McKellar v. Clark Equipment Co.

• Decision Date: 23 February 1984
• Parties: Deena McKELLAR v. CLARK EQUIPMENT CO., et al. Susan CANWELL v. CENTRAL MAINE POWER COMPANY, et al.
• Court: Maine Supreme Court

Page 411

472 A.2d 411

Deena McKELLAR v. CLARK EQUIPMENT CO., et al.

Susan CANWELL v. CENTRAL MAINE POWER COMPANY, et al.

Supreme Judicial Court of Maine.

Argued Jan. 19, 1984.

Decided Feb. 23, 1984.

Strout, Payson, Pellicani, Cloutier, Hokkanen, Strong & Levine, Joseph M. Cloutier (orally), Esther R. Barnhart, Rockland, for plaintiff in No. KNO-83-318.

Rowe & Sanders, David M. Sanders (orally), Livermore Falls, for plaintiff in No. OXF-83-369.

Richardson, Tyler & Troubh, Harrison Richardson, Thomas E. Getchell, Portland, for Clark Equipment Co.

Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Michael D. Seitzinger (orally), Malcolm L. Lyons, Augusta, for Roderick and Young and Lime Products Corp.

Peter J. DeTroy, III, Portland, for Bacyrus.

Before ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ., and DUFRESNE, A.R.J.

WATHEN, Justice.

The two cases included in this consolidated Report to the Law Court pose the following questions. Is a wife's claim against her husband's employer and co-employee for loss of consortium resulting from a work-related injury to her husband, barred by the immunity and exclusivity provisions of the Maine Workers' Compensation Act, or alternatively, is it barred because it is derivative in nature? The Superior Court and the parties in each action have invoked this Court's authority pursuant to M.R.Civ.P. 72(b). ¹ We conclude that the issues "are of sufficient importance and doubt" to justify the report of the cases to this Court and we determine that suits against an employer are barred by the Workers' Compensation Act and that suits against a co-employee are barred if they arise subsequent to September 14, 1979.

The parties entered into agreed statements of fact with respect to each cause and insofar as relevant the facts are as follows: Each plaintiff is the wife of a workman who received serious personal injuries in a work related incident. Both husbands were employed by businesses which provided worker's compensation and both received benefits in accord with the act, thereby waiving any cause of action in their own right. Plaintiff McKellar seeks to recover for her loss of consortium resulting from a work related injury to her husband occurring on December 18, 1979. Plaintiff Canwell seeks a similar recovery for an injury occurring to her husband on April 13, 1977. In both complaints the employer and co-employees are named as defendants.

I

The extent of the immunity afforded to employers who provide worker's compensation is controlled by two sections of the act. The immunity provision, 39 M.R.S.A. § 4 (Supp.1982-83), states in relevant part:

Such employers shall be exempt from civil actions because of such injuries either at common law or under sections 141 to 148, under Title 14, sections 8101 to 8118 or under Title 18-A, section 2-804. ² (emphasis added)

The exclusivity section, 39 M.R.S.A. § 28 (1978), secures the employer's immunity with respect to the employee by providing that:

An employee of an employer, who shall have secured the payment of compensation as provided in sections 21 to 27 shall be held to have waived his right of action at common law to recover damages for the injuries sustained by him, and under the statutes specified in section 4. (emphasis added)

The principal argument advanced by the plaintiffs is that the statute is clear and unambiguous. They argue that section 28 applies only to the employee's cause of action and that the plain meaning of section 4 does not bar a wife's action for loss of consortium. We agree that section 28 does not bar plaintiffs' claims but we disagree with plaintiffs' interpretation of section 4. Plaintiffs point to the fact that this Court refused to extend a consortium claim to the wife in Potter v. Schafter, 161 Me. 340, 211 A.2d 891 (1965), with the result that in 1967 the legislature amended the Married Women's Act to provide that "[a] married woman may bring a civil action in her own name for loss of consortium of her husband." 19 M.R.S.A. § 167-A (1981). Accordingly plaintiffs argue that their claim is based on a statutory cause of action, as distinguished from a common law action, and therefore is not barred by the immunity provision of the act. Despite the superficial appeal of this elementary approach, it does not survive careful scrutiny.

The statutory phrase "civil actions at common law" carries its own latent and inherent ambiguity. Black's Law Dictionary defines a common law action simply as "an action governed by common law, rather than statutory, equitable, or civil law." Such a definition is less than precise because there are few, if any, common law actions which have not been modified, limited, expanded or altered by legislative act.

