Gordon v. Gordon

• Decision Date: 17 May 1978
• Docket Number: No. 7869,7869
• Citation: 118 N.H. 356,387 A.2d 339
• Parties: Lois GORDON v. Robert GORDON.
• Court: New Hampshire Supreme Court

Page 339

387 A.2d 339

118 N.H. 356

Lois GORDON v. Robert GORDON.

No. 7869.

Supreme Court of New Hampshire.

May 17, 1978.

Hamilton R. Krans, Jr., Dover, by brief and orally for plaintiff.

Fisher, Parsons, Moran & Temple, Dover (Robert H. Temple, Dover, orally), for defendant.

GOODE, Justice (By special assignment pursuant to RSA 490:3).

This case raises familiar conflicts of law questions arising from interspousal suits. The plaintiff, Lois Gordon, filed suit on November 1, 1976, against her husband, Robert, for injuries she sustained in a car accident on Route 95 in Hampton, New Hampshire on July 2, 1971. At the time of the accident both parties were married domiciliaries and residents of Chicopee, Massachusetts. Robert Gordon's connection with the Air Force required frequent relocations and in the interim between the accident and institution of this suit both parties lived in numerous other jurisdictions including some time in New Hampshire. Prior to suit the parties moved to North Berwick, Maine, and have been domiciled there at all relevant times since.

Defendant's motion to dismiss on the grounds that this suit was barred by Maine's interspousal immunity rule and, in the alternative, the Massachusetts two-year statute of limitations, was granted. Plaintiff's exceptions to this ruling were reserved and transferred by Mullavey, J. We reverse.

New Hampshire, site of the accident and interim domicile of the parties, has long allowed interspousal suits. Morin v. Letourneau, 102 N.H. 309, 156 A.2d 131 (1959); Doiron v. Doiron, 109 N.H. 1, 241 A.2d 372 (1968); Taylor v. Bullock, 111 N.H. 214, 279 A.2d 585 (1971); RSA 460:2. Massachusetts, domicile of the parties at the time of the accident, followed the rule of interspousal immunity at that time but has recently abandoned the rule. Lewis v. Lewis, 351 N.E.2d 526 (Mass.1976). Lewis was given retroactive effect in Pevoski v. Pevoski, 358 N.E.2d 416 (Mass.1976).

As between Massachusetts and New Hampshire, no conflict exists in permitting interspousal tort actions, for each jurisdiction would arrive at the same result by application of the same rule, R. Leflar, American Conflicts Law, 237 (1968); 55 Cal.L.Rev. 74, 106 (1967), and as between these two jurisdictions we are free to follow our rule allowing a wife to sue her husband.

Maine, the domicile of the parties at the time of the suit, adheres, reluctantly to interspousal immunity. Moulton v. Moulton, 309 A.2d 224 (Me.1973); Bedell v. Reagan, 159 Me. 292, 192 A.2d 24 (1963); Abbott v. Abbott, 67 Me. 304 (1877). In Bedell the court allowed a defendant tortfeasor contribution against a husband for damages awarded to the husband's wife. That decision criticized the metaphysical concept of unity of husband and wife and held that protection of domestic harmony was not a sufficient policy consideration to override the defendant's right to contribution. In Roberts v. American Chain & Cable Co., 259 A.2d 43 (Me.1969), Bedell was viewed as dispelling a "vestigial remnant of state policy" that was more theory than fact, and in Moulton the court allowed a wife to sue her husband for injuries sustained prior to their marriage. The court completely abandoned the unity concept and criticized the policies of avoidance of collusive lawsuits and preservation of domestic harmony. Nonetheless, the decision in Abbott has not been overruled and it continues to be the law in Maine, presenting a true conflict.

Choice of law governing interspousal immunity is controlled by the relevant considerations summarized in Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966) and Doiron v. Doiron, supra. They are (1) predictability of results; (2) maintenance of reasonable orderliness and good relationships among the States in our federal system; (3) simplification of the judicial task; (4) advancement by the court of its own State's governmental interests rather than those of other States; (5) the court's preference for what it regards as the sounder rule of law as between competing ones. Doiron v. Doiron, supra, 109 N.H. at 3, 241 A.2d at 373.

Predictability of results is of limited concern in automobile accident cases because they are not planned occurrences. Clark v. Clark, supra. In Johnson v. Johnson, 107 N.H. 30, 216 A.2d 781 (1966), we recognized that predictability of insurance risks militated in favor of applying the Massachusetts immunity rule to a case arising from a tort in New Hampshire between a Massachusetts husband and wife. That consideration is not relevant here. The risk insured against in this case was never dependent in any way upon application of the Maine rule, for the parties have only recently moved there, some six years after the accident.

We have frequently voiced our preference for the rule allowing interspousal suits. Doiron v. Doiron supra; Taylor v. Bullock, supra. The concept of unity of husband and wife is archaic and in disrepute, even in Maine. Moulton v. Moulton, supra; Bedell v. Reagan, supra. We have rejected the argument that paternalistic protection of domestic harmony justifies leaving tortious injuries unredressed. Doiron v. Doiron, supra, 109 N.H. at 4, 241 A.2d at 374; Taylor v. Bullock, supra, 111 N.H. at 217, 279 A.2d at 597. Maine has echoed similar sentiments in both Moulton v. Moulton and Bedell v. Reagan, supra. The fear of collusive lawsuits against the husband's insurer has also been rejected as a basis for denying the wife's recovery, Taylor v. Bullock, supra, 111 N.H. at 217, 279 A.2d at 597, and Maine has adopted a similar position: "A generalized policy concern to prevent fraud or collusion, as well as a paternalistic interest to protect the citizenry against itself through the elimination of temptations for fraud or collusion, are, in our view, insufficiently weighty to render tolerable the basic unfairness and inequity inhering in the denial of a remedy to one who has suffered a wrong at the hands of another." Moulton v. Moulton, supra, 309 A.2d at 229.

We affirm our position that the New Hampshire rule is the better one and are bolstered in this conclusion by our observation that Maine's adherence to the rule stems more from abidance with the principle of stare decisis than belief in the continuing soundness of the rule.

This case is factually similar to Doiron in the analysis of the interests at stake in making a choice of law. In Doiron we ruled that domiciliaries of New Hampshire could sue in New Hampshire for injuries sustained here even though they had become Massachusetts domiciliaries at the time of the suit. Since a cause of action accrued under New Hampshire law to a New Hampshire domiciliary, we would not "under the guise of promoting federal felicity, we cannot subscribe to a view that the law of the domicile of the parties when an action is instituted should bar a suit by a wife against her husband instituted in New Hampshire to enforce a right of action which arose here from conduct of one spouse toward the other when they were domiciled in this state." Doiron v. Doiron, supra, 109 N.H. at 4, 241 A.2d at 374. The only difference between Doiron and the instant case is that here, at the time of the accident, the parties were domiciled in Massachusetts. That distinction is of no moment, however, because Massachusetts now, by retroactive decision, allows interspousal suits. Therefore, the forum's interest in providing...