Miller v. Fallon County

• Decision Date: 05 August 1986
• Docket Number: No. 85-350,85-350
• Citation: 43 St.Rep. 1185,222 Mont. 214,721 P.2d 342
• Parties: Linda J. MILLER, Plaintiff and Appellant, v. FALLON COUNTY, Cecil P. Miller, Davis Transport, Inc., and Prefab Transit Co., Defendants and Respondents.
• Court: Montana Supreme Court

Page 342

721 P.2d 342

222 Mont. 214

Linda J. MILLER, Plaintiff and Appellant, v. FALLON COUNTY, Cecil P. Miller, Davis Transport, Inc., and Prefab Transit Co., Defendants and Respondents.

No. 85-350.

Supreme Court of Montana.

Submitted March 14, 1986.

Decided June 26, 1986.

Rehearing Denied Aug. 5, 1986.

Lucas & Monaghan, A. Lance Tonn, argued, Miles City, for plaintiff and appellant.

Anderson, Edwards & Molloy, Donald W. Molloy, argued, Billings, for Miller.

Anderson, Brown Law Firm, Steven J. Harman, argued, Billings, for Davis Transport.

Moulton Law Firm, Sidney R. Thomas, argued, Billings, for Prefab transit.

Denzil R. Young, Baker, Calvin J. Stacey, Billings, for defendants and respondents.

Rossbach & Whiston, Missoula, for amicus curiae Rosina Woodhouse.

Sandall, Cavan, Smith, Howard & Grubbs, W. Corbin Howard, Billings, for amicus curiae Audrey D. Noone.

MORRISON, Justice.

Linda J. Miller appeals judgment of the Sixteenth Judicial District Court, County of Fallon, which granted summary judgment to defendants, Cecil P. Miller (Miller), Davis Transport, Inc. (Davis), and PreFab Transit Co. (PreFab). We reverse.

Linda Miller (appellant) was injured in a one vehicle truck accident. Her husband, Cecil Miller, an independent truck driver, was the driver of the truck. Miller had entered into a contract for services with PreFab on August 3, 1982. As part of that contract, Miller delivered a load of mobile home frames from Elkhart, Indiana, to Belgrade, Montana. The delivery was made November 2, 1982.

Appellant accompanied her husband on the trip. They stayed in Belgrade, Montana, the night of November 2. The next day, Miller, on behalf of PreFab, entered into a contract with Davis whereby Miller agreed to haul a load of lumber from Townsend, Montana, to Minnesota for Davis. The accident occurred November 3, 1982, while the Millers were traveling to Minnesota. Appellant was thrown from the truck and is now a paraplegic.

She filed an action March 22, 1984, against Fallon County, alleging negligent design of a roadway; Miller, alleging negligent, careless and unlawful operation of a vehicle; Davis, alleging vicarious liability for Miller's negligence; and PreFab, alleging vicarious liability for Miller's negligence. The vicarious liability actions are premised on allegations that Miller was the employee of Davis and/or PreFab at the time of the accident.

Miller, Davis and PreFab filed motions for summary judgment on the basis of interspousal tort immunity. PreFab additionally sought summary judgment on the basis of the following pre-injury release form signed by appellant on September 12, 1981:

Application to travel with my husband.

* * *

* * *

Furthermore, in the event of an accident or other manner wherein I may lose my life, be injured, or in any way contribute to the injury or loss of life to another, I hereby waive any rights whatsoever against Pre-Fab Transit Co. for what otherwise might be its liability and agree that Pre-Fab Transit Co., its agents, employees and contractors are to be held harmless in all respects by virtue of my being a passenger in said vehicle.

The motions were briefed and argued. Thereafter, the District Court granted the motions for summary judgment on the basis of interspousal tort immunity. The pre-injury release was also held to support PreFab's motion. Following Rule 54(b), M.R.Civ.P., certification, a notice of appeal was timely filed. The following issues are raised:

1. Whether the District Court committed reversible error in granting summary judgment in favor of Miller on the basis of the defense of interspousal tort immunity?

2. Whether the District Court committed reversible error in granting summary judgment in favor of Davis and PreFab on the basis of its finding that the defense of interspousal tort immunity is available to a spouse's employer?

3. Whether the District Court committed reversible error by granting summary judgment to PreFab on the basis of a waiver given to PreFab by appellant.

THE DOCTRINE OF INTERSPOUSAL TORT IMMUNITY

The doctrine of interspousal tort immunity derives from the common law. When Montana became a state, it adopted the common law of England as "the rule of decision in all the courts of this state." Section 1-1-109, MCA. The doctrine of interspousal tort immunity is a creature of court decision and subject to change by the courts. Fernandez v. Romo (Ariz.1982), 646 P.2d 878, 880. Brooks v. Robinson (Ind.1972), 284 N.E.2d 794, 797.

