Measure of Recovery –
Value of Nursing Services Provided by Family Members without Charge
Depouw v. Bichette, (2005) 162 Ohio App.3d 336, 2005-Ohio-3695:
The Second District Court of Appeals did a careful review and analysis of an interesting topic specifically dealing with the situation wherein a husband had elected to care for his wife who was injured in a motor vehicle accident. As a result of caring for his wife, the husband took vacation time from work in order to provide for his wife’s needs including bathing and going to the bathroom.
After filing the complaint, the plaintiffs sought to include a claim dealing with her husband’s lost wages. The case presents an interesting point inasmuch as at first blush, one would not attach much value to such a claim, but the appellate court began its analysis by comparing the competing theories in existence with regard to the subject matter.
In paragraph 9 of its opinion, the court stated that this subject matter was one of limited case law and stated the following:
“Few cases in Ohio have dealt with the situation in which damages were sought by an injured family member who received gratuitous nursing care from another family member.”
The court’s analysis turned upon other jurisdictions’ (state and federal courts) treatment of the matter, noting that where a spouse provides gratuitous nursing care, even in a situation wherein wages are lost as a result, the appropriate measure of damages was the cost of hiring an outside nurse to render the care and treatment and not the lost wages. On the other hand, several courts had found that the appropriate measure of damages was the actual value of wages lost by the spouse providing the gratuitous care and treatment.
The court stated in paragraphs 13-14 of its opinion, the following:
“A review of the factual situation in this case leads this court to the conclusion that the minority viewpoint is correct and that Mrs. Depouw should be able to recover for her husband’s lost wages.
When an individual is injured by the negligence of another and requires assistance with basic daily functions, it is not unreasonable for a spouse to prefer the assistance of a loved one over a total stranger, especially for a brief period such as in this case. As a consequence of Bichette’s negligence, the marital income of the Depouws was reduced as a result of Mr. Depouw’s lost wages.”
The court summarized its holding in paragraph 6 of its syllabus and indicated the following:
“Husband’s gratuitous nursing care for his injured wife caused a personal loss to wife, so that wife was entitled to recover, as damages in negligence action against third party relating to automobile accident, the value of wages lost by husband due to caring for wife for 12 days; husband had statutory duty to use his salary to support wife, and husband’s use of vacation time to care for wife caused the couple to lose a financial benefit.”
The unique aspect of this case which justifies its careful analysis in this Newsletter is the fact that loss of consortium claims could be supplemented by an individual spouse who takes vacation time and claims that during that vacation time, said individual was caring for an injured spouse. There would be little to no way to validate that nursing care was being provided inasmuch as it is being done on a gratuitous basis and the only work records that exist would be to the effect that the spouse was on vacation. This is a relatively unique theory of compensation and, in order to ensure the fact that all of our clients are briefed with regard to evolving legal theories, this particular case was analyzed and included in the Newsletter.
Fellow Servant Immunity Doctrine in Relation to an Uninsured Motorist as Defined in O.R.C. 3937.18
An interesting unreported case out of the Ninth District Court of Appeals provides a current evaluation of the dichotomy between the fellow servant immunity doctrine and uninsured motorist coverage. In Cottrill v. Wayne Mutual Ins. Co. (Ninth District 2005), 2005-Ohio-4937, the plaintiff, Bill Cottrill was injured while in the parking lot of his place of employment when a fellow employee negligently struck him with his car. Mr. Cottrill submitted a claim to the negligent employee’s insurer, but the insurer denied payment on the basis of the fellow servant immunity doctrine. Mr. Cottrill then submitted a claim to his uninsured motorist carrier which likewise denied payment. Mr. Cottrill then brought a declaratory judgment action against his uninsured motorist carrier.
Mr. Cottrill argued to the appellate court that “(1) the negligent employee was ‘uninsured,’ in that his insurer denied coverage, not merely liability; and (2) if the negligent employee does not have to pay the Cottrills, then Wayne Mutual should have to pay them because the Cottrills paid premiums and it is against public policy to let Wayne Mutual keep this money.” The Ninth District Court of Appeals upheld the trial court’s granting of summary judgment in favor of the uninsured motorist carrier.
