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THOMAS A. MANZITTI AND PATRICIA MANZITTI v. DR. FRED R. AMSLER (10/03/88)

filed: October 3, 1988.

THOMAS A. MANZITTI AND PATRICIA MANZITTI, APPELLANTS,
v.
DR. FRED R. AMSLER, JR. AND WILLIAMSPORT ORTHOPEDIC HOSPITAL, APPELLEES



Appeal from the Order dated June 30, 1987 in the Court of Common Pleas of Lycoming County, Civil No. 83-02, 366.

COUNSEL

John C. Youngman, Jr., Williamsport, for appellants.

Joann Drust, Wilkes-Barre, for appellees.

Cavanaugh, Olszewski and Popovich, JJ. Popovich, J., files concurring and dissenting Opinion.

Author: Olszewski

[ 379 Pa. Super. Page 455]

Appellants, Thomas A. and Patricia Manzitti, appeal from the trial court's order granting appellees' petition to enforce a settlement agreement for personal injuries and loss of consortium. Appellants present two issues for our review: (1) whether settlement of an injured spouse's claim for personal injuries disposes of the non-injured spouse's loss of consortium claim, and (2) whether a settlement agreement is enforceable where an attorney wrongfully settles a case without first obtaining the consent of his/her client. For the reasons stated below, we affirm the trial court's order enforcing the settlement agreement.

[ 379 Pa. Super. Page 456]

Appellant Thomas Manzitti filed this medical malpractice action against appellees for injuries arising out of an operation performed by appellee, Dr. Fred Amsler, M.D., on August 19, 1982. Mr. Manzitti's injuries included, inter Page 456} alia, severed spinal nerves, permanent loss of bowel and bladder control, and sexual impotency. Appellant Patricia Manzitti, wife of Thomas, jointly filed a claim for loss of her husband's consortium.

Originally, appellants were represented by John Kocsis, Esquire. In early February 1986, appellees' insurance carrier, through its general agent, negotiated a settlement directly with Attorney Kocsis and offered $150,000.00 to settle the claims of both appellants.*fn1 Attorney Kocsis indicated to the insurance agent that he had authority to settle the case and, on February 6, 1986, accepted the settlement offer on behalf of both appellants. Appellees tendered the settlement draft to appellants on several occasions, and appellants, expressing their intention to abrogate the oral settlement agreement, refused to accept the settlement and sign the releases.

On April 18, 1986, appellants, through new counsel, filed a motion for continuance, withdrawal of counsel, and removal of the case from the trial list. In the motion, signed and verified by appellants, the following statements were made:

10. Patricia Manzitti was never consulted by Attorney Kocsis with respect to giving authority to settle her case and never authorized settlement of her case at any time or for any price.

11. The offer of the defense for One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars was not an offer to settle the case of Thomas Manzitti alone, but was an offer to settle both the case of Thomas Manzitti and Patricia Manzitti for a total payment of One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars, and no division between the two cases was made in said offer.

12. Thomas Manzitti authorized the settlement of his case for One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars on the belief as represented by Attorney

[ 379 Pa. Super. Page 457]

Kocsis that the most he could obtain in a jury verdict was Two Hundred Thousand and 00/100 ($200,000.00) Dollars.

The trial court subsequently granted the motion and removed the case from the trial list.

Appellees thereafter responded with a petition to enforce settlement which was argued before the trial court on March 9, 1987. At that hearing, the trial court ruled that paragraphs 11 and 12 of appellants' April 18, 1986 motion were judicial admissions by appellants of Thomas Manzitti's express authorization to settle his personal injury claim. The trial court, however, refused to hear evidence on whether Attorney Kocsis actually acquired express authority for Patricia Manzitti to settle the case prior to accepting appellees' offer. The trial court found that the settlement of Mr. Manzitti's claim extinguished the right of Mrs. Manzitti to proceed any further with her cause of action because her loss of consortium claim was derivative of her husband's personal injury claim. In addition, relying on Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983), the trial court concluded that the settlement agreement was enforceable regardless of whether Attorney Kocsis had appellants' express authority to settle their claims. Thus, the trial court ordered appellants to comply with the settlement agreement and this timely appeal followed.

