Spouses of individuals injured in automobile accidents will often bring a loss of consortium claim, seeking to recover for the loss of support and companionship of their spouse as a result of injuries sustained in the accident. Such a claim has been recognized by the Utah legislature. See Utah Code Ann. §30-2-11 (2008). However, the Utah Supreme Court has ruled that the term bodily injury “should not be construed broadly enough to encompass a loss of consortium claim . . ..” See Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, ¶19. As noted by the court, “‘bodily’ is commonly understood to refer to, simply, the ‘body,’” and a loss of consortium claim in no way involves a bodily injury to the spouse making the claim. Id. Such a ruling impacts the way loss of consortium claims are handled under automobile policies in several ways.

First, inasmuch as the loss of consortium does not qualify as a bodily injury, insurers are not obligated under Utah law to provide a separate liability limit for loss of consortium claims. See id. at ¶18. This is because the minimum liability limits set forth under Utah’s financial responsibility laws only apply to claims for bodily injury or property damage. See Utah Code Ann. §31A-22-304; Ewart, 2007 UT 52, ¶¶13, 17.

Because individuals asserting loss of consortium claims are not statutorily entitled to separate policy limits, they are generally only eligible to recover damages under the same liability limit applicable to their spouse, the person who sustained the bodily injury. See Ewart, 2007 UT 52, ¶18. However, a policy’s provisions may of course extend a separate limit for loss of consortium claims, even if such an extension is unintentional. Such was the case in Farmers Ins. Exch. v. Versaw, 2004 UT 73.

In Versaw, the court found that the provisions of a liability policy were ambiguous with regard to the extent of loss of consortium coverage. As such, a husband was permitted to recover for his loss of consortium claim under a limit separate from his wife. The court did find that one of the policy’s loss of consortium provisions unambiguously precluded a separate limit for loss of consortium claims. That unambiguous provision states as follows:

The bodily injury liability limit for ‘each person’ is the maximum for bodily injury sustained by one person in any occurrence. Any claim for loss of consortium or injury to the relationship arising from this injury will be included in this limit.

Id. at ¶5. The court noted that “[w]ere this all the policy had to say on the topic of loss of consortium claims, Farmers would prevail.” Id. at ¶10. However, the next paragraph of the policy went on to create an exception to the limitation on loss of consortium coverage set forth in the previous paragraph. That exception essentially established that if the financial responsibility laws of the state where the accident took place treated the loss of consortium as a separate claim, then the “per person” limit does not apply. The court then held that due to the undefined nature of Utah’s financial responsibility law, “a policyholder could reasonably conclude that Utah’s financial responsibility law treats loss of consortium as a separate claim.” Id. at ¶¶16, 19. As such, the policy was ambiguous and the husband was therefore entitled to a separate limit for his claim.

The Ewart court’s decision to distinguish loss of consortium claims from claims for bodily injury could potentially preclude coverage for loss of consortium claims altogether, depending on the language of a policy. For instance, UM/UIM policies commonly only provide coverage for bodily injury sustained by an insured, as opposed to covering damages resulting from or arising out of bodily injury. Inasmuch as the loss of consortium is not a bodily injury, but is simply a claim derivative of another’s bodily injury, there would be no coverage under those policies for a spouse’s loss of consortium claim.

Article provided by Andrew B. McDaniel