§23.12 Loss of Consortium (Personal Injury Cases)

The Case : Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555 (Tenn. 2001).

The Basic Facts: This is a declaratory judgment action in which the claimants sought a declaration that the wife's loss of consortium claim related to injuries sustained as a result of her husband's work-related injury is not subject to a workers' compensation lien.

The Bottom Line:

• "It is derivative in the sense that Mrs. Hunley's loss of consortium claim originates from Mr. Hunley's claim for his personal injuries." 38 S.W.3d at 557.
• "We have held, however, that loss of consortium is ''a separate claim from that of an injured spouse.'' Tuggle, 922 S.W.2d at 108 (Tenn. 1996) (quoting Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. Ct. App. 1989)). The Court of Appeals has also held that '[t]he right to recover for loss of consortium is a right independent of the spouse's right to recover for the injuries themselves.'Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987); see also Tuggle, 922 S.W.2d at 108 (citing Swafford with approval). These cases recognize that a spouse's loss of consortium claim is a distinct cause of action vested solely in the spouse." Id. at 557-58.

Other Sources of Note : Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d 751 (Tenn. 2006). (workers' compensation statutes do allow for death benefits to be paid, and thus any recovery from a third-party tortfeasor for wrongful death is subject to subrogation liens by the employer); Taylor v. Beard , 104 S.W.3d 507 (Tenn. 2003), petition for reh'g denied, (May 2, 2003) (declining to create common law cause of action for loss of parental consortium in personal injury cases); Tuggle v. Allright Parking Systems, Inc., 922 S.W.2d 105 (Tenn. 1996) (adopting majority view that fault of physically injured spouse reduces or bars recovery of other spouse); Jackson v. Miller, 776 S.W.2d 115, 116-17 (Tenn. Ct. App. 1989) (defining consortium as "'the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation'" (quoting Manning v. Altec, Inc., 488 F.2d 127, 132 (6th Cir. 1973)); Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987) (loss of consortium claim is a separate claim for purpose of the damage cap in a GTLA action).