Appellants' first contention is that the trial court erred by finding that a non-injured spouse's loss of consortium claim is barred by an injured spouse's settlement of his/her personal injury claim. For the purpose of discussing this issue, we find that the trial court properly determined that Mr. Manzitti authorized settlement of his personal injury claim. In addition, since the trial court refused to hear evidence on Mrs. Manzitti's alleged authorization of her claim, we will assume, for review purposes, that she did not authorize settlement of her loss of consortium claim.

[ 379 Pa. Super. Page 458]

Initially, we note that it is well-settled in Pennsylvania that an action for loss of consortium is derivative of the injured spouse's claim. See, e.g., Winner v. Oakland Township, 158 Pa. 405, 27 A. 1110 (1893); Linebaugh v. Page 458} Lehr, 351 Pa. Super. 135, 505 A.2d 303 (1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (1985); 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). The rationale for considering the claim derivative has been explained 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. Viewed in this light, it makes little sense to hold that an injured party's negligence would bar or limit his recovery for direct injury, but would not affect his spouse's recovery for indirect injury.

The consortium plaintiff . . . has suffered no direct injury . . . . [His/Her] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his/her] spouse.

Scattaregia, 343 Pa. Super. 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)).

The question of whether the non-injured spouse's claim for loss of consortium is barred by the injured spouse's settlement and release of his/her personal injury claim has yet to be directly addressed by a Pennsylvania appellate court. Several Pennsylvania decisions, however, support our holding today that a loss of consortium claim is a separate and distinct cause of action from the injured spouse's claim from which it was derived; and, consequently, that a claim for loss of consortium is not barred by the settlement and release of the injured spouse's personal injury claim. See Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952); Walker v. Philadelphia, 195 Pa. 168, 45 A. 657 (1900); Buttermore v. Aliquippa Hospital, 368 Pa. Super. 49, 533 A.2d 481 (1987); Vickodil v. Pennsylvania Ins. Guar. Ass'n, 356 Pa. Super. 325, 514

[ 379 Pa. Super. Page 459]

A.2d 635 (1986), allocatur denied, 514 Pa. 639, 523 A.2d 346 (1987); Hopkins v. Blanco, 224 Pa. Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974); Kowal v. Com., Department of Transp., 100 Pa. Commw. 593, 515 A.2d 116, allocatur denied, 514 Pa. 649, 524 A.2d 496 (1987).

As early as 1900, our Supreme Court intimated that loss of consortium is a separate and distinct cause of action. In Walker v. Philadelphia, 195 Pa. 168, 45 A. 657 (1900), our Supreme Court, commenting on a husband's claim for loss of consortium, stated: "His action now is on his own common-law right to compensation for the loss of his wife's services. No settlement or disposition of her claim could affect his without his consent." Walker, 195 Pa. at 174, 45 A. at 657.

In Vickodil v. Pennsylvania Ins. Guar. Ass'n, 356 Pa. Super. 325, 514 A.2d 635 (1986), this Court was presented with a situation where a husband and wife attempted to collect insurance proceeds for personal injury and loss of consortium damages through the Pennsylvania Insurance Guaranty Association Act, 40 Pa.S.A. ยง 1701.101, et seq. The insurance policy, which was issued by an insolvent insurer, expressly provided that compensation for loss of consortium damages was included in the personal injury claimant's recovery. This Court agreed with the Insurance Guaranty Association that it was only obligated to pay the individual claim of husband. As a part of the analysis, this Court stated:

[W]e must attempt to reconcile the opposing interpretations of the nature of a loss of consortium claim, one of which is proper for one purpose, namely the right of recovery of a spouse as "separate," and the other which is proper when a limitation of liability unites the two separate claims under the "persons injured" language [of an insurance policy], as in this case.

Vickodil, 356 Pa. Super. at 331, 514 A.2d at 638. While our purpose in Vickodil, supra, was to enforce the contractual provisions of the ...


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