Schwennen v. Abell

• Decision Date: 21 September 1988
• Docket Number: No. 86-1674,86-1674
• Citation: 430 N.W.2d 98
• Parties: Elizabeth M. SCHWENNEN, Executor of the Estate of John G. Schwennen, Jr., Deceased, Appellee, v. William T. ABELL, Appellant, and Floyd County, Iowa, Appellee. William T. ABELL, Cross-Petitioner, v. John Karl SCHWENNEN, Defendant to Cross-Petition. Mary E. ABELL, Appellee, v. Elizabeth M. SCHWENNEN, Executor of the Estate of John G. Schwennen, Jr., Deceased; John Karl Schwennen, and Floyd County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 98

430 N.W.2d 98

Elizabeth M. SCHWENNEN, Executor of the Estate of John G. Schwennen, Jr., Deceased, Appellee, v. William T. ABELL, Appellant and Floyd County, Iowa, Appellee.

William T. ABELL, Cross-Petitioner, v. John Karl SCHWENNEN, Defendant to Cross-Petition.

Mary E. ABELL, Appellee, v. Elizabeth M. SCHWENNEN, Executor of the Estate of John G. Schwennen, Jr., Deceased; John Karl Schwennen, and Floyd County, Iowa, Appellees.

No. 86-1674.

Supreme Court of Iowa.

Sept. 21, 1988.

Larry L. Anfinson of Randall, Anfinson & Luce, Waterloo, for appellant William T. Abell.

Judith O'Donohoe of Erb, O'Donohoe & Frye, Charles City, for appellee Mary E. Abell.

Donald H. Gloe of Miller, Pearson, Gloe, Burns, Beatty & Cowie, P.C., Decorah, for appellees Schwennens.

Considered en banc.

CARTER, Justice.

This case comes to us on multiple appeals following entry of judgments in consolidated automobile negligence actions. The issues raised all relate to the effect of an injured spouse's fault in the trial of the other spouse's claim for loss of consortium. For purposes of discussion we will refer to the claimant spouse as the deprived spouse.

Mary E. Abell's husband, William, was injured when an automobile he was driving collided with another automobile driven by John Karl Schwennen and owned by John's father, John G. Schwennen, Jr. This accident occurred on August 9, 1982. The elder Schwennen was a passenger in the automobile and was killed in the collision.

John G. Schwennen, Jr.'s estate brought an action against William based on the latter's alleged negligence in causing the collision. William counterclaimed seeking recovery for the injuries which he sustained in the crash. He alleged that John Karl Schwennen was negligent in causing the collision and that the Schwennen estate was vicariously liable under Iowa Code section 321.493 (1981).

On March 3, 1983, Mary brought an independent action against the Schwennen estate, John Karl Schwennen, and Floyd County, Iowa, seeking to recover for loss of aid, services, affection, society, and companionship as a result of injuries sustained by William in the collision. This action was consolidated with the other pending action. Shortly prior to trial of the consolidated actions, Mary amended her petition to include William as an additional defendant against whom her loss of consortium claim was made.

In the trial of Mary's consortium claim, the jury found that she had been damaged in the amount of $85,000. It apportioned fault among the defendants as follows: William, sixty-three percent; the Schwennen defendants, twenty-seven percent; ¹ and Floyd County, ten percent. Because the fault apportioned to William was more than fifty percent of the aggregate, judgment was entered against him for the full amount of the verdict. The other defendants were adjudged only to be liable in proportion to the share of fault ascribed to them.

I. Liability of Injured Spouse for Loss of Consortium Claim by Deprived Spouse.

The judgment of the district court was entered on October 20, 1986. On December 17, 1986, this court filed its opinion in McIntosh v. Barr, 397 N.W.2d 516 (Iowa 1986). We held that, although the marital consortium interest is legally protected as against third parties, no action lies between the deprived spouse and the injured spouse inter se. William urges that under the McIntosh holding Mary's judgment against him cannot be permitted to stand. The appellees concede that this issue was properly preserved by William in the district court and suggest no reason why McIntosh does not require a reversal of the judgment. Consequently, we must reverse Mary's judgment against William on her loss of consortium claim.

II. The Effect of William's Fault on the Liability to be Assessed Against the Remaining Defendants.

Although Mary virtually concedes that her judgment against William must fall, she has sought to protect herself against that eventuality by cross-appealing from her judgment against the Schwennen defendants and Floyd County. ² On this cross-appeal she argues that if she had no legal claim against William then his fault was improperly included in the apportionment of aggregate fault among the parties. Applying this premise, she would interpolate the fault apportionment made by the jury so as to ascribe twenty-seven thirty-sevenths of the aggregate fault to the Schwennen defendants and ten thirty-sevenths to Floyd County.

