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Neely v. Kossove

Decided: September 21, 1984.


Minuskin, J.s.c.


Plaintiff's husband sustained injuries in an automobile accident. His claim was settled without litigation and a release was executed and delivered. Subsequently plaintiff instituted this action for loss of consortium. Defendants now seek summary judgment dismissing plaintiff's complaint.

Defendants rely on Ekalo v. Constructive Serv. Corp. of Am., 46 N.J. 82, 96 (1965), in which the court said: "[a] wife's consortium claim may be prosecuted only if joined with the husband's action." Defendants argue that such language permits a claim for consortium to be instituted only if brought together with the injured spouse's claim.

Ekalo established in New Jersey the viability of a wife's claim for consortium in cases in which her husband was negligently injured. The Ekalo court cited the seminal case Hitaffer

v. Argonne Co., 183 F.2d 811 (D.C.Cir.1950), cert. den., 340 U.S. 852, 71 S. Ct. 80, 95 L. Ed. 624 (1950), and Simeone, "The Wife's Action for Loss of Consortium -- Progress or No?", 4 St.Louis U.L.J. 424 (1957). Both authorities recognized that the wife's loss of consortium entitles her to damages and is a separate and distinct personal loss suffered by her. The court in Ekalo, supra, said: "Her loss when he suffers an accident . . . is as immediate and direct as his would be if she had been the subject of the accident." Id., 46 N.J. at 90. In order to provide for "a full and complete recovery for the family," it would be "more just and more forthright for the law to recognize with equality the respective claims [of husband and wife]. . . ." Id. at 91.

The joinder of the claim of the injured spouse with the per quod consortium claim in a single proceeding was required by Ekalo solely to "protect against the suggested danger of double recovery." Id. at 92. That prospect, i.e., the payment to the injured spouse to include the non-injured spouse's loss, is not likely in the instant case and not one deserving of consideration. A bargain for release secured by a knowledgeable insurer would not permit payment of a greater sum than the value of the claims released. Double recovery under those circumstances is non-existent.

Defendants further contend that plaintiff's claim is derivative and entirely dependent upon her husband's cause of action. Without it her claim may not be prosecuted. To conclude that because it is derivative it may not be instituted unless her husband's claim is still actionable would ignore the fact that her claim is a separate and distinct cause of action. Derivative means "come from another -- owing its existence to something foregoing." Black's Law Dictionary 530 (rev. 4th ed. 1957); thus it is the husband's injury and not his cause of action that accounts for the creation of the wife's right to litigate. To succeed in her action she would still have to establish through credible evidence the liability of the tortfeasor as well as her damage loss. Her right to do so cannot be affected by the

injured spouse's release of his claim since her right to a recovery is separate and distinct.

There is no case law in New Jersey permitting a wife's suit for consortium to proceed without joinder with her husband's claim because of his prior settlement. However, other jurisdictions have so held. See, e.g., Deese v. Parks, 157 Ga.App. 116, 276 S.E. 2d 269 (1981); Rosander v. Copco Steel & Engineering Co., 429 N.E. 2d 990, 29 A.L.R. 4th 1196 (Ind.App.1982); Gillespie v. Papale, 541 F. Supp. 1042 (D.C.Mass.1982); "Injured Party's Release of Tortfeasor as Barring Spouse's Action for Loss of Consortium," 29 A.L.R. 4th 1200.

In finding a wife's agreement to indemnify no bar to the husband's subsequent cause of action, the court in Deese, supra, said:

As has been pointed out, "[w]hen a married woman is injured by the wrongful conduct of another, two different causes of action may arise: the one in her favor for her own pain and suffering, and the other in favor of the husband for the loss of his wife's services and for expenses incurred as a consequence of the injuries to her. These causes of action are separate and distinct, and in favor of different parties." [Emphasis supplied.] Georgia R. & c. Co. v. Tice, 124 Ga. 459, 461, 52 S.E. 916. See Community Gas Co. v. Williams, 87 Ga.App. 68, 83(6), 73 S.E.2d 119; Savannah & A.R. Co. v. Newsome, 90 Ga.App. 390, 395(2), 83 S.E.2d 80; Martin v. Gurley, 201 Ga. 493, 494, 39 S.E.2d 878. Thus, the two cases are separate and often separately tried. When this is true, the fact that the wife might not recover in her case would not act to bar the husband from recovering in his case ...

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