Essentially, the Ninth District Court of Appeals examined the fellow servant immunity doctrine codified in R.C. 4123.741 in conjunction with the uninsured motorist statute codified in R.C. 3937.18. The Court’s justification in upholding summary judgment in favor of the insurer was twofold. First, the Court reasoned that the negligent employee was never uninsured as his liability carrier never denied him coverage. In fact, the insurer was willing to provide Mr. Cottrill a defense if a lawsuit was filed against him. Rather, the Court reasoned that the negligent employee was immune from liability, which is a defense that bars recovery in a tort suit.
Second, the Court stated that the definition of an uninsured motorist as set forth in R.C. 3937.18 did not include any reference to those persons immune under the fellow servant doctrine (R.C. 4123.741). Since the General Assembly had specifically made references to other codified immunities in the uninsured motorist definition, then the exclusion of the fellow servant doctrine from said definition mandated that a person immune under this section was not to be considered uninsured as defined in R.C. 3937.18.
The Court also dismissed Mr. Cottrill’s argument that “R.C. 4123.741 converts a private insurance contract into a government compelled charity (and) Wayne Mutual has money so it should have to pay the Cottrills, who want money.” The Court stated:
“Of course, the Cottrills ignore the basic premise of contract law, which allows two independent parties to establish their own benefits and obligations. Wayne Mutual agreed to assume the risk of paying the Cottrills certain benefits upon the occurrence of certain circumstances, and in exchange received payment from the Cottrills in the form of premiums. Correspondingly, the Cottrills paid Wayne Mutual in order that they would be insured against injury by uninsured motorists, which did not include co-employees. Had the Cottrills desired to be insured against injury by co-employees, they could have paid additional premiums and would now be entitled to the agreed-upon benefits--whatever might have been agreed upon. They did not. The statute gives the Cottrills exactly what they bargained for.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Measure of Recovery –
Value of Nursing Services Provided by Family Members without Charge
Depouw v. Bichette, (2005) 162 Ohio App.3d 336, 2005-Ohio-3695:
The Second District Court of Appeals did a careful review and analysis of an interesting topic specifically dealing with the situation wherein a husband had elected to care for his wife who was injured in a motor vehicle accident. As a result of caring for his wife, the husband took vacation time from work in order to provide for his wife’s needs including bathing and going to the bathroom.
After filing the complaint, the plaintiffs sought to include a claim dealing with her husband’s lost wages. The case presents an interesting point inasmuch as at first blush, one would not attach much value to such a claim, but the appellate court began its analysis by comparing the competing theories in existence with regard to the subject matter.
In paragraph 9 of its opinion, the court stated that this subject matter was one of limited case law and stated the following:
“Few cases in Ohio have dealt with the situation in which damages were sought by an injured family member who received gratuitous nursing care from another family member.”
The court’s analysis turned upon other jurisdictions’ (state and federal courts) treatment of the matter, noting that where a spouse provides gratuitous nursing care, even in a situation wherein wages are lost as a result, the appropriate measure of damages was the cost of hiring an outside nurse to render the care and treatment and not the lost wages. On the other hand, several courts had found that the appropriate measure of damages was the actual value of wages lost by the spouse providing the gratuitous care and treatment.
The court stated in paragraphs 13-14 of its opinion, the following:
“A review of the factual situation in this case leads this court to the conclusion that the minority viewpoint is correct and that Mrs. Depouw should be able to recover for her husband’s lost wages.
When an individual is injured by the negligence of another and requires assistance with basic daily functions, it is not unreasonable for a spouse to prefer the assistance of a loved one over a total stranger, especially for a brief period such as in this case. As a consequence of Bichette’s negligence, the marital income of the Depouws was reduced as a result of Mr. Depouw’s lost wages.”