Even the traditional common law action for negligence is, at this point in our history, a curious amalgam of decisional law and statute. The mere introduction of a statutory change, however, does not convert an area of common law liability into a statutory cause of action any more than a statutory cause of action would be converted by the fact of subsequent judicial interpretation. Further, it has long been recognized that the common law of Maine includes legislative amendments of common law doctrines as well as early English statutes and certain acts of the Massachusetts' legislature. See, e.g., Davis v. Scavone, 149 Me. 189, 194, 100 A.2d 425, 428 (1953); Bean v. Central Maine Power Company, 133 Me. 9, 12, 173 A. 498, 499 (1934); Sacknoff v. Sacknoff, 131 Me. 280, 285, 161 A. 669, 671 (1932); Ahern v. McGlinchy, 112 Me. 58, 60, 90 A. 709, 710 (1914); Conant v. Jordan, 107 Me. 227, 230, 77 A. 938, 939 (1910). In Davis v. Scavone we quoted with approval the following definition offered by the Massachusetts court:

So much therefore of the common law of England as our ancestors brought with them, and of the statutes then in force, amending or altering it; such of the more recent statutes as have been since adopted in practice; and the ancient usages aforesaid, may be considered as forming the body of the common law ... which has submitted to some alterations by the acts of the provincial and state legislatures, and by the provisions of our constitution.

149 Me. at 194, 100 A.2d at 428. The designation of a concept of liability, or an element of recovery, as a common law action refers predominantly to the historical development of the concept and does not suggest the total absence of any ameliorative changes which are legislative in origin. ³

Consortium is an element of recovery under the common law of Maine and plaintiffs concede that a husband's action for consortium arising from an industrial injury to his wife would be barred by the language of section 4. This Court declined to extend the doctrine of consortium to include the claim of a wife in Potter v. Schafter but in doing so we expressly acknowledged that as a common law court we had the power to accomplish that result. 161 Me. at 341, 211 A.2d at 892. We declined to exercise our authority on the theory that the diversity of the interests affected merited legislative consideration. Id. at 342-43, 211 A.2d at 892-93. The legislature promptly responded by enacting 19 M.R.S.A. § 167-A. At the present stage of the development of the law in the context of a claim for consortium, the meaning of the phrase "common law action" is obscure. In interpreting section 4, therefore, we must look elsewhere for legislative intent.

Plaintiffs disregard Roberts v. American Chain and Cable Co., 259 A.2d 43 (Me.1969) in which we defined the broad scope of the immunity conferred by section 4 of the Workers' Compensation Act. In Roberts the employer's assertion of immunity was upheld as a defense to a third-party action for contribution brought by a manufacturer who had been sued by an employee for injuries caused by the failure of a chain used in the course of employment. We resolved the immunity issue by reviewing legislative intendment in enacting the comprehensive scheme for worker's compensation and by giving effect to the underlying policy of providing certainty of remedy to the injured employee and absolute but limited and determinate liability for the employer. The societal compact achieved by substituting absolute liability for the employer's common law liability led to the following observation:

Generally ... [this Court] has looked upon this legislation as a transfer of the burdens resulting from industrial accidents, regardless of who may be at fault, from the individual to the industry and an ultimate distribution of such burdens upon society as a whole, by compelling the industry, in which the accident occurs, through the employer, to pay compensation benefits based on the average weekly wages of the injured employee in substitution for the loss of wages occasioned by the accident.... Our Court, on the other hand, has maintained that employers have rights and they also are entitled to rely on the certainty of the compensation to be paid and the amount of the services to be rendered. Perversion of the law, either to benefit the employee or protect the employer, has the tendency only to bring the law into contempt.... The intent of the statute was not to burden the industries of the State beyond the scope of the act as defined by the lawmakers.

Id. at 48-49. Although the facts in Roberts are readily distinguishable, the underlying rationale is not confined to that single case and is not easily rejected.

The question now before us is whether the legislature intended to restructure the balance of the quid pro quo achieved in 1915 in the Workers' Compensation Act by its 1967 enactment of the provisions of 19 M.R.S.A. § 167-A. We are compelled to conclude that it did not. ⁴ The enactment of a statute of general application, extending the common law right to recover lost consortium to married women, neither expressly nor implicitly evidences any intent on the part of the legislature to override the specific provision...