Is a spouse's loss of consortium claim merged with the spouse's personal injury claim?

3 To prevent double recovery, an employer is subrogated to its employee's rights against third party tortfeasors. It may "recover workers' compensation benefits it has become obligated to pay and/or has paid by (1) bringing an action directly against the tortfeasor ( 3852), (2) joining as a party plaintiff or intervening in an action brought by the employee ( 3853), or (3) allowing the employee to prosecute the action and then applying for a first lien against the resulting judgment or settlement. ( 3856, subd. (b).)" (Abdala v. Aziz (1992) 3 Cal.App.4th 369, 374, 4 Cal.Rptr.2d 130, fn. omitted.)

4 In Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21, 31-33, 212 Cal.Rptr. 852 we held that absent language to the contrary in the insurance policy, an independent loss of consortium claim is not merged with the spouse's claim for personal injuries under the "per person" policy limit. Rather, the higher "per occurrence" policy limit applies. Here, the record does not include a copy of the insurance policy, but we assume it specifically provided for the merger of spouses' claims.