Full Opinion (html_with_citations)

                               THIRD DIVISION
                                DOYLE, P. J.,
                  PIPKIN, J., and SENIOR JUDGE FULLER

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules



                                                                  December 28, 2023




In the Court of Appeals of Georgia
 A23A1465. PRIESTER v. TURNER et al.

      FULLER, Senior Judge.

      The trial court granted summary judgment to the defendants on Shelly

Priester’s claim for loss of consortium, ruling that the prior dismissal with prejudice

of her husband’s underlying personal injury action barred her separate lawsuit. Priester

appeals. Because the Supreme Court’s decision in Stapleton v. Palmore,
250 Ga. 259, 259
 (
297 SE2d 270
) (1982), requires a different result, we reverse.

      The relevant facts, which are not disputed, show that Priester’s husband, Mark

Priester, was involved in a vehicle accident with Charles Turner. Mark sued Turner

to recover for his injuries and also served State Farm Mutual Automobile Insurance

Company as his underinsured motorist carrier. Mark voluntarily dismissed that

complaint without prejudice, but later filed a renewal action against Turner and again
served State Farm. The trial court dismissed the renewal action with prejudice, ruling

that Mark had failed to serve Turner and had not responded to State Farm’s discovery

requests. Mark did not appeal that ruling.

         Two years after the dismissal of Mark’s renewal action, Priester filed this

lawsuit against Turner, asserting a claim for loss of her husband’s consortium as a

result of the accident, as well as claims for punitive damages and attorney fees. Priester

apparently served State Farm, which filed an answer. Turner and State Farm moved

for summary judgment, arguing that because Mark’s personal injury claim was “barred

as a matter of law,” Priester’s derivative loss of consortium claim also was barred. The

trial court granted the defendants’ motions, and Priester appeals, arguing that the trial

court erred because the outcome of Mark’s claim has no effect on her consortium

claim.

         The trial court relied primarily on Holloway v. Northside Hosp.,
230 Ga. App. 371

(
496 SE2d 510
) (1998), in which a husband and wife filed a single complaint against the

hospital, with the wife asserting personal injury claims based on a fall she sustained as

a patient there, and the husband asserting a loss of consortium claim. We affirmed the

trial court’s dismissal of the wife’s claim for failure to attach an expert affidavit as



                                             2
required by OCGA § 9-11-9.1. Id. We also held that the trial court properly dismissed

the husband’s claim because

      [his] action is a derivative one, stemming from the right of the other
      spouse to recover for her injuries. When the other spouse cannot recover
      from the alleged tortfeasor as a matter of law, . . . the alleged tortfeasor
      also is not liable for loss of consortium arising from those injuries. Here,
      [the wife] cannot recover because of her failure to attach a professional
      negligence affidavit, and thus [the husband] has no claim for the loss of
      consortium.


Id. at 371. We have applied this same reasoning in many other cases, holding that when

both spouses sue an alleged tortfeasor in a single action, a judgment against the injured

spouse necessarily precludes recovery on the other spouse’s loss of consortium claim.

See, e.g., Sheaffer v. Marriott Intl.,
349 Ga. App. 338, 342
 (2) (
826 SE2d 185
) (2019);

Behforouz v. Vakil,
281 Ga. App. 603, 604
 (
636 SE2d 674
) (2006). The reason for this

rule is to avoid inconsistent judgments in the same case. See Stapleton,
250 Ga. at 259

(“where the injured person and the spouse combine their separate claims in one suit,

. . . the loss of consortium claim is a ‘derivative’ claim and where one jury has heard

the same evidence on the same issue it cannot render inconsistent verdicts as might




                                           3
two separate juries”); Treglown v. K-Mart Corp.,
245 Ga. App. 428, 431
 (
537 SE2d 173
)

(2000) (similar).

      But a different analysis applies where, as here, the other spouse brings a separate

action for loss of consortium:

      The rule is well established that when the personal injury and loss of
      consortium claims of the spouses are tried separately and the alleged
      tortfeasor prevails on the merits at the first trial, the other claim may be
      maintained later because it is a “separate” and “distinct” claim of
      another person who was not a party or privy to the previous proceedings
      and who, therefore, is not bound by the judgment therein.


Stapleton,
250 Ga. at 260
. See also Winkles v. Thomas,
164 Ga. App. 715, 715
 (
298 SE2d 260
) (1982) (following Stapleton).1 Thus, although a loss of consortium claim is

dependent upon the injured spouse having a right of action for personal injury, it is

nonetheless an independent claim that is “personal to the consortium claimant.” Hicks

v. Universal Health Svcs.,
364 Ga. App. 769
, 776 (1), n. 35 (
874 SE2d 877
) (2022). See

      1
        Similarly, the fact that the injured spouse’s claim may be time-barred does not
affect the viability of a loss of consortium action, which has a longer limitation period.
See, e.g., Brent v. Hin,
254 Ga. App. 77, 79
 (2) (
561 SE2d 212
) (2002) (“Because it
appears that [the injured spouse] could have recovered absent the statute of limitations
bar, [the other spouse] can recover for loss of consortium.”). See also OCGA § 9-3-33
(establishing a limitation period of two years for personal injury claims, but four years
for loss of consortium claims).
                                            4
also Walden v. Coleman,
105 Ga. App. 242, 243
 (
124 SE2d 313
) (1962) (Georgia law

recognizes a spouse’s “independent cause of action for the loss of consortium of [the

other spouse] due to a tortious injury inflicted upon him [or her.]”). Because Priester’s

separately-filed lawsuit asserts an independent cause of action personal to her, the

dismissal of Mark’s renewal complaint does not bar her subsequent complaint. The

trial court erred in ruling otherwise.

      The defendants cite Henderson v. Hercules, Inc.,
253 Ga. 685
 (
324 SE2d 453
)

(1985), and White v. Hubbard,
203 Ga. App. 255
 (
416 SE2d 568
) (1992) — two loss of

consortium cases brought by wives whose husbands never had any viable personal

injury causes of action themselves. In Henderson, the wife sued her husband’s

employer after he was injured on the job; his own claim was preempted by the

Worker’s Compensation Act. See
253 Ga. at 685
. In White, the wife sued a bar where

her husband drank alcohol before being hurt in a wreck; he had no right of action due

to controlling precedent prohibiting a consumer from suing a provider of alcoholic

beverages for injuries resulting from his own consumption. See
203 Ga. App. at 255
-

256.2 In each case, the wife’s loss of consortium action failed because her husband

      2
        See Sutter v. Hutchings,
254 Ga. 194, 199
 (2) (
327 SE2d 716
) (1985) (social
hostess who gave alcohol to a noticeably intoxicated guest, knowing he would soon be
                                            5
“ha[d] no tort claim” and “[her] property right could only vest if his cause of action

be vested, which . . . it is not.” White,
203 Ga. App. at 256
 (quoting Hercules). In other

words, a complaint filed by either husband would have been subject to a motion to

dismiss for failure to state a claim. Thus, there was never any underlying personal

injury cause of action on which to base a loss of consortium claim. In this case, by

contrast, Mark’s personal injury renewal action was dismissed not because he never

had a viable cause of action, but for lack of service and discovery noncompliance. In

light of the Supreme Court’s ruling in Stapleton,
250 Ga. at 260
, the result in Mark’s

case does not foreclose Priester’s independent, subsequent action.

      Judgment reversed. Doyle, P. J., and Pipkin, J., concur.




driving, was not liable for injuries he incurred due to his own negligence), superseded
in part by statute as recognized by Riley v. H & H Operations,
263 Ga. 652
 (
436 SE2d 650
) (1993).
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