Cox v. Haworth

• Decision Date: 01 December 1981
• Docket Number: No. 99,99
• Citation: 284 S.E.2d 322,304 N.C. 571
• Court: North Carolina Supreme Court
• Parties: Avis Helen COX v. Chester C. HAWORTH, Jr., M. D. and High Point Memorial Hospital, Inc.

Page 322

284 S.E.2d 322

304 N.C. 571

Avis Helen COX v. Chester C. HAWORTH, Jr., M. D. and High Point Memorial Hospital, Inc.

No. 99.

Supreme Court of North Carolina.

Dec. 1, 1981.

Barefoot & White by Spencer W. White, Greensboro, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Jodee Sparkman King, Raleigh, for defendant-appellee Chester C. Haworth, Jr., M. D.

CARLTON, Justice.

I.

Plaintiff filed suit on 15 July 1980 alleging that defendants had negligently performed a myelogram procedure on her husband, Alfred W. Cox, on or about 14 July 1978 and had performed the myelogram without his informed consent. She alleged that as a result of the myelogram procedure her husband developed spinal cord arachnoiditis that left him permanently disabled and sexually impotent. Because of his disability she has suffered the loss of her husband's general companionship and conjugal society and affection and has also suffered the loss of sexual gratification in her marriage. She prayed for damages "in excess of $10,000." In her complaint plaintiff requested that her claims be joined with the existing action filed by her husband against the same doctor on 20 May 1980 in Guilford County (number 80CvS3503) for disposition.

Defendant Haworth moved to dismiss plaintiff's complaint for failure to state a claim for which relief may be granted because at the time of the alleged acts of negligence a claim for loss of consortium due to the negligence of third parties was not recognized under the laws of this state.

The motion to dismiss was heard by Judge Collier at the 16 March 1981 Session of Superior Court, Guilford County. He granted defendant Haworth's motion and entered an order dismissing plaintiff's action as to defendant Haworth.

Plaintiff gave immediate notice of appeal, and the appeal was filed and docketed in the Court of Appeals on 11 May 1981. Prior to determination of the appeal by that court, however, plaintiff filed a petition requesting that this Court certify the case for discretionary review prior to the determination of the Court of Appeals. We allowed plaintiff's petition on 17 August 1981.

II.

On 3 June 1980, this Court announced its decision in Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980), and held that "a spouse may maintain a cause of action for loss of consortium due to the negligent actions of third parties so long as that action for loss of consortium is joined with any suit the other spouse may have instituted to recover for his or her personal injuries." Id. at 304, 266 S.E.2d at 823. In so holding, this Court overruled longstanding case law which held that no action for loss of consortium exists. Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611 (1945) (husband has no right of action for loss of wife's consortium); Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307 (1925) (wife has no right of action for loss of husband's consortium). Not before us in Nicholson was the question whether and to what extent the new rule applied to claims arising prior to the decision. We must now address this question.

A.

Under long-established North Carolina law, a decision of a court of supreme jurisdiction overruling a former decision is, as a general rule, retrospective in its operation. Mason v. A. E. Nelson Cotton Co., 148 N.C. 492, 62 S.E. 625 (1908); MacDonald v. University of North Carolina, 299 N.C. 457, 263 S.E.2d 578 (1980). This rule is based on the so-called "Blackstonian Doctrine" of judicial decision-making: courts merely discover and announce law; they do not create it; and the act of overruling is a confession that the prior ruling was erroneous and was never the law. People ex rel. Rice v. Graves, 242 App.Div. 128, 273 N.Y.S. 582 (1934), aff'd, 270 N.Y. 498, 200 N.E. 288, cert. denied, 298 U.S. 683, 56 S.Ct. 953, 80 L.Ed. 1403 (1936); Fitzgerald v. Meissner & Hicks, Inc., 38 Wis.2d 571, 157 N.W.2d 595 (1968); see Annot., 10 A.L.R.3d 1371, § 4 (1966); Annot., 85 A.L.R. 262 (1933). As stated by this Court in Mason, "the effect is not that the former decision is bad law, but that it never was the law." 148 N.C. at 510, 62 S.E. at 632. Under more recent decisions, however, courts have recognized that the question of retroactivity is one of judicial policy, and should be determined by a consideration of such factors as reliance on the prior decision, the degree to which the purpose behind the new decision can be achieved solely through prospective application, and the effect of retroactive application on the administration of justice. See Annot., 10 A.L.R.3d 1371, at § 2. This Court has implicitly recognized that the decision on retroactivity involves a balancing of countervailing interests. E. g., MacDonald v. University of North Carolina, 299 N.C. 457, 263 S.E.2d 578 (decision abolishing sovereign tort immunity applied prospectively because of vested contract rights); Rabon v. Rowan Memorial Hospital, Inc., 269 N.C. 1, 152 S.E.2d 485 (1967) (decision abolishing charitable immunity applied prospectively because of justified reliance on prior case law); State v. Bell, 136 N.C. 674, 49 S.E. 163 (1904) (contractual rights acquired by virtue of the prior construction will not be disturbed by a subsequent overruling decision); see Wilkinson v. Wallace, 192 N.C. 156, 134 S.E. 401 (1926) (when contracts have been made and rights acquired in reliance on a prior decision, the contracts will not be invalidated nor vested rights impaired by a subsequent decision).

By overruling a prior decision, a court implicitly recognizes that the old rule has lost its viability and should no longer be the law. Unless compelling reasons, such as those noted above from our prior cases, exist for limiting the application of the new rule to future cases, we think that the overruling decision should be given retrospective effect.

Thus, we begin with the presumption of retroactivity and will apply the rule in Nicholson retroactively unless there exists a compelling reason for not doing so. Defendant contends there are three compelling reasons to apply Nicholson prospectively only: (1) because he justifiably relied on the prior case law, (2) because the purpose behind the Nicholson decision can be fully achieved through prospective application, and (3) because retroactive application of Nicholson would be unduly burdensome on the administration of justice.

Defendant first contends that in reliance on our decisions in Hinnant and Helmstetler he failed to procure insurance to protect against the additional risk of liability for loss of consortium. We find this argument unpersuasive. Justifiable failure to procure insurance has been accepted by this Court as a reason to limit the effect of an overruling decision only when the decision abolishes a common law immunity from tort liability. Rabon v. Rowan Memorial Hospital, Inc., 269 N.C. 1, 152 S.E.2d 485. Defendant cites to us cases from other jurisdictions accepting such a justifiable reliance argument, but these decisions, too, deal with the abolition of immunity: Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959), cert. denied, 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960) (abolition of tort immunity of school districts); Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960) (abolition of charitable immunity); Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962) (abolition of school districts' tort immunity). When an immunity is abolished, the defendant suddenly becomes liable for all torts; when a new claim is recognized, the extent of liability increases. The difference between the fact of liability and the extent of liability is an important...