June 17, 2019

Colorado Court of Appeals: Husband’s Loss of Consortium and Negligent Infliction of Emotional Distress Claims Are Not Barred by Injured Wife’s Settlement

The Colorado Court of Appeals issued its opinion in Draper v. DeFrenchi-Gordineer on September 1, 2011.

Personal Injury—Loss of Consortium—Derivative Claim—Settlement Release—Negligent Infliction of Emotional Distress—Statute of Limitations—Negligent Entrustment.

Plaintiff Robert Draper (husband) appealed the summary judgment dismissing the tort claims he filed on behalf of his wife, Jean Draper (wife), who was seriously injured in a car accident. The judgment was reversed and the case was remanded.

After wife was severely injured in a car accident, husband and wife signed a settlement agreement releasing wife’s claims against the parents who owned the vehicle that struck wife; the son who borrowed the car that struck wife; and the friend who, without a license, drove the vehicle that struck wife. Husband subsequently filed suit naming all four as defendants, alleging claims of loss of consortium, negligent infliction of emotional distress, and negligent entrustment. The trial court granted summary judgment in favor of defendants on all of husband’s claims.

Husband argued that the trial court erred in finding that his claim for loss of consortium was derivative of wife’s personal injury claim and thus was barred. A claim for loss of consortium is a derivative claim, but it also is a separate claim that creates a distinct cause of action. Further, an agreement settling an injured person’s personal injury claims does not necessarily bar the spouse’s loss of consortium claim. Here, the settlement agreement resolving wife’s claims against defendants, signed by both wife and husband, did not expressly release defendants from liability for any claims in husband’s lawsuit. Additionally, the settlement agreement awarded wife compensation for her injuries. Because husband’s separate derivative claim for loss of consortium depends on wife’s right to recover, and because wife didrecover, husband’s loss of consortium claim was not barred by the settlement agreement.

Husband also contended that the trial court erred when it granted summary judgment to defendants on his claim for negligent infliction of emotional distress on the ground that it was derivative of wife’s previously settled personal injury claims. The claim of negligent infliction of emotional distress is an independent claim, not a derivative claim. Thus, an agreement settling the claims of an injured person does not necessarily bar the spouse’s claim for negligent infliction of emotional distress. Accordingly, this was not a proper ground for summary judgment.

Husband contended that the trial court erred by ruling that his claim for bodily injury was barred by the statute of limitations. Husband’s complaint was filed one day less than three years after the collision. Fourteen months later, the trial court allowed husband to amend his complaint to add the claim for bodily injury. Husband’s alleged bodily injury arose from the same conduct set forth in the original complaint. The parties were the same, and the same negligence was pleaded as the proximate cause of husband’s injuries. Therefore, the amendment related back to the date of the original pleading. Thus, the trial court erred by dismissing that claim as time-barred.

Husband further argued that the trial court erred by granting summary judgment in favor of defendants as to his claim of negligent entrustment. Because there was a disputed question of material fact concerning whether the parents and the son knew, or should have known, that the friend was an unsafe driver, the trial court’s order granting summary judgment on this claim was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

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