Ambrose By and Through Ambrose v. Illinois-California Exp., Inc.
| Citation | 729 P.2d 331,151 Ariz. 527 |
| Decision Date | 07 August 1986 |
| Docket Number | ILLINOIS-CALIFORNIA,No. 1,CA-CIV,1 |
| Parties | Chad AMBROSE and Robin Ambrose, minors, By and Through their mother and next friend, Dallene AMBROSE, Plaintiffs-Appellants, v.EXPRESS, INC., a Nebraska corporation authorized to do business in the State of Arizona, Aubrey Edsel McCurdy and Jane Doe McCurdy, husband and wife, Defendants-Appellees. 8563. |
| Court | Arizona Court of Appeals |
Langerman, Begam, Lewis and Marks by Samuel Langerman and Thomas F. Dasse, Phoenix, for plaintiffs-appellants.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth and Beshears, P.C. by Ralph Hunsaker, Scott E. Boehm and David M. Bell, Phoenix, for defendants-appellees.
The issue in this appeal is whether the trial court erred: (1) in concluding that
[151 Ariz. 528] Arizona law does not recognize the existence of a cause of action in a minor child for loss of parental consortium; or (2) in refusing to apply Michigan rather than Arizona law on the issue.
On July 13, 1980, Hillard Ambrose was severely injured in a three-truck collision while driving a large "tractor-trailer" truck on Interstate 40 near Ashfork, Arizona. Ambrose, his wife Dallene, and his minor children Chad and Robin were all residents of Michigan. The drivers of the other two trucks were not residents of either Michigan or Arizona and their trucking companies were not incorporated in either Michigan or Arizona.
On July 13, 1981, Ambrose and his wife filed a personal injury action in Maricopa County superior court against the drivers of the other two trucks, McCurdy and Zebel, and against the companies which owned the trucks, Illinois-California Express, Inc. and Willis Shaw Frozen Express, Inc. The Ambroses sought recovery for Hillard's injuries and for his wife Dallene's loss of consortium. The complaint was amended to include claims by the two Ambrose children for loss of parental consortium. Numerous other suits arising out of the accident were filed by other parties and were consolidated with the Ambrose suit for trial to a jury. The jury subsequently awarded damages to both Ambrose and his wife against the drivers and owners of the other two trucks. Illinois-California Express, Inc. and McCurdy have filed an appeal from the judgment granting the damage awards. That appeal is not before us at this time.
The claims of the Ambrose children were not allowed to go to the jury; the trial court determined that Arizona does not recognize a cause of action for loss of parental consortium and that Arizona law should apply rather than Michigan law, which recognizes such a cause of action. Because the trial court believed that counsel for the Ambroses made remarks at trial which may have caused the jury to believe it could consider the effect of Ambrose's injuries on his children in assessing damages for Ambrose and his wife, the trial court admonished the jury as follows:
Before we start with Mr. Hunsaker's closing argument, ladies and gentlemen, so that there is no misunderstanding, the law does not permit children to recover for injuries to a parent. Therefore, a verdict for Mr. Ambrose, if any, cannot include a damage claim for any of the Ambrose children.
Thereafter, the trial court entered a formal order dismissing the children's cause of action for loss of parental consortium. The appellants Chad and Robin Ambrose appeal from that order.
In Jeune v. Del E. Webb Constr. Co., 77 Ariz. 226, 269 P.2d 723 (1954) the Arizona Supreme Court expressly ruled that a minor child has no cause of action for damages resulting from personal injury to a parent. In that case, the court held that neither the wife nor the minor child had a separate cause of action for damages resulting from the negligent injury of the husband and father. The court observed that the common law is and always has been that the wife has no such cause of action: "[i]t never has been the law that multiple actions could be brought by each member of the family for a negligent injury sustained by the father." 77 Ariz. at 228, 269 P.2d at 724.
The appellants argue that the Jeune case should be disregarded by this court because of subsequent opinions by Arizona courts recognizing claims for loss of consortium brought by various other family members. In City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972), the Arizona Supreme Court joined a growing number of jurisdictions granting wives the right to sue for loss of consortium for the negligent injury of their husbands, thereby overruling the portion of Jeune which denied that right to wives. In Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (App.1985), a question of first impression in Arizona We also note that the Supreme Court has now recognized that a cause of action exists for parents for loss of consortium of an injured adult child. Frank v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986). These cases certainly call in question the continuing validity of Jeune. However, whether prior decisions of the highest court of the state are to be disaffirmed is a question for that court. Robles v. Severyn, 19 Ariz.App. 61, 504 P.2d 1284 (1973). Since we are not empowered to overrule decisions of the Supreme Court, State v. Stotts, 8 Ariz.App. 340, 446 P.2d 244 (1968), we consider the issue no further.
[151 Ariz. 529] was raised concerning whether a cause of action was available to parents for the loss of consortium of an injured minor child. In determining that the cause of action should be recognized in Arizona, Division 2 of this court expressly stated it was not deciding whether Arizona recognizes a child's claim for loss of parental consortium. Petition for review to the Arizona Supreme Court was denied.
Appellants argue that the trial court should have applied Michigan law in deciding whether the appellants could maintain a claim for loss of parental consortium. If the trial court had applied Michigan law on the question, there is no doubt but that it would have found the appellants were entitled to maintain their claim. Michigan has been in the forefront of jurisdictions allowing children to sue for loss of parental consortium. Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981).
In analyzing conflict of law problems in order to determine which state's law to apply, Arizona courts follow the rules embodied in the Restatement (Second) of Conflicts (1971). See Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968) (). There are three sections of the Restatement applicable to this case. The first is § 145 which sets forth general principles to guide courts in deciding choice of law questions involving torts:
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
The second is § 6, referred to in § 145. It sets forth choice-influencing factors relevant to choosing the applicable rule of law:
§ 6. Choice-of-law principles
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
The third, § 146, focuses on personal injury actions:
§ 146. Personal Injuries
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
In determining whether Arizona or Michigan 1 has the more significant relationship to the occurrence and to the parties in light of the particular issue raised in this case, we start by analyzing the four contacts listed in § 145(2). Of the four contacts, three attach to Arizona, the place of injury, the place where the conduct causing the injury occurred, and the place where the relationship between the parties centered, to the extent that there was any relationship. The only such contact Michigan has is that it is the home state of the appellants. Neither Arizona nor Michigan has any significant contact with the various defendants involved in the case since each were domiciled or incorporated in other states. Although Arizona is the state with the most number of contacts listed in § 145(2), the determination of which state has...
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