Hackford v. Utah Power & Light Co.

• Citation: 740 P.2d 1281
• Decision Date: 09 June 1987
• Docket Number: No. 20208,20208
• Parties: Greg HACKFORD and Sherrie Hackford, Plaintiffs and Appellants, v. UTAH POWER & LIGHT CO., a Utah corporation, Western Petroleum, Inc., a Utah corporation, and Does I through X, Defendants and Respondents.
• Court: Utah Supreme Court

Page 1281

740 P.2d 1281

Greg HACKFORD and Sherrie Hackford, Plaintiffs and Appellants, v. UTAH POWER & LIGHT CO., a Utah corporation, Western

Petroleum, Inc., a Utah corporation, and Does I

through X, Defendants and Respondents.

No. 20208.

Supreme Court of Utah.

June 9, 1987.

C. Richard Henriksen, Jr., and David Michael Jorgensen, Salt Lake City, for plaintiffs and appellants.

Robert Gordon and David A. Westerby, Salt Lake City, for Utah Power & Light.

Gary D. Stott and Michael K. Mohrman, Salt Lake City, for Western Petroleum.

ZIMMERMAN, Justice:

Appellant Sherrie Hackford appeals from a Rule 12(b)(6) dismissal of her claim for loss of consortium. The issue presented on appeal is whether in Utah a wife may maintain an action for loss of consortium for an injury to her husband caused by a third party's alleged negligence. We adhere to our prior decisions and hold that neither spouse has a right to recover for the loss of consortium under Utah law. The judgment below is affirmed.

Sherrie Hackford alleges in her complaint that her husband, Greg Hackford, suffered an incapacitating injury when his head came in contact with a high-tension electrical power line maintained by defendant Utah Power & Light Company. She further alleges that as a result of her husband's severe and permanent injuries, she has lost the services, society, companionship, advice, and conjugal fellowship her husband otherwise would have been able to provide. Utah Power & Light Company filed a Rule 12(b)(6) motion to dismiss Hackford's claim. The trial court granted the motion to dismiss based on the authority of Ellis v. Hathaway, 27 Utah 2d 143, 493 P.2d 985 (1972), and Tjas v. Proctor, 591 P.2d 438 (Utah 1978). Those cases held that the common law cause of action for loss of consortium had been abolished in Utah by the Married Woman's Act of 1898.

On appeal, Hackford's principal argument is that Ellis and Tjas were wrongly decided, as was the earlier decision on the same issue by United States District Judge Sherman Christensen in Black v. United States, 263 F.Supp. 470 (D. Utah 1967). She contends that the common law right of a husband to sue for loss of consortium does exist in Utah and that it should be made equally available to wives.

As a preliminary matter, it is necessary to briefly review the Married Woman's Act and the Ellis, Tjas, and Black decisions. At common law, "a husband had a claim for loss of consortium against one who negligently injured his wife, though the wife had no corresponding right." Black v. United States, 263 F.Supp. at 471. In 1898, the common law of England was expressly adopted as the law that should govern in the Utah courts,

so far as it is not repugnant to, or in conflict with, the constitution or laws of the United States, or the constitution or the laws of this state and so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people hereof....

R.S.1898 ch. 1907, § 2488; Utah Code Ann. § 68-3-1 (1986). In 1898, the Utah legislature also passed the Married Woman's Act, which provides in pertinent part:

There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.

Utah Code Ann. § 30-2-4 (1984).

The effect of this statute on the common law right to sue for loss of consortium was not considered in a judicial opinion until 69 years later, when Judge Christensen wrote his lengthy opinion in Black. Judge Christensen was confronted with a complaint seeking damages for loss of consortium. The action was in federal court by reason of diversity jurisdiction, and the governing law was that of Utah. Judge Christensen thought that the Married Woman's Act could be read as abolishing the loss-of-consortium cause of action because a loss-of-consortium cause of action could be characterized as a husband's right of recovery "on account of personal injury or wrong to his wife," but he also conceded that the Act's intent was less than clear. He then made an extensive analysis of the law as it was apparently understood by the Utah courts and bar. He found that the loss-of-consortium cause of action was entirely unknown to the Utah courts and bar from the turn of the century until the 1960s. Given this fact and the wording of the Married Woman's Act, Judge Christensen concluded that the existence of the cause of action was sufficiently problematic that he would not permit such a claim to be presented in federal court.

