{ "id": 5658128, "name": "JULIA BROWN, Plaintiff-Appellant, v. PATRICK D. METZGER, DefendantAppellee", "name_abbreviation": "Brown v. Metzger", "decision_date": "1983-10-18", "docket_number": "No. 82\u20141011", "first_page": "855", "last_page": "861", "citations": [ { "type": "official", "cite": "118 Ill. App. 3d 855" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "292 N.E.2d 905", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. 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PATRICK D. METZGER, DefendantAppellee." ], "opinions": [ { "text": "JUSTICE REINHARD\ndelivered the opinion of the court:\nPlaintiff, Julia Brown, appeals from the dismissal of her complaint against defendant, Patrick D. Metzger, pursuant to defendant\u2019s motion under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48), recodified as section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 619). Plaintiff\u2019s complaint sought recovery for loss of consortium, and for family expenses, including her husband\u2019s medical expenses, for which plaintiff claims she became liable under section 15 of \u201cAn Act to revise the law in relation to husband and wife\u201d (Ill. Rev. Stat. 1981, ch. 40, par. 1015), commonly referred to as the Family Expense Statute. Defendant\u2019s motion to dismiss was based on his claim that he had been released from liability on plaintiff\u2019s claim by a release executed pursuant to a settlement agreement entered between plaintiff\u2019s husband, Eldridge, and defendant in a separate suit brought by Eldridge to recover for his personal injuries.\nThe only issue plaintiff raises on appeal is whether her husband\u2019s settlement bars her cause of action for loss of consortium.\nPlaintiff alleged in her complaint that her husband sustained injuries when the car in which he was riding collided with a car driven by defendant. Count I of the complaint alleged negligence and count II alleged wilful and wanton conduct on the part of defendant. Plaintiff claimed that the injuries her husband sustained as a result of defendant\u2019s conduct caused her to be \u201cgreatly damaged in the loss of her husband\u2019s society, conjugal fellowship, companionship, cooperation and aid in their conjugal relationship.\u201d Plaintiff further alleged that the injuries caused her husband to incur medical expenses and to lose time from work which made him unable to properly support plaintiff and their children. She alleged that as a result of his injuries her husband had \u201clost great sums of money which would otherwise have gone to the support of the plaintiff\u201d and their minor children; that plaintiff was liable for these \u201cmedical expenses and bills of the family, including support of the children\u201d under the Family Expense Statute (111. Rev. Stat. 1981, ch. 40, par. 1015); and that she suffered injury to her property because of her liability for these medical bills and for child support.\nDuring the pendency of this lawsuit plaintiff\u2019s husband settled his personal injury suit for $47,500 and released his claim against defendant. Also, while this suit was pending, plaintiff and her husband had their marriage dissolved. As a part of the property settlement in the dissolution proceeding the judgment of dissolution required plaintiff to pay her husband 25% of any recovery she may receive from this suit. It also required her husband to pay her 25% of his recovery in his personal injury suit against defendant.\nWhen one spouse (the impaired spouse) is injured by the negligence of another, the other spouse (the deprived spouse) may recover from the tortfeasor for the loss the deprived spouse suffered by virtue of the impaired spouse\u2019s injury. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 430, 170 N.E.2d 881.) This loss, which is generally labeled a loss of consortium, includes \u201cmaterial services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity.\u201d 20 Ill. 2d 406, 427, 170 N.E.2d 881; see also Elliott v. Willis (1982), 92 Ill. 2d 530, 535, 442 N.E.2d 163.\nA cause of action for loss of consortium is a tort action based on an injury to the personal relationship established by the marriage contract. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505; Hammond v. North American Asbestos Corp. (1982), 105 Ill. App. 3d 1033, 1040, 435 N.E.2d 540.) It is a separate cause of action from the impaired spouse\u2019s claim for his own injury (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 163, 317 N.E.2d 505; Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 477, 365 N.E.2d 1087), but derives from that claim. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505.) Courts have indicated that a cause of action for loss of consortium is grounded in a \u201ctransferred negligence\u201d theory whereby a defendant\u2019s duty to act with reasonable care toward the impaired spouse is \u201ctransferred\u201d to the deprived spouse. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357, 367 N.E.2d 1250 (dicta); Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 473, 438 N.E.2d 1187.) This transferred negligence means that a defendant\u2019s breach of his duty of care to the impaired spouse supports both the impaired spouse\u2019s negligence suit for his injury and the deprived spouse\u2019s suit for loss of consortium.\nBecause the loss of consortium action derives from the impaired spouse\u2019s action for his injury, it is dependent upon the establishment of the defendant\u2019s liability for the impaired spouse\u2019s injury. (Plocar v. Dunkin\u2019 Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 748, 431 N.E.2d 1175; Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 690, 399 N.E.2d 1355.) Thus, where the impaired spouse\u2019s claim fails as a matter of law, the deprived spouse\u2019s claim for loss of consortium must likewise fail. Plocar v. Dunkin\u2019 Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 748, 431 N.E.2d 1175; Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 690, 399 N.E.2d 1355.