385 S.W.3d 694
Tex. App.2012Background
- Maes suffered a spinal injury in Oct. 2000 while working as a truck driver.
- On July 6, 2001, Dr. Cho (EPOSG) performed lumbar surgery on Maes.
- Maes’ postoperative condition allegedly included foot drop, weakness, urinary/sexual dysfunction, and progressive paraplegia.
- Maes’ personal-injury suit against EPOSG and Dr. Cho was filed in 2003; the EPOSG claim was dismissed with prejudice in 2004 and affirmed on appeal in 2007.
- In Sept. 2010, Vincent and Cynthia Maes filed suit on Isabel Maes (then 11) alleging loss of parental consortium against EPOSG.
- ICTSP intervened in 2010 asserting subrogation/reimbursement rights; EPOSG moved for summary judgment asserting (a) loss of consortium barred by father’s statute of limitations and (b) derivative bar from the father’s prior dismissal; trial court granted summary judgment for EPOSG; appellants appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Isabel’s loss of parental consortium time-barred by the father’s statute of limitations? | Isabel’s claims are separate and independent. | Loss is derivative; barred by father’s time bar. | Yes; derivative claim extinguished by father’s statute of limitations. |
| Does dismissal with prejudice of Maes’ underlying claim bar Isabel’s loss of parental consortium? | Derivative claims survive despite underlying dismissal. | Derivative claim barred when underlying claim dismissed with prejudice. | Yes; Isabel’s claim barred by dismissal with prejudice. |
Key Cases Cited
- Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990) (loss of parental consortium is derivative in part; defenses affect child’s claim)
- Nash ex rel. Nash v. Selinko, 14 S.W.3d 315 (Tex.App.-Houston [14th Dist.] 1999) (derivative consortium claims subject to same limitations as underlying claim)
- Upjohn Co. v. Freeman, 885 S.W.2d 538 (Tex.App.-Dallas 1994) (consortium claims subject to same defenses as underlying claim)
- Barker v. Halliburton Co., 645 F.3d 297 (5th Cir.2011) (loss-of-consortium must derive from underlying tort to be viable)
- Am. Industries Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126 (Tex.App.-Houston [14th Dist.] 2001) (loss-of-consortium barred where injured party has no recovery)