The Utah Supreme Court did not consider the impact of the Married Woman's Act on the loss-of-consortium cause of action until five years after Black. In Ellis, the Court summarily disposed of a husband's claim for loss of consortium by stating that the Married Woman's Act had placed a husband and a wife on equal footing: neither had such a claim. In Tjas, the Court similarly disposed of a woman's cause of action for loss of consortium. Neither Ellis nor Tjas contains any detailed explication of the Act's rather uncertain language.

In asking that we hold that a loss-of-consortium cause of action does exist in Utah and that it extends to wives as well as husbands, Hackford argues that a careful reading of the Married Woman's Act in context shows that it had no impact on the loss-of-consortium cause of action. Specifically, she contends that the right to sue for loss of consortium is a right to sue for harm done not to the wife, but to the interest the husband has in his relationship with his wife. Therefore, the Married Woman's Act is best read as simply empowering a married woman to sue in her own name for physical injuries done to her. At common law, she had no such right; only a husband could sue for injuries suffered by his wife. This construction of the Married Woman's Act leaves the loss-of-consortium cause of action alive and well and available to vindicate a spouse's relational interest that is harmed when the other spouse is disabled from fulfilling his or her role in the relationship.

Hackford suggests that if we agree with her reading of the statute, we should not feel bound to follow our contrary decisions in Ellis and Tjas, but should consider the matter as though it were presented to us for the first time. As a basis for disregarding Ellis and Tjas, she argues that in those cases, this Court blindly followed the federal court decision in Black v. United States, 263 F.Supp. 470 (D. Utah 1967), which was wrongly decided. Therefore Ellis and Tjas do not represent an independent determination of the issue by this Court and ought not be accorded any real precedential weight.

Whatever merit there might be to Hackford's interpretation of the Married Woman's Act in the abstract, we do not think that Ellis and Tjas can be so easily ignored. First, despite Hackford's suggestion to the contrary, Black did not purport to settle Utah law on the question of whether the loss-of-consortium cause of action had been abolished by the passage of the Married Woman's Act. All Judge Christensen did was decide that in the absence of any decision from this Court on the point, his duty was to attempt to determine the law of Utah and follow it. Because he believed the matter to be in doubt, Judge Christensen decided that it was inappropriate for a federal court to declare the existence of the cause of action. He expressly stated that if the cause of action existed in Utah, that fact would have to be announced by the legislature or by this Court. This hardly amounts to a definitive statement of Utah law.

Second, Ellis and Tjas do not represent a blind following of Black. The Court in Ellis did not rely, uncritically or otherwise, on Black. Although Black was decided in 1967, five years before Ellis, Black was not mentioned in the briefs filed with this Court by the parties to the Ellis appeal, and it was not mentioned by the Court in the Ellis opinion. Therefore, Ellis must be considered to be an independent interpretation of the Married Woman's Act.

The briefs in Tjas did cite Black, and the opinion cited Black. However, Ellis was not cited to or by the Tjas Court. Tjas, then, amounted to a second and independent interpretation of the Married Woman's Act by this Court that conforms in result to that in Ellis. This conclusion is not negated by the fact that Black was cited by the Tjas Court. Given the fact that Judge Christensen did not purport to answer definitively the question of what the Utah law was on the loss-of-consortium issue, the mere fact that the Tjas Court cited Black does not mean that one can fairly imply, as does Hackford, that the Tjas Court did not reach or independently consider the arguments of the parties on the loss-of-consortium question.

What we have, then, are two relatively recent decisions of this Court interpreting an 1898 statute and holding that the loss-of-consortium cause of action does not exist in Utah. Should we accept Hackford's arguably "better" interpretation of the Married Woman's Act and overturn those decisions simply because neither represents a long-settled judicial interpretation of the statute and neither contains a particularly persuasive analysis of the issue? The answer must take into account the fact that we are not dealing with an interpretation of the common law, which this Court may alter to conform with evolving standards and changing times. Rather, we are dealing with an interpretation of a statute.

As a general proposition,a judicial interpretation of a statute becomes a gloss on that statute that is, in effect, part of the statute. Ordinarily, changes in statutes and their glosses are best left to the legislature. However, there are no absolutes in this area. As a practical matter, we can and do, on...