler,
Ky ., 951 S .W.2d 318 (1997), Reed filed an amended complaint, this time as next friend
of the Reeds' four minor children, seeking damages for loss of parental consortium .
Daley's vehicle was insured by a policy of liability insurance issued by Appellant Allstate
Insurance Company. The applicable provisions of that policy are as follows:
Limits of Liability
The sum of the coverage limits shown on the declarations page for this
coverage for:
1.
"each person" is the maximum we will pay for damages arising out
of bodily injury to one person in any one motor vehicle accident,
including damages sustained by anyone else as a result of that
bodice injury .
2.
"each accident" is the maximum we will pay for damages arising
out of bodily injury to two or more persons in any one motor vehicle
accident . This limit is subject to the limit for "each person ."
(Emphasis added, original emphasis deleted .)
The declarations page of the policy states the coverage limits as $100,000 for
each person and $300,000 for each accident .' The policy defines "bodily injury" as
' Actually, the declarations page states "300,000 each occurrence ." No party to
this action suggests that any significance should be given to the variance in the
language of the declarations page ("occurrence") and that of the policy ("accident"),
presumably because if "occurrence" does not mean "accident," the $300,000 limit
would not apply to any coverage described in the policy.
"bodily injury, sickness, disease, or death ." James Reed, as administrator of the estate,
settled the wrongful death action for $100,000, exhausting the coverage limit for "each
person." The children assert that their claims for loss of parental consortium are
payable from the additional $200,000 coverage available for "each accident ." Relying
on Moore , supra , the Boone Circuit Court held that the children's claims fell within the
"each person" coverage of Allstate's policy . The Court of Appeals reversed . We now
reverse the Court of Appeals and reinstate the Order of the Boone Circuit Court .
We note at the outset that virtually every jurisdiction that has addressed this
issue has concluded that loss of consortium is not a separate "bodily injury" but is
derivative of the injured party's bodily injury claim; and, thus, a claim for loss of parental
consortium falls within the "each person" limit of the policy's coverage . Westfield Ins .
Co. v. DeSimone , 247 Cal .Rptr. 291, 295 (Cal. Ct. App . 1988) ; Conner v. Stanford , 692
So.2d 1146, 1148 (La . Ct. App. 1997) ; Auto Club Ins. Ass'n v . Lanyon, 369 N .W.2d
269, 271 (Mich . Ct. App . 1985) ; State Farm Mut. Auto Ins . Co . v. Chambers, 860
S.W.2d 19, 22 (Mo . Ct. App . 1993) ; Smock v. Hall , 725 N .E.2d 673, 675 (Ohio Ct . App .
1999); Miller v . Public Employees Mut. Ins . Co . , 795 P .2d 703, 705-06 (Wash . Ct. App.
1990); Federal Kemper Ins. Co . v. Karlet, 428 S .E.2d 60, 64 (W.Va . 1993) ; Richie v .
American Family Mut. Ins . Co . , 409 N .W.2d 146, 148 (Wis . Ct. App . 1987) ; cf. Leis v.
Iowa Mut . Ins . Co . , 402 N .W.2d 758, 765 (Iowa 1987) (parent's claim for loss of child's
consortium falls within the "each person" limit) . The Court of Appeals' reliance on
Giardino v. Fierke , 513 N .E .2d 1168 (III . App . Ct. 1987) and Bilodeau v. Lumbermens
Mutual Cas . Co . , 467 N .E.2d 137 (Mass. 1984) was misplaced . The insurance policy in
Giardino defined "bodily injury" as "bodily injury, sickness, disease, death, or loss of
services which result from it," 513 N .E .2d at 1172 (emphasis added), whereas Allstate's
-3-
policy defines "bodily injury" only as "bodily injury, sickness, disease, or death ." And
Bilodeau was abrogated within a year of its rendition when the Massachusetts
Commissioner of Insurance changed the language of the state's mandatory insurance
endorsement for the specific purpose of counteracting the decision in Bilodeau . Liberty
Mut. Ins . Co. v . Comm'r of Ins . , 481 N .E .2d 1373, 1375 (Mass. 1985); see McNeill v .
Metropolitan Prop . & Liab . Ins . Co. , 650 N.E.2d 793, 796 (Mass . 1995) (noting that new
language superseded Bilodeau interpretation) .
The Reed children rely primarily on the statement in Giuliani v. Guiler, supra, that
a loss of consortium claim "is independent and separate from a wrongful death action
and shall not be treated as a single claim ." 951 S.W.2d at 322 . Giuliani, however, did
not intend by that language to change the law applicable to insurance coverage for loss
of consortium claims or to make new law applicable only to claims for loss of parental
consortium . In fact, Giuliani specifically cited for its "separate and independent"
proposition to Department of Education v . Blevins, Ky., 707 S .W.2d 782, 785 (1986),
which used identical language in addressing a claim by parents for the loss of a child's
consortium . KRS 411 .135 . Giuliani and Blevins were both addressing an argument
that a loss of consortium claim is essentially subsumed in a wrongful death action .
