Summary
In Reid v Spadone Mach. Co. (119 N.H. 198, 400 A.2d 54), the wife commenced a separate action for loss of consortium after entry of judgment by the husband.
Summary of this case from Siskind v. NorrisOpinion
No. 78-282
Decided March 30, 1979
1. Husband and Wife — Loss of Consortium Wife's cause of action for loss of consortium is created by statute as a separate and distinct claim and is not derivative from the claim of the husband. RSA 507:8-a.
2. Husband and Wife — Loss of Consortium — Res Judicata Claim Where wife was a separate and distinct party from her husband and was not a party to his personal injury action against manufacturer of machine on which husband was injured, neither res judicata nor collateral estoppel barred her action for loss of consortium, although her husband's action had been terminated by a judgment against the manufacturer. RSA 507:8-a.
3. Pleading — Parties — Joinder Joinder does not depend upon consent of the parties.
4. Husband and Wife — Loss of Consortium — Joinder With Spouse's Action Although wife should have brought her action for loss of consortium so as to have it joined with the action for personal injuries brought by her husband against the same defendant, fact that, for purposes of judicial administration, wife's action should have been joined with that of her husband did not justify a dismissal of her action.
Burns, Bryant, Hinchey, Cox Shea, of Dover (Jody A. Handy orally), for the plaintiff.
Calderwood, Ouellette Hallisey, of Dover (William L. Tanguay orally), for the defendant.
The issue in this action for loss of consortium is whether the wife's action is barred because her husband's action has been terminated by a judgment against the same defendant. We hold that the claim is not barred.
Plaintiff's husband was injured on November 15, 1974, while using a machine manufactured by the defendant in the course of his employment by Davidson Rubber Company. He brought suit against the defendant and a trial resulted in a verdict in his favor in the amount of $150,000. After the entry of judgment in that case, plaintiff brought this action for loss of consortium. Defendant filed a "special plea and brief statement" claiming that the action was barred by res judicata and collateral estoppel. Plaintiff's objection to the plea was sustained and defendant's exception was transferred by Cann, J.
[1, 2] A wife's cause of action for loss of consortium is created by statute as a separate and distinct claim and is not derivative from the claim of the husband. RSA 507:8-a. The plaintiff is a separate and distinct party from her husband and she was not a party to his action. Therefore, neither res judicata nor collateral estoppel against her result from that judgment. Parklane Hosiery Co. v. Shore, 99 S. Ct. 645 (1979).
[3, 4] Defendant argues that the plaintiff should not be allowed to bring this action after waiting until the conclusion of her husband's suit. We agree that plaintiff should have brought her action so as to have it joined with that of her husband. Plaintiff's brief states that defendant would not agree to such a joinder. Joinder, however, does not depend upon consent of the parties. The fact that, for the purpose of judicial administration, plaintiff's action should have been joined with that of her husband does not however justify a dismissal of her action. It may be that consideration will be given by the superior court to a mandatory joinder rule in cases such as this, but none presently exists to bar plaintiff's action.
Exception overruled.