The Schwennen defendants urge that Mary did not assert this theory in the district court and may not now make such claim on appeal. They also argue that, in any event, in the trial of a loss of consortium claim involving comparative fault, the deprived spouse's claim should be reduced by the fault apportioned to the injured spouse.

A. Applicability of Iowa Code chapter 668. At the outset we must consider the extent to which the comparative fault legislation presently contained in Iowa Code chapter 668 applies to the present case. The action was filed before July 1, 1984, but was tried after that date. The effective date of this legislation was established in the bill enacting it which provides as follows:

This Act, except for section 4, applies to all cases filed on or after July 1, 1984. Section 4 of this Act applies to all cases tried on or after July 1, 1984.

1984 Iowa Acts Ch. 1293, § 15.

The legislation in question deals with three primary topics: (1) the effect of contributory fault in reducing or barring the claimant's right of recovery against all defendants, (2) the elimination of joint and several liability for certain defendants who bear less than fifty percent of the aggregate fault, and (3) special rules concerning the right of contribution and enforcement of contribution among joint tort-feasors. Only the second topic, i.e., the new joint and several liability rule, was made retroactively applicable. The statute expressly negates any retroactive applicability to the first and third topics.

Because of this selective applicability of chapter 668, the statutory provisions which operate to reduce or bar plaintiff's right of recovery against all defendants do not apply. That aspect of plaintiff's claim is still governed by the common-law rules established in Goetzman v. Wichern, 327 N.W.2d 742, 754 (Iowa 1983). The chapter 668 statutory scheme may indirectly affect the extent of plaintiff's recovery against particular defendants, however, through the application of section 668.4.

B. Effect of injured spouse's fault on deprived spouse's claim under Goetzman. Because the common-law concept of comparative negligence recognized in Goetzman is applicable to defendants' attempt to secure a reduction of Mary's claim against all defendants based on contributory fault, we must examine the scope of that holding. Such examination reveals that the decision only supplanted prior law in those instances where "contributory negligence has previously been a complete defense." Goetzman, 327 N.W.2d at 754.

If Mary had been guilty of some negligence which proximately caused William's injury, this would have constituted a complete defense to her claim under the law which antedated Goetzman. No contention has been made, however, that Mary was personally guilty of such negligence. William's negligence would not have constituted a complete defense to Mary's claim under pre-Goetzman law.

In Fuller v. Buhrow, 292 N.W.2d 672, 675-76 (Iowa 1980), we held that the contributory fault of an injured spouse does not provide a defense to a loss of consortium claim brought on behalf of the deprived spouse against a third-party tort-feasor. At that time we fully considered conflicting lines of authority contained in decisions from other jurisdictions and our own prior decision in Ziegler v. United States Gypsum Co., 251 Iowa 714, 717, 102 N.W.2d 152, 153 (1960). We opted for a rule which recognizes "the negligence of another, not the plaintiff, [having] concurred in producing the injury is no defense to any of those whose negligence proximately caused the injury." Fuller, 292 N.W.2d at 674.

We are unable to discern any persuasive reasons why a departure from the position established in Fuller is indicated from the fact that this jurisdiction has now abandoned the contributory negligence defense in favor of a comparative fault concept. The policy issues underlying the effect of the injured spouse's fault on the deprived spouse's loss of consortium claim are, we believe, substantially the same in either situation. The policy issue is a simple one. Why should innocent parties who have suffered loss have their right of recovery diminished as a result of the acts of another party whose fault is not imputed to them under established common-law or statutory rules?

Cases cited by the Schwennen defendants which reach a contrary result have characterized the deprived spouse's cause of action as derivative of the injured spouse's claim. See Nelson v. Busby, 246 Ark. 247, 255, 437 S.W.2d 799, 803 (1969); Gates v. Foley, 247 So.2d 40, 45 (Fla.1971); White v. Lunder, 66 Wis.2d 563, 574, 225 N.W.2d 442, 449 (1975). We rejected this characterization of a loss of consortium claim in Fuller and in the more recent decision of Madison v. Colby, 348 N.W.2d 202, 208-09 (Iowa 1984).

Other comparative fault jurisdictions which have refused to characterize a loss of consortium action as derivative include Macon v. Seaward Construction Co., 555 F.2d 1, 2 (1st Cir.1977) (applying New Hampshire law); Lantis v. Condon, 95 Cal.App.3d 152, 157, 157 Cal.Rptr. 22, 24 (1979); Feltch v. General Rental Co., 383 Mass. 603, 608, 421 N.E.2d 67, 70-71 (1981); Christie v. Maxwell, 40 Wash.App. 40, 44, 696 P.2d 1256, 1258 (1985). The courts which rendered the latter decisions have refused to reduce the deprived spouse's recovery as a result of fault attributable to the injured spouse.

The Schwennen defendants suggest there is a potential for unjust enrichment of a single economic unit if...