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STEPHEN P. LINEBAUGH v. GEORGE H. LEHR. APPEAL CYNTHIA M. SNYDER (02/20/86)

filed: February 20, 1986.

STEPHEN P. LINEBAUGH, ESQUIRE, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES N. SNYDER, JR., DECEASED, AND CYNTHIA M. SNYDER, INDIVIDUALLY
v.
GEORGE H. LEHR. APPEAL OF CYNTHIA M. SNYDER



Appeal from Judgment of the Court of Common Pleas, Civil Division, of York County, No. 83-S-948.

COUNSEL

John Thompson, Jr., York, for appellant.

George F. Douglas, Jr., Carlisle, for appellee.

Wieand, Olszewski and Watkins, JJ.

Author: Wieand

[ 351 Pa. Super. Page 136]

Charles N. Snyder, Jr. was killed when the bicycle on which he was riding was struck by an automobile operated by George H. Lehr. Stephen P. Linebaugh, Esquire, the personal representative of the decedent's estate, together with Cynthia M. Snyder, the decedent's widow, filed a three count complaint asserting wrongful death and survival actions and a separate cause of action on behalf of the widow for loss of consortium. State Farm Mutual Automobile Insurance Co., which had written a policy of liability insurance for the Lehr vehicle with limits of $25,000 per person and $50,000 per accident, undertook the defense of the action. The insurer subsequently acknowledged liability

[ 351 Pa. Super. Page 137]

    and offered policy limits of $25,000 to settle the wrongful death and survival actions. This offer was accepted, and the settlement was approved by the court.*fn1 The widow, however, insisted that she had a separate and independent claim for loss of consortium. A petition for declaratory judgment, therefore, was filed by the insurer to obtain an adjudication regarding any possible liability it might have on a separate claim by the widow for loss of consortium. The trial court held that the widow did not have a separate claim for loss of consortium and dismissed her claim. Mrs. Snyder appealed. We affirm.

"Pennsylvania courts have long held that an action for loss of consortium is derivative [of the injured spouse's claim]." Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 455, 495 A.2d 552, 553 (1985). See: Winner v. Oakland Township, 158 Pa. 405, 27 A. 1110 (1893); Hopkins v. Blanco, 224 Pa. Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974); Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617 (1971); Elser v. Union Paving Co., 167 Pa. Super. 62, 74 A.2d 529 (1950). See also: Klein v. Council of Chemical Associations, 587 F.Supp. 213 (E.D.Pa.1984). Recently, in the course of determining whether a spouse's damages for loss of consortium should be reduced by the percentage of comparative negligence attributed to the injured spouse, this Court characterized a claim for loss of consortium as follows:

"The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages -- direct and indirect -- suffered as a result of the principal plaintiff's injury . . . . The consortium plaintiff . . . has suffered no direct injury . . . . Her right to recover is derived, both in a literal and legal sense, from the injury suffered by her spouse."

Scattaregia v. Shin Shen Wu, supra, 343 Pa. Superior Ct. at 455-456, 495 A.2d at 553-554, quoting Maidman v. Stagg, 82 A.D.2d 299, 304, 441 N.Y.S.2d 711, 715 (1981).

[ 351 Pa. Super. Page 138]

In the instant case, appellant does not dispute the principle that a loss of consortium claim is derivative in the sense that it may be denied or reduced on the basis of an injured or deceased spouse's contributory negligence. She argues, however, that she is "a second, unwilling victim" and should be able to institute suit in her own right, independent of the wrongful death and survival actions brought by the personal ...


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