The court summarized its holding in paragraph 6 of its syllabus and indicated the following:
“Husband’s gratuitous nursing care for his injured wife caused a personal loss to wife, so that wife was entitled to recover, as damages in negligence action against third party relating to automobile accident, the value of wages lost by husband due to caring for wife for 12 days; husband had statutory duty to use his salary to support wife, and husband’s use of vacation time to care for wife caused the couple to lose a financial benefit.”
The unique aspect of this case which justifies its careful analysis in this Newsletter is the fact that loss of consortium claims could be supplemented by an individual spouse who takes vacation time and claims that during that vacation time, said individual was caring for an injured spouse. There would be little to no way to validate that nursing care was being provided inasmuch as it is being done on a gratuitous basis and the only work records that exist would be to the effect that the spouse was on vacation. This is a relatively unique theory of compensation and, in order to ensure the fact that all of our clients are briefed with regard to evolving legal theories, this particular case was analyzed and included in the Newsletter.
Fellow Servant Immunity Doctrine in Relation to an Uninsured Motorist as Defined in O.R.C. 3937.18
An interesting unreported case out of the Ninth District Court of Appeals provides a current evaluation of the dichotomy between the fellow servant immunity doctrine and uninsured motorist coverage. In Cottrill v. Wayne Mutual Ins. Co. (Ninth District 2005), 2005-Ohio-4937, the plaintiff, Bill Cottrill was injured while in the parking lot of his place of employment when a fellow employee negligently struck him with his car. Mr. Cottrill submitted a claim to the negligent employee’s insurer, but the insurer denied payment on the basis of the fellow servant immunity doctrine. Mr. Cottrill then submitted a claim to his uninsured motorist carrier which likewise denied payment. Mr. Cottrill then brought a declaratory judgment action against his uninsured motorist carrier.
Mr. Cottrill argued to the appellate court that “(1) the negligent employee was ‘uninsured,’ in that his insurer denied coverage, not merely liability; and (2) if the negligent employee does not have to pay the Cottrills, then Wayne Mutual should have to pay them because the Cottrills paid premiums and it is against public policy to let Wayne Mutual keep this money.” The Ninth District Court of Appeals upheld the trial court’s granting of summary judgment in favor of the uninsured motorist carrier.
Essentially, the Ninth District Court of Appeals examined the fellow servant immunity doctrine codified in R.C. 4123.741 in conjunction with the uninsured motorist statute codified in R.C. 3937.18. The Court’s justification in upholding summary judgment in favor of the insurer was twofold. First, the Court reasoned that the negligent employee was never uninsured as his liability carrier never denied him coverage. In fact, the insurer was willing to provide Mr. Cottrill a defense if a lawsuit was filed against him. Rather, the Court reasoned that the negligent employee was immune from liability, which is a defense that bars recovery in a tort suit.
Second, the Court stated that the definition of an uninsured motorist as set forth in R.C. 3937.18 did not include any reference to those persons immune under the fellow servant doctrine (R.C. 4123.741). Since the General Assembly had specifically made references to other codified immunities in the uninsured motorist definition, then the exclusion of the fellow servant doctrine from said definition mandated that a person immune under this section was not to be considered uninsured as defined in R.C. 3937.18.
The Court also dismissed Mr. Cottrill’s argument that “R.C. 4123.741 converts a private insurance contract into a government compelled charity (and) Wayne Mutual has money so it should have to pay the Cottrills, who want money.” The Court stated:
“Of course, the Cottrills ignore the basic premise of contract law, which allows two independent parties to establish their own benefits and obligations. Wayne Mutual agreed to assume the risk of paying the Cottrills certain benefits upon the occurrence of certain circumstances, and in exchange received payment from the Cottrills in the form of premiums. Correspondingly, the Cottrills paid Wayne Mutual in order that they would be insured against injury by uninsured motorists, which did not include co-employees. Had the Cottrills desired to be insured against injury by co-employees, they could have paid additional premiums and would now be entitled to the agreed-upon benefits--whatever might have been agreed upon. They did not. The statute gives the Cottrills exactly what they bargained for.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.