119 N.H. 198 | N.H. | 1979
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.
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).
Defendant argues that the plaintiff should not be allowed to bring this action after waiting until the conclusion of her husband’s
Exception overruled.