\nPlaintiff maintains that her suit was improperly dismissed because she claims that her husband\u2019s settlement of his suit against defendant did not bar her cause of action for loss of consortium. Defendant contends that because plaintiff\u2019s husband\u2019s release prohibited him from maintaining a cause of action against defendant, that plaintiff\u2019s claim was likewise prohibited, since a loss of consortium suit depends on the plaintiff\u2019s husband\u2019s ability to maintain a cause of action against defendant.\nNo Illinois reviewing court appears to have confronted the question whether a release by the impaired spouse binds the deprived spouse and therefore bars a suit for loss of consortium. Defendant cites several cases in which the loss of consortium action was barred by the termination of the impaired spouse\u2019s claim. These cases are distinguishable, however, because in each of them the impaired spouse\u2019s claim was involuntarily terminated because the impaired spouse was barred from recovery as a matter of law. (Plocar v. Dunkin\u2019 Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175 (impaired spouse failed to state a cause of action); Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 399 N.E.2d 1355 (impaired spouse\u2019s claim barred by the statute of limitations); Rollins v. General American Transportation Corp. (1964), 46 Ill. App. 2d 266, 197 N.E.2d 68 (impaired spouse contributorily negligent as a matter of law).) In those cases the impaired spouse could not have pursued his claim if he had so desired. Here, plaintiff\u2019s husband\u2019s claim was not involuntarily barred but was compromised and released. He could have pursued his claim if he had wished, but chose instead to settle.\nWhile it is true that a cause of action for loss of consortium derives from the impaired spouse\u2019s claim for his injury (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505), we agree with the court in Rosander v. Copco Steel & Engineering Co. (Ind. 1982), 429 N.E.2d 990, which held that \u201cplacing actions in a derivative posture does not give one party the right to waive the rights of another.\u201d (429 N.E.2d 990, 991.) Though derivative, the loss of consortium claim is still a separate cause of action. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 163, 317 N.E.2d 505.) Thus, we hold, as courts in several other States have held, that a release executed only by the impaired spouse does not bind the deprived spouse and, therefore, does not bar the deprived spouse\u2019s cause of action for loss of consortium. (Arnold v. Shawano County Agricultural Society (1983), Ill. Wis. 2d 203, 214-15, 330 N.W.2d 773, 779; Whittlesey v. Miller (Tex. 1978), 572 S.W.2d 665, 669; Rosander v. Copco Steel & Engineering Co. (Ind. 1982), 429 N.E.2d 990, 991; Deese v. Parks (1981), 157 Ga. App. 116, 118-19, 276 S.E.2d 269, 272; see also Prosser, Torts sec. 125, at 893 (4th ed. 1971). Contra, Hopson v. St. Mary\u2019s Hospital (1979), 176 Conn. 485, 494, 408 A.2d 260, 264; Millington v. Southeastern Elevator Co. (1968), 22 N.Y.2d 498, 507-08, 293 N.Y.S.2d 305, 312.) Therefore, the release executed by plaintiff\u2019s husband was not a bar to plaintiff\u2019s claim for loss of consortium and did not provide a proper basis for dismissing plaintiff\u2019s complaint based on this issue.\nDefendant also appears to argue that the joinder of defendant as a party in the dissolution of marriage proceeding bars plaintiff\u2019s action for loss of consortium. However, it is clear from the record that defendant was joined in that proceeding in order to prevent plaintiff\u2019s husband from dissipating the proceeds of his personal injury settlement with defendant during the pendency of the dissolution of marriage proceedings. These proceeds have been held to be marital property. (In re Marriage of Gan (1980), 83 Ill. App. 3d 265, 269, 404 N.E.2d 306.) Thus, the joinder of defendant in the dissolution proceeding was merely to protect marital property and has no bearing on plaintiff\u2019s loss of consortium action.\nIn their appellate briefs the parties have not articulated any additional arguments beyond those advanced as to the loss of consortium claim to support their positions on whether plaintiff\u2019s claim for recovery of expenses for which she became liable under the Family Expense Statute (Ill. Rev. Stat. 1981, ch. 40, par. 1015) is proper. A cause of action is maintainable against a tortfeasor by the deprived spouse for family expenses arising from the injuries to the impaired spouse for which the deprived spouse has become liable under the Family Expense Statute. (See Saunders v. Schultz (1960), 20 Ill. 2d 301, 310, 170 N.E.2d 163; Houghton v. Novak (1973), 9 Ill. App. 3d 699, 701, 292 N.E.2d 905.) Our reversal of the trial court\u2019s order of dismissal therefore encompasses both plaintiff\u2019s loss of consortium claim and her claim for family expenses.\nDefendant also argues that allowing plaintiff to maintain this suit will permit a double recovery. However, we believe double recovery can be avoided and that the trial court is in the best position to devise a method to avoid double recovery. See, e.g., Dini v. Naiditch (1960), 20 Ill. 2d 406, 427, 170 N.E.2d 881.\nFor the foregoing reasons the order of the circuit court of Lake County is reversed and remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nLINDBERG and HOPF, JJ., concur.", "type": "majority", "author": "JUSTICE REINHARD" } ], "attorneys": [ "Alfred L. O\u2019Connor, of Waukegan, for appellant.", "Michael K. Noonan, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee." ], "corrections": "", "head_matter": "JULIA BROWN, Plaintiff-Appellant, v. PATRICK D. METZGER, DefendantAppellee.\nSecond District\nNo. 82\u20141011\nOpinion filed October 18, 1983.\nAlfred L. O\u2019Connor, of Waukegan, for appellant.\nMichael K. Noonan, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee." }, "file_name": "0855-01", "first_page_order": 877, "last_page_order": 883 }