What Giuliani and Blevins both held in that respect was that a claim for loss of
consortium in which a survivor seeks damages for the loss of the decedent's
companionship, services, etc., is a separate and independent cause of action from a
wrongful death claim in which the decedent's estate seeks damages for the loss of the
decedent's power to labor and earn money .
Of course, the existence of a cause of action for damages does not mean that
those damages are ipso facto recoverable from a particular policy of insurance. See
Kentucky Central Ins . Co . v . Schneider, Ky., 15 S .W.3d 373, 375 (2000) . Giuliani and
Blevins were construing statutory and common law rights of action, not insurance
policies. Of more significance to the issue raised in this case is the additional
observation in Blevins that "both the personal injury and loss of consortium claim derive
from the same in-jury." 707 S .W.2d at 785 (emphasis added) .
The Reed children attempt to distinguish Moore v . State Farm , supra , because
the insurance policy in Moore defined "damages" as including "damages for care and
loss of services" whereas Allstate's policy contains no definition of the term "damages ."
This argument is a distinction without a difference . DeSimone , supra , 247 Cal .Rptr. at
293-94 . If the word "damages" in Allstate's policy does not include "damages for care
and loss of services," there is no coverage at all for damages for loss of consortium .
Regardless, Moore did not rest its holding on the definition of "damages" but on the
definition of "bodily injury ." 710 S .W .2d at 226.
Under Daley's Allstate policy, damages "arising out of bodily injury to one person
in any one motor vehicle accident, including damages sustained by anyone else as a
result of that bodily injury," fall within the coverage limit for "each person ." Damages for
wrongful death and damages for loss of consortium "derive from the same injury ."
Blevins , supra, at 785 . Thus, we conclude that the loss of consortium claims of the
Reed children against Daley are derivative of the wrongful death claim of their mother's
estate and fall within the "each person" limit of Daley's Allstate policy.
Accordingly, we reverse the Court of Appeals and remand this case to the Boone
Circuit Court for a final resolution of the Reed children's claims against Daley .
All concur.
COUNSEL FOR APPELLANT JOHN P. DALEY (2000-SC-0703-DG) :
Susanne M . Cetrulo
Cetrulo & Mowery, P.S.C .
203 Toebben Executive Center
541 Buttermilk Pike
Crescent Springs, KY 41017
COUNSEL FOR APPELLANT ALLSTATE INSURANCE COMPANY
(2000-SC-0703-DG) :
Thomas R. Yocum
Benjamin Yocum & Heather
1500 Central Trust Tower
5 W. Fourth Street
Cincinnati, OH 45202
COUNSEL FOR APPELLANT ALLSTATE INSURANCE COMPANY
(2000-SC-0744-DG) :
Susanne M. Cetrulo
Cetrulo & Mowery, P .S.C .
203 Toebben Executive Center
541 Buttermilk Pike
Crescent Springs, KY 41017
Thomas R . Yocum
Benjamin Yocum & Heather
1500 Central Trust Tower
5 W. Fourth Street
Cincinnati, OH 45202
COUNSEL FOR APPELLEE JAMES REED, ADMINISTRATOR OF THE ESTATE OF
ROBIN REED, ET AL. (2000-SC-0703-DG) :
Eric C. Deters
Ashley Scott McDavid
Eric C. Deters & Associates
300 Buttermilk Pike, Suite 334
Ft. Mitchell, KY 41017
Stuart Paul Brown
Bogucki, Knoebel & Vice
218 Stanley Reed Court
P .O. Box 277
Maysville, KY 41056
COUNSEL FOR APPELLEE JAMES REED, ADMINISTRATOR OF THE ESTATE OF
ROBIN REED, ET AL. (2000-SC-0744-DG) :
Eric C . Deters
Eric C . Deters & Associates
300 Buttermilk Pike, Suite 334
Ft. Mitchell, KY 41017
COUNSEL FOR AMICUS CURIAE NATIONAL ASSOCIATION OF INDEPENDENT
INSURERS (2000-SC-0703-DG AND 2000-SC-0744-DG) :
A. Campbell Ewen
Angela D . Lucchese
Ewen Kinney & Rosing
1090 Starks Building
Louisville, KY 40202
COUNSEL FOR AMICI CURIAE THE ALLIANCE OF AMERICAN INSURERS AND
THE INSURANCE INSTITUTE OF KENTUCKY (2000-SC-0703-DG AND
2000-SC-0744-DG) :
Douglas L. Hoots
Landrum & Shouse, LLP
106 West Vine Street, Suite 800
Lexington, KY 40507
COUNSEL FOR AMICI CURIAE PROGRESSIVE MAX INSURANCE COMPANY AND
GRANGE MUTUAL INSURANCE COMPANY (2000-SC-0703-DG AND
2000-SC-0744-DG) :
D . Craig Dance
Greenebaum Doll & McDonald, PLLC
Suite 1400, Vine Center Tower
P .O . Box 1808
Lexington, KY 40588
Donald L. Miller, II
Frost Brown Todd, LLC
400 West Market St. - 32nd Floor
Louisville, KY 40202
Robert L . Steinmetz
Laura M . Haara
Brown, Todd & Heyburn, PLLC
3200 Providian Center
400 West Market Street
Louisville, KY 40202
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