Whittlesey v. Miller - 572 S.W.2d 665 (Tex. 1978)

Rule:

An action for negligent impairment of consortium contemplates a single tortious act which injures both spouses by virtue of their relationship to each other. While the impaired spouse sustains direct physical injuries, the deprived spouse sustains damage to emotional interests stemming from their relationship. In the respective causes of action, the impaired spouse would have the exclusive right to recover for the normal damages associated with such bodily injuries. The deprived spouse would have the right to bring an action for the loss of consortium and seek recovery on the basis of harm to the intangible or sentimental elements. Finally, while the deprived spouse's suit for loss of consortium is considered to be derivative of the impaired spouse's negligence action to the extent that the tortfeasor's liability to the impaired spouse must be established, the consortium action is, nevertheless, independent and apart from that of the impaired spouse's negligence action.

Facts:

Respondent's husband was injured in an automobile accident involving petitioner. The husband settled his claim with petitioner, but respondent filed an independent action to recover for loss of consortium. The Court of Civil Appeals held that respondent could maintain an independent action to recover for her loss of consortium occasioned by petitioner's negligent injury to respondent's husband. Petitioner appealed. 

Issue:

Could the respondent file an independent action for loss of consortium, notwithstanding the fact that petitioner settled with respondent’s husband?

Answer:

Yes.

Conclusion:

The court affirmed the judgment of the Court of Civil Appeals, emphasizing that consortium damages were distinct from the damages incurred by the "impaired spouse." Furthermore, although the damages were of an intangible or sentimental character, they were not illusory. Respondent's loss was real and worthy of compensation. In so holding, the court disapproved of Garrett v. Reno Oil Co., 271 S.W.2d 764 (Tex. Civ. App. Fort Worth 1954). The court held that a consortium action did not amount to a double recovery to the community, because the damages were distinct, and under Tex. Fam. Code Ann. § 5.01(a)(3) such recovery was separate property. Thus, respondent's action was not barred by her husband's settlement. Furthermore, though it touched the marital relationship, recognition of a consortium action was not within the legislative ambit of community property.