Cook v. Hanover Ins. Co.

• Citation: 592 N.E.2d 773,32 Mass.App.Ct. 555
• Decision Date: 29 June 1992
• Docket Number: No. 90-P-977,90-P-977
• Parties: Sharon L. COOK, administratrix, 1 et al. 2 v. The HANOVER INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

Page 773

592 N.E.2d 773

32 Mass.App.Ct. 555

Sharon L. COOK, administratrix, ¹ et al.² v. The HANOVER INSURANCE COMPANY.

No. 90-P-977.

Appeals Court of Massachusetts Essex.

Argued Jan. 13, 1992.

Decided May 22, 1992.

Further Appellate Review Denied

June 29, 1992.

William H. Sheehan, III, Peabody, for plaintiffs.

John D. Boyle, Boston, for defendant.

Before ARMSTRONG, SMITH and GREENBERG, JJ.

GREENBERG, Justice.

Antonio Magazzu died on January 19, 1987, eight days after he lost control of the automobile he was driving on Soldiers Field Road in the Allston section of Boston and it plunged into the Charles River. It is uncontroverted that Antonio's negligent operation of the vehicle was entirely responsible for the fatal accident. ³ The deceased's wife, Emily F. Magazzu, brought this action ⁴ in the Superior Court and sought a judgment declaring that her claim for the loss of her husband's consortium is a legally cognizable cause of action. ⁵ After the complaint was amended to include, as a party plaintiff, the administratrix de bonis non of Antonio's estate, Sharon L. Cook, a judge of the Superior Court allowed the defendant's motion for summary judgment. The question before us is whether the wrongful death statute, G.L. c. 229, § 2, permits recovery for loss of consortium from a deceased spouse's insurer when the death was caused solely by the deceased's negligence, a matter of first impression. We hold that it does not and therefore we affirm.

The relevant portion of that statute reads: "A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted ... shall be liable in damages ... including [the value of the deceased's] ... society, companionship, [and] comfort ..." (emphasis added). G.L. c. 229, § 2, as appearing in St. 1973, c. 699, § 1. While it is undisputed that Antonio would have been precluded from recovering in tort had he survived, the plaintiffs argue that the statutory language, "under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted," applies only when the death is caused by wilful, wanton or reckless conduct and does not apply here, where the death was caused by merely negligent conduct. By negative implication, they assert, the statute allows the estate, on behalf of the surviving spouse, to recover from any negligent person responsible for the deceased's death even though the deceased, had he survived, could not have recovered.

The plaintiffs also contend that their construction of the statute is supported by the common law, and that their cause of action is the logical extension of the Supreme Judicial Court's decisions in Lewis v. Lewis, 370 Mass. 619, 629-630, 351 N.E.2d 526 (1976) (abolishing the common law rule of interspousal immunity) and Feltch v. General Rental Co., 383 Mass. 603, 606-610, 421 N.E.2d 67 (1981) (holding that a spouse's loss of consortium claim is an independent claim and therefore should not be reduced by the degree of the injured spouse's negligence). We subsequently held that Feltch v. General Rental Co., supra, permitted recovery for a spouse's loss of consortium, even though the injured spouse's negligence claim was barred under the strictures of the comparative negligence statute. See Morgan v. Lalumiere, 22 Mass.App.Ct. 262, 270-272, 493 N.E.2d 206 (1986). The plaintiffs assert that the absence of a negligent third party in this case is a meaningless factual distinction from Feltch v. General Rental Co., supra, and that the holding in that case compels the conclusion that Antonio's wholly negligent conduct is not a bar to a recovery for his wife's loss of consortium.

We start with the proposition that the present action is not the type of claim contemplated by the court in Lewis v. Lewis, supra. While the plaintiffs correctly point out that Lewis v. Lewis, supra, itself did not involve a claim against a negligent third party, the underlying action there was for personal injuries, not loss of consortium. Moreover, we are reminded that while Lewis v. Lewis, supra, represented a fundamental change in tort law principles, the Supreme Judicial Court carefully limited its holding to claims arising out of motor vehicle accidents against negligent third parties and left the scope of the rule to be determined in future cases. Lewis v. Lewis, supra, 370 Mass. at 630, 351 N.E.2d 526. See also Brown v. Brown, 381 Mass. 231, 409 N.E.2d 717 (1980). Neither Morgan v. Lalumiere, supra, nor Feltch v. General Rental Co., supra, involved loss of consortium claims against spouses.

Interspousal tort immunity in the context of loss of consortium, moreover, has not been abrogated in Massachusetts. See Feltch v. General Rental Co., supra, 383 Mass. at 609, 421 N.E.2d 67 ("in a suit for loss of consortium, the injured spouse may not be joined as a defendant"); Mouradian v. General Elec. Co., 23 Mass.App.Ct. 538, 544, 503 N.E.2d 1318 (1987). See also Brown v. Brown, supra, 381 Mass. at 233, 409 N.E.2d 717 (immunity should be maintained if tortious conduct "trench[es] remotely upon the privileged or consensual aspects of married life" [citation omitted] ).

We are not aware of a case in any jurisdiction which has allowed one spouse to sue the other for loss of consortium. Since "[a spouse's] interest in consortium is a right to such services as [the injured spouse] voluntarily provides ... [an inujured spouse] cannot be held liable for ... negligently ... denying [the other spouse] consortium (emphasis added)." Plain v. Plain, 307 Minn. 399, 401-402, 240 N.W.2d 330 (1976). Accord McIntosh v. Barr, 397 N.W.2d 516, 517 (Iowa 1986) ("We believe there can be no independent claim for loss of consortium by one spouse against the other, because no actionable duty is breached"). Compare and contrast Lantis v. Condon, 95 Cal.App.3d 152, 159, 157 Cal.Rptr. 22 (1979) (reversing judge's reduction of jury award in consortium case by percentage amount of spouse's contributory negligence) with Feltch v. General Rental Co., supra, 383 Mass. at 609, 421 N.E.2d 67 (dismissing counterclaim of third party liable for loss of consortium against negligent injured spouse).

One commentator, who in all likelihood was inspired by what we have called "the potential for an unfair result in an extreme case[,]" Morgan v. Lalumiere, supra, 22 Mass.App.Ct. at 272, 493 N.E.2d 206, under the Feltch v. General Rental Co., holding, has argued for the abrogation of interspousal tort immunity in the loss of consortium context. See Note, Loss of Consortium, Contributory Negligence, and Contribution: An Old Problem and a New Solution 24 B.C.L.Rev. 403, 432-433 (1983). Abrogation would serve to correct the unfairness of forcing the minimally negligent third party to pay the entire loss of consortium judgment and would allow the third party to pursue contribution from the negligent injured spouse. Recognizing that, in theory, abrogation would permit one to sue a spouse for loss of consortium, this same commentator has nevertheless concluded that "[t]here must be a limit imposed ... where the consortium spouse attempts to sue the injured spouse who was one hundred percent negligent." Id. at 433. See also Diaz v. Eli Lilly & Co., 364 Mass. 153, 167-168, 302 N.E.2d 555 (1973) ("a [spouse's] claim for loss of consortium ... arise[s] from personal injury of the other spouse caused by negligence of a third person"). We conclude that Massachusetts law does not recognize the plaintiffs' alleged cause of action.

Our conclusion is not altered because the language of G.L. c. 229, § 2, appears to stand in conflict. We agree with the plaintiffs that, according to traditional principles of statutory interpretation, the proviso of subsection (2) ⁶ modifies only the last...