Tort Law Tidbit – Loss of Consortium Under the GTLA

Under the definitions in most insurance policies a loss of consortium claim is included as part of a personal injury claim and therefore the two claims count as one claim for purposes of liability coverage.

Did you know that under the Governmental Tort Liability Act loss of consortium is a seperate claim and therefore a spouse for an injured plaintiff can seek recovery under a “seperate” cap? The case reaching this conclusion is Swafford v. City of Chattanooga, 743 S.W.2d 174, 178-79 (Tenn. App. 1987).

The relevant language: “Although a husband’s or wife’s claim for loss of consortium will always be “derivative” in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse’s right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: ” ‘injury’ means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.” T.C.A. ㋔ 29-20-102(4) (1980 and Supp.1986). Although ㋔ 29-20- 403 refers only to “bodily injury or death” in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests–that of removal of immunity for injury from unsafe streets and highways of ㋔ 29-20-203–controls. It reads that “immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition….” (emphasis added). To hold that the language “bodily injury or death” of ㋔ 29-20-403 controlled would create an exception to the clear removals of immunity created by ㋔㋔ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium.”