This Court has previously refused to abolish the doctrine of interspousal tort immunity. Conley v. Conley (1932), 92 Mont. 425, 15 P.2d 922; Kelly v. Williams (1933), 94 Mont. 19, 21 P.2d 58; State ex rel. Angvall v. District Court (1968), 151 Mont. 483, 444 P.2d 370; and State Farm Mutual Automobile Ins. Co. v. Leary (1975), 168 Mont. 482, 544 P.2d 444. However, judicial modification of the common law is sometimes required to prevent great injustice or to insure that the common law is consonant with the changing needs of society. Digby v. Digby (R.I.1978), 388 A.2d 1. In fact, "[t]he strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs." Brooks v. Robinson, 284 N.E.2d at 797.

The doctrine of stare decisis is not an impenetrable bar to conforming common law to the needs of a dynamic and evolving culture:

This Court recognizes that courts may have previously fashioned a rule of immunity from wrongdoing, having adopted a posture at an earlier date in response to what appeared to be desirable then as a matter of policy; yet when it later appears to be unsound within a given context, especially when the reasons upon which the immunity is based no longer exist, it remains within the domain of the judiciary to reject the applicability of such a rule.

Luna v. Clayton (Tenn.1983), 655 S.W.2d 893, 897.

The historical reasons for retention of immunity are: 1) unity--the common law concept that husband and wife are one person; 2) family harmony; and 3) the possibility of fraud and collusion. These reasons no longer dictate such a harsh and absolute result. See Tobias, Interspousal Tort Immunity in Montana, 47 Mont.L.Rev. 23 (1986).

The concept of unity originated at a time when a woman relinquished her rights as an individual when she married.

The "supposed unity" of husband and wife, which serves as the traditional basis of interspousal disability, is not a reference to the common nature or loving oneness achieved in a marriage of two free individuals. Rather, this traditional premise had reference to a situation, coming on from antiquity, in which a woman's marriage for most purposes rendered her a chattel of her husband.

Freehe v. Freehe (1972), 81 Wash.2d 183, 500 P.2d 771, 773. The concept of unity is outmoded and has been significantly eroded by both statutory and case law.

Family harmony will not be destroyed by the filing of a lawsuit. If a family is sound, it will most likely survive the legal action. A weak family bond cannot be strengthened by our judicial system.

[I]t is difficult to perceive how any law barring access to the courts for personal injuries will promote harmony. If this were a valid sociological consideration, the Legislature could orchestrate even greater harmony by abolishing the statute giving the right to divorce.

Coffindaffer v. Coffindaffer (1978), 161 W.Va. 567, 244 S.E.2d 338, 342.

The destruction of family harmony is even less of a concern because of insurance. A spouse is normally not seeking redress against the other spouse, but rather spouse's insurance carrier. See Fernandez, 646 P.2d at 881-882. In Transamerica Insurance Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820, 40 St.Rep. 12, we recognized the effect of insurance on suits against parents by their minor children. The same rationale applies here. "The existence of liability insurance prevents family discord and depletion of family assets in automobile negligence cases ... (citations omitted)." Royle, 656 P.2d at 823, 40 St.Rep. at 16.

Our decision in Royle, 656 P.2d at 823-824, 40 St.Rep. at 16, is also instructive concerning the problems of fraud and collusion. The possibility of fraud and collusion exists throughout all litigation. One of the many functions of a judge or jury is to determine the facts of the case, including the potentially collusive aspect of the parent-child or interspousal relationship. Thus, the possibility of fraud or collusion is not sufficient reason to warrant continued reliance on interspousal tort immunity. The defense is abolished in Montana. Previous decisions to the contrary, cited above, are overruled.

The abolition of the doctrine of interspousal tort immunity renders unnecessary consideration of whether the doctrine is available to the allegedly-negligent spouse's employer.

THE EFFECTS OF THE PRE-RELEASE FORM

More than a year prior to the accident, appellant requested and received permission from PreFab to ride with her husband on interstate trips. In return, PreFab insisted that she sign a document entitled "Application to Travel with My Husband" which states in pertinent part:

Furthermore in the event of an accident or other manner wherein I may lose my life, be injured, or in any way contribute to the injury or loss of life to another, I hereby waive any rights whatsoever against Pre-Fab Transit Co. for what otherwise might be its liability and agree that Pre-Fab Transit Co., its agents, employees and contractors are to be held harmless in all respects by virtue of my being a passenger in said vehicle. (Emphasis supplied.)

The trial judge held that this waiver absolves PreFab from any liability with respect to appellant. On appeal, appellant contends the waiver is unenforceable because it is against public policy.

The waiver constitutes a private contract between private individuals. Generally, private parties are allowed to contract away liability for negligent acts if the interest of...