The trial court granted the motion to dismiss, but did not state the grounds for dismissal. On appeal, Bosch abandoned his claim for loss of consortium. Bosch asserts that the trial court erred, however, in granting the motion to dismiss with respect to the negligent infliction of emotional distress claim. The Court is first required to address the question of jurisdiction. Our court of appeals has held that section 287.120.2 precludes an action in the courts for a spouse's loss of consortium claim arising from a covered workplace injury.
Loss of consortium is a derivative claim that arises out of the original injury to the spouse.
A claim for the negligent infliction of emotional distress is different. It is not a derivative claim arising from the injury of another. Instead it is a claim for the emotional injury of a plaintiff arising from the negligent behavior of another. Asaro v. Cardinal Glennon Memorial Hosp. Bosch does not allege that he was present when his wife inadvertently stuck herself with the infected needle.