This is аn appeal from a grant of summary judgment by the Superior Court barring a wife from pursuing a claim for loss of consortium arising out of injuries sustained by her husband. The Supеrior Court ruled that wife’s claim was purely derivative of husband’s personal injury action and was subsequently foreclosed by a general release executed by the husband. We disagree and hold that although a cause of action for loss of consortium requires join-der with a spouse’s primary claim, the lоss of consortium claim is not lost if the spouse asserting the primary claim precludes join-der by unilaterally releasing the primary claim. Accordingly, we rеverse the decision of the Superior Court.
I
Renaye Jones, (“wife”) filed a complaint in the Superior Court on January 13, 1986 against appellee-defendant, Deborah Elliott (“Elliott”), alleging loss of consortium as a result of injuries sustained by her husband, Allen Jones (“husband”), in an automobile accident involving Elliott and husband. The facts surrounding the accident which occurred on January 25, 1984, are not at issue, although apparently Elliott was at fault. On May 17, 1985, the husband executed a gеneral release of his claim against Elliott in consideration of the payment of $36,000 by Elliott’s liability insurance carrier.
Wife was not a party to the release, and claims she had no knowledge of its execution. The insurance adjuster who secured the release from husband is no longer employed by the carrier and cannot be located. Based on information supplied by husband, however, it is reasonable to infer that the adjuster was aware оf the husband's marital status. In the Superior Court, and on appeal, Elliott, whose interests are asserted by her liability insurance carrier, does not contеnd that the wife was aware of the execution of the release or shared in its proceeds.
The Superior Court ruled that the wife’s claim for loss оf consortium is dependent upon the husband’s right to maintain an action for personal injuries, and that the release of the direct claim bars the derivаtive claim as well.
II
It is well settled in Delaware that either a husband or a wife has a cause of action for loss of consortium resulting from physical injury sustained by the other spouse due to the negligent acts of a third person.
Folk v. York-Shipley, Inc.,
Del.Supr.,
A cause of action for loss of consortium is predicated on the proof of three
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elements: (1) that the party asserting the cause of action was married to the person who suffered a physical injury at the time the physical injury occurred, (2) that, as a result of the physical injury, the other spouse was deprived of some benefit which formerly existed in the marriage and (3) that the injured spouse has a valid cause of action for recovery against the tortfeasor.
Lacy v. G.D. Searle and Co.,
Delaware case law has consistently held that a claim for loss of consortium is derivative and that the physically injured spouse must have a valid claim in order for the loss of consortium claim to spring into existence.
See Stenta v. Leblang,
Wife, on the other hand, contends that although her consortium claim is derivative of the primary claim it is nonetheless separate and independent and, once created, only she can release it. The separate viаbility of a consortium claim has been recognized under Delaware law.
Sheats v. Bowen,
D.Del.,
There is a split of authority in the jurisdictions which have addressed the question of whеther settlement of the direct claim serves to extinguish the consortium claim. It has been held that the consortium claim is wholly dependent on the primary claim and is extinguished upon the termination of the primary claim.
See Hopson v. St. Mary’s Hospital,
Conn.Supr.,
Ill
Both parties agree that the direct claim spouse must have a right to maintain a claim for personal injuries against the alleged tortfeasor before the noninjured spouse’s claim for loss of consortium may arise.
See Stenta v. Leblang,
The Superiоr Court held that, because wife’s claim for loss of consortium is dependent upon husband’s valid cause of action, the release of his direct claim also bars the derivative claim. However, in our view a spouse’s suit for loss of consortium is derivative of the physically injured spouse’s cause of аction only to the extent that it establishes the tortfeasor’s liability to the primary claim holding spouse. The physically injured spouse may not unilaterally еxtinguish the loss of consortium claim of the other spouse by signing a general *65 release, for the loss of consortium claim is not his to extinguish.
There is a differenсe between the right to extinguish a primary cause of action and the right to extinguish a derivative cause of action. The husband is the holder of the primаry cause of action for physical injury against the tortfeasor, and thus only he can extinguish his right to such claim. On the other hand, the wife is the holder of the derivаtive claim for loss of consortium. This is a claim for a separate and distinct injury resulting from the physical injury to the husband and may be maintained independently, if, аs occurred here, the spouse having the direct claim has unilaterally foreclosed the opportunity to assert the consortium claim.
Cf. Whittlesey v. Miller,
Tex.Supr.,
Thus, evеn though joinder of the consortium claim with the direct claim is required procedurally, the consortium claim will not be lost if a unilateral release of thе direct claim makes joinder impossible. The derivative nature of the claim does not make it completely subject to the whim of the other pаrties to the litigation. In the present action wife was not a party to the settlement and release negotiated by husband, thus wife is not bound by it and is free to pursue her separate yet derivative cause of action.
See Rosander v. Copco Steel & Engineering Co.,
Ind.App.,
To establish her derivative claim, notwithstanding husband’s release of his primary claim, wife must, of course, prove the underlying liability of the tortfeasor for the husband’s physical injury. Although we recognize that such a requirement is procedurally awkward, justice requires that the wife’s claim not be foreclosed by the husband’s unilateral action. Moreover, since Elliott’s liability carrier must share responsibility for the execution of the release, it also must assume the burden of defending the direct claim.
The grant of summary judgment is REVERSED and the matter is REMANDED for further proceedings.