Christie v. Maxwell

• Decision Date: 07 March 1985
• Docket Number: No. 5856-III-5,5856-III-5
• Parties: John D. CHRISTIE and Merisue Christie, and the marital community composed thereof, Appellants, v. Mike MAXWELL and Bonnie Maxwell and John Doe Maxwell and the marital community composed thereof, Respondents.
• Court: Washington Court of Appeals

Page 40

40 Wn.App. 40

696 P.2d 1256

John D. CHRISTIE and Merisue Christie, and the marital community composed thereof, Appellants, v. Mike MAXWELL and Bonnie Maxwell and John Doe Maxwell and the marital community composed thereof, Respondents.

No. 5856-III-5.

Court of Appeals of Washington,

Division 3.

March 7, 1985.

Review Denied April 15, 1985.

Jerry T. Dyreson, Taylor & Dyreson, Spokane, for appellants.

Irving B. Paul, Kenneth Kato, Huppin, Ewing, Anderson & Hergert, Spokane, for respondents.

McINTURFF, Acting Chief Judge.

Merisue Christie appeals a ruling that her $8,000 judgment for loss of consortium be reduced 62.5 per cent, the amount of contributory negligence attributed to her husband. We reverse.

On September 25, 1980, John Christie was driving alone on a motorcycle which collided with a car driven by Mike Maxwell. Following a jury trial, the damages of $8,000 awarded to Mrs. Christie for loss of consortium were reduced by 62.5 percent, the percentage of negligence attributed to Mr. Christie.

Mrs. Christie has appealed from the reduction of her consortium award, arguing even though the action could be defined as derivative, RCW 4.22.020 ¹ bars imputing the negligence of one spouse to the other spouse. In tandem with the statutory grounds is our recognition of the development of individual rights, separate and apart from marital and/or familial relationships, seen in recent case law. The issue thus presented is whether Mrs. Christie's individual cause of action can be affected by her husband's percentage of negligence. ²

Mr. Maxwell contends Mrs. Christie has not suffered an injury, that her loss of consortium was derivative through her husband's injury, and that she could suffer no greater loss than he. Additionally, Mr. Maxwell argues the statute does not apply as the amended statute refers to claims arising after July 26, 1981, and the accident in this case occurred September 25, 1980.

With respect to his second argument, in Godfrey v. State, 84 Wn.2d 959, 530 P.2d 630 (1975), the court ruled RCW 4.22 applies to acts committed prior to its effective date but for which liability is established after that date. The statute has remained essentially the same since the only amendment added in 1981 referred to a wrongful death action. We hold the statute to be applicable.

We next address Mr. Maxwell's argument that the statute is inapplicable because Mrs. Christie's rights were derivative from her husband's. Although the husband's right to damages for loss of consortium of his injured wife was recognized early in Washington (Hawkins v. Front St. Cable Ry., 3 Wash. 592, 595, 28 P. 1021 (1892), Zolawenski v. Aberdeen, 72 Wash. 95, 97, 129 P. 1090 (1913)), the wife's corresponding right was not granted until 1980. Lundgren v. Whitney's, Inc., 94 Wash.2d 91, 614 P.2d 1272 (1980), established a wife's right to claim loss of consortium when her husband is injured. It overruled Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953), which denied loss of consortium damages to a wife whose husband had been injured in the course of his employment.

In Thompson v. Grange Ins. Ass'n, 34 Wash.App. 151, 161-62, 660 P.2d 307 (1983), cited by Mr. Maxwell, the court considered the wife's right to insurance coverage for loss of consortium due to injury to her husband, who was involved in an accident with an uninsured motorist. The court held that the wife was entitled to benefits, but because she did not suffer a separate bodily injury she was limited to the single limits of the policy and was not entitled to a separate claim. The court stated at 161-62, 660 P.2d 307:

We next observe the widely held rule that damages for loss of consortium are consequential, rather than direct, damages. They necessarily are dependent upon a bodily injury to the spouse who can no longer perform the spousal functions; it does not arise out of a bodily injury to the spouse suffering the loss.

(Citations omitted.) Based on the above, Mr. Maxwell concluded the action for loss of consortium was derivative and the damages must be reduced in proportion to the comparative negligence percentage.

However, we take recognition of a trend in the law to establish a separate legal identity for each individual, despite his or her familial or legal relationship to another. This trend is contrary to the rule announced in Ostheller v. Spokane & Inland Empire R.R., 107 Wash. 678, 685, 182 P. 630, 633 (1919), where the court reversed a damage award on behalf of a wife who was killed with her husband in an auto-train collision. The court imputed the contributory negligence of the husband to the wife because "[t]he community of husband and wife is, under our laws, a legal entity in which the individuality of both spouses is merged ..."

In Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972), the court ruled that the doctrine of interspousal immunity was no longer viable in light of modern reality. The trend continued with the adoption of the comparative negligence statute in 1973, amended in 1981 and codified at RCW 4.22.005 and 4.22.020. The meaning of the statute was explored in two law review articles shortly after the statute took effect in 1973. Smith & Campbell, Symposium: Recent Washington Legislation, Comparative Negligence, 49 Wash.L.Rev. 705 (1974), and Survey of Washington Law, Torts, 9 Gonz.L.Rev. 228, 232 (1973), arrive at the same conclusion with respect to the growth of individual identity. Particular note should be paid to footnote 6, p. 706 Wash.L.Rev.:

Sections 1 and 2, read together, suggest that the Legislature intended each spouse's recovery to be diminished in proportion to the percentage of negligence attributable to the negligently acting spouse: imputed negligence lessens but does not bar recovery. This is consonant with the mandate of Section 1 that "any damages allowed shall be diminished in proportion to the percentage of negligence attributable to the party recovering." But when read alone, the absolute prohibition of Section 2 that "the negligence of one marital spouse shall not be imputed to the other spouse ..." appears to prohibit considering the acting spouse's fault when comparing the negligence of the other; to do so would be [to] impute one spouse's negligence to the other. The first interpretation reduces Section 2 to a mere expression of an obvious inference from Section 1; the latter interpretation seems to express better the probable legislative intent.

In conjunction with the legislative change are several Washington cases which support our view of the integrity of the individual identity. In Lund v. Caple, 100 Wash.2d 739, 675 P.2d 226 (1984), the issue was whether the cause of action for loss of consortium could be maintained without joinder of the other spouse's underlying tort claims. Citing W. Prosser, Torts § 693(g) (1976), the court stated at 744:

Loss of consortium relates to the " 'loss of love, affection, care, services, companionship, society and consortium ...' ". Lundgren, at 94. As such, the alleged injuries relate solely to the "deprived" spouse and are distinguishable from the cause of action of the "impaired" spouse. The better rule is that a "deprived" spouse may sue for loss of consortium damages by either joining in a lawsuit with the spouse who sustained primary injuries or by bringing an independent suit.

We conclude the Supreme Court has characterized the action as separate and independent rather than derivative.

In accord is Grange Ins. Ass'n v. Hubbard, 35 Wash.App. 407, 667 P.2d 121 (1983), rev. denied, 100 Wash.2d 1023 (1983), where the insurer of a parent whose child was killed while knowingly riding in a stolen vehicle sought a declaratory judgment to contest the applicability of the parent's underinsured motorist coverage. The court stated at 413:

We hold the mother has an independent action of her own for the death of her minor son and that it is not derivative and does not depend upon his conduct which resulted in his uninsurability.

But see Zoda v. Mutual of Enumclaw Ins. Co., 38 Wash.App. 98, 684 P.2d 91 (1984). ³

The Supreme Court addressed the issue of individual identity in In re Marriage of Brown, 100 Wash.2d 729, 675 P.2d 1207 (1984), where the court held damages recovered in a personal injury action for physical injury, pain and suffering are to be considered the separate property of the injured spouse. Thus, any rationale that the contributorially negligent spouse would receive unjust enrichment through the other spouse's consortium claim, has been laid to rest.

Finally, the most recent case to expand the concept of individual identity is Ueland v. Pengo Hydra-Pull Corp., 103 Wash.2d 131, 136, 691 P.2d 190 (1984), where the court granted children of an injured parent the right to sue for loss of consortium:

When justice requires, this court does not hesitate to expand the common law and recognize a cause of action. In the present case, just as in Lundgren, to defer to the Legislature in this instance would be to abdicate our responsibility to reform the common law to meet the evolving standards of justice.

A review of other jurisdictions shows a divergence of opinion on the issue of reducing consortium damages. See 21 A.L.R.3d 469-75 (Supp.1984), and 25 A.L.R. 4th 118-144 (1983). Those that hold contributory negligence of a spouse bars recovery for loss of consortium base their ruling on three different rationales--the derivative nature of the action, imputed negligence and assignee taking subject to defenses against assignor. ⁴ However, those jurisdictions which recognize the independent nature of loss of consortium hold the award is not affected by the injured spouse's negligence.

Schwartz v. Milwaukee, 54 Wis.2d 286, 195 N.W.2d 480 (1972), construed the effect of a municipal statute limiting liability for damages in a tort action to $25,000. It held that the husband's claim for loss of consortium was a separate and distinct cause of...