OTLA Trial Lawyer Spring 2021

9 Trial Lawyer • Spring 2021 See Loss of Consortium p 10 would only exacerbate her trauma and prolong her recovery. After sending a policy limit demand, the driver’s insurer agreed to pay the $100,000 limit without much push back. Given the extent of Leslie’s treatment, that sum was not sufficient to compensate her for her economic damages, which included medical costs and wage losses. After re- solving the claim against the driver, Leslie agreed to pursue an underinsured motorist claim against her own insurer. Her decision to pursue an underin- sured motorist claim was not as difficult and conflicted as we were able to stipulate to key facts. In essence, we were able to strip away the driver’s “presence” as part of that action.We were also able to ensure that Leslie did not encounter a situation where her attacker would be present in any forum visible to her. Since Leslie could not endure pro- longing the action against the driver, we decided to pursue recovery of her hus- band’s claim for loss of consortium as a separate legal matter. This was particu- larly necessary also given that Leslie did not file her claims in a court of law. There are key points here to note. Once Leslie resolved her claims, she entered into a settlement agreement with the driver. She released her claims against the driver and his insurer, and the settle- ment agreement made no reference to any other person’s claims derivative to Leslie’s claims, and there were no refer- ences of consideration paid to Jeff. Immediately after the attack, Leslie retreated and became distrusting, with- drawn and cold toward Jeff. He had to tread with caution every time he was in Leslie’s presence. He also became the primary caretaker of their two young children and the family household. Jeff was not only suffering because of the pain his wife was in, but he was also mourning the sudden loss of his wife’s support, company, partnership and affection. Jeff was nearly at a breaking point due to the stress of assuming a two-fold par- enting and household role, while at the same time attempting to care for his depressed, bed-ridden wife. Simply put, Jeff ’s life was turned upside down when the driver attacked his wife. Although his injury was derivative to his wife’s claims, his injuries resulted in his own indepen- dent claim for loss of consortium dam- ages stemming from the driver’s attack. Derivative injury Shortly after we filed the lawsuit, the driver moved for summary judgment against Jeff ’s loss of consortium claim. The driver argued Jeff was barred from filing suit because his claimwas derivative to Leslie’s claims, and since Leslie settled her claims, Jeff had no right of action remaining. We disagreed. No consideration was paid to Jeff in resolution of his loss of consortium claim and he was not a party to the settlement between Leslie and the driver. Thus, Jeff ’s claim was