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The Morrison Law Journal
September 2018
Volume XIII, Edition 9

A Victory For Insurers: Court Of Appeal Rules That Spouse's Loss Of Consortium Claim
Is Included In The Same "Per Person Limit" As Her Husband's Claim For Bodily Injury

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

As many are aware, automobile insurance policies as well as general liability insurance policies often contain a policy limit for each "person" together with a larger aggregate limit for each occurrence. A question that has arisen is whether a spouse who did not suffer any bodily injury in the occurrence but asserts a claim for loss of consortium qualifies as a separate "person" for purposes of the per "person" limit in the policy. This question was addressed and answered in the matter Mark Alan Jones v. IDS Property Casualty Insurance Company (2018) Westlaw 4579767 ("Jones case").

The Jones case concerned a two vehicle traffic accident in which Mark Alan Jones was seriously injured. Jones sued the operators and/or owners of the other vehicle, Janet Buhler and Richard Buhler. By stipulation, a judgment was entered against the Buhlers whereby Mark Jones was awarded $1,350,000 and his wife, Melanie Jones, was awarded $150,000 for loss of consortium. The Buhlers had an automobile insurance policy with IDS Property Casualty Insurance Company ("IDS") that provided coverage of $250,000 for bodily injury for each "person" and $500,000 for each "occurrence." The policy set forth the limits of liability for bodily injury as follows:

1. The bodily injury liability limits for each person is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to one person per occurrence.

2. Subject to the bodily injury liability for each person, the bodily injury liability limit for each occurrence is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to two or more persons in one occurrence

Counsel for Mr. and Mrs. Jones (as well as the Buhlers) took the position that Mark Jones and Melanie Jones each had separate bodily injury claims, such that the sum of $500,000, not $250,000, should be paid.

IDS paid Mr. and Mrs. Jones $250,000 but refused to pay any more. Mr. and Mrs. Joneses brought suit against IDS and the Buhlers for declaratory relief asserting that they were entitled to $500,000 based on their being two "persons" who suffered bodily injury. IDS moved for summary judgment arguing that the single person limit applied to both Mr. Jones' bodily injury claims as well as Mrs. Jones' loss of consortium claim. The trial


court denied the motion. The Buhlers later filed for bankruptcy. The Buhlers and their bankruptcy trustee then filed a Cross-Complaint against IDS for breach of the implied covenant of good faith and fair dealing and breach of contract. At trial, the parties agreed that the Court could first rule on Mr. and Mrs. Jones' declaratory relief cause of action, and certify that ruling for appeal pursuant to Code of Civil Procedure § 166.1. The Trial Court then ruled in favor of IDS and certified the order for appeal. A Petition for Writ of Mandate was filed but was denied by the Court of Appeal. Thereafter, the Trial Court entered judgment in favor of IDS after ruling that Mr. Jones' bodily injury claims and Mrs. Jones' loss of consortium claim should be "aggregated" into one claim and the $250,000 limit per person applied to the claims of both Mr. Jones and Mr. Jones.

On appeal, Mr. and Mrs. Jones contended that the Trial Court erred in ruling that the per person limit of the applicable policy applied to both Mr. Jones' bodily injury claim and Mrs. Jones loss of consortium claim. In its opinion, the Court of Appeal acknowledged the decision in Abellon v. Hartford Insurance Company (1985) 167 Cal.App.3rd 21 where a divided panel of the 4th Appellate District, Division One, concluded that a loss of consortium claim was a compensable “bodily injury” and that a single “per person” coverage limitation of $250,000 did not encompass damages arising out of both injuries sustained by an injured husband in a vehicular accident and a loss of consortium suffered by his spouse. However, the Court in the Jones case ruled that the per person limit language at issue - "the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to one person per occurrence" - was sufficient so that there would be "aggregation" of the spouse's damages for loss of consortium together with damages for bodily injury suffered by the injured spouse.

The Jones case is important in that it affirms that an insurer has the ability to aggregate loss of consortium claims with an injured spouse and that the inclusion of language concerning "care and loss of services" is sufficient to bar a separate per "person" claim based on loss of consortium.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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