Sitzes v. Anchor Motor Freight, Inc.

Decision Date23 March 1982
Docket NumberNo. CC924,CC924
Citation289 S.E.2d 679,169 W.Va. 698
PartiesArnold R. SITZES, et al., Admrs., etc., Plaintiffs v. ANCHOR MOTOR FREIGHT, INC., etc., Third-Party Plaintiff, v. James R. ROBERSON, Third-Party Defendant.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The decision to abolish the common law rule of interspousal immunity contained in Coffindaffer v. Coffindaffer, W.Va., 244 S.E.2d 338 (1978), should be applied retroactively.

2. This jurisdiction is committed to the concept of joint and several liability among joint tortfeasors. A plaintiff may elect to sue any or all of those responsible for his injuries and collect his damages from whomever is able to pay, irrespective of their percentage of fault. Our adoption of a modified rule for contributory negligence in Bradley v. Appalachian Power Co., W.Va., 256 S.E.2d 879 (1979), did not change our adherence to joint and several liability.

3. As between joint tortfeasors, a right of comparative contribution exists inter se based upon their relative degrees of primary fault or negligence.

4. Once comparative fault in regard to contribution is recognized, recovery can be had by one joint tortfeasor against another joint tortfeasor inter se regardless of their respective degree of fault so long as the one has paid more than his pro tanto share to the plaintiff.

5. Generally, parties may set-off on judgments obtained against each other. This rule is, however, not a matter of absolute right but subject to the court's discretion.

6. There is no right of judgment set-off where in a tort case parties have obtained counter judgments against each other and both parties are fully covered by liability insurance as to such judgments.

W. E. Mohler, Charleston, for plaintiff Anchor Motor Freight, Inc.

John R. Hoblitzell and Richard D. Jones, Charleston, for third-party defendant.

MILLER, Chief Justice:

We have accepted certain certified questions from the United States District Court for the Southern District of West Virginia pursuant to the provisions of W.Va.Code, 51-1A-1, et seq. 1 Generally, we are asked to state (1) whether Coffindaffer v. Coffindaffer, W.Va., 244 S.E.2d 338 (1978), which abolished the doctrine of interspousal immunity, is to be applied retroactively, and (2) what effect our adoption of comparative negligence as announced in Bradley v. Appalachian Power Co., W.Va., 256 S.E.2d 879 (1979), has upon both the rules of contribution among joint tortfeasors and a jury's distribution of the damage award under our wrongful death statute, W.Va. Code, 55-7-6 (1976).

The facts of the case have been presented to us as follows:

"Plaintiffs in this action, Arnold L. Sitzes and Edward L. Rucks, are administrators of the estate of Patricia Ann Roberson. Mrs. Roberson was killed in an automobile accident on January 19, 1977. At the time, she was a passenger in a pick-up truck driven by her husband, James R. Roberson, which collided with a motor truck driven by Oswald R. Carter, an agent and employee of the defendant Anchor Motor Freight, Inc. Mrs. Roberson is survived by her husband and her son, Joseph Eugene Roberson.

"Plaintiffs commenced this action against the defendant on November 23, 1977. With leave of court, defendant "On March 31, 1981, the jury returned a verdict for the plaintiffs and against the defendants and assessed plaintiffs' damages in the amount of $100,000. In accordance with the provisions of West Virginia Code § 55-7-6, the jury directed that the plaintiffs should distribute $75,000 (or 75%) of the award to Mrs. Roberson's son, Joseph Eugene Roberson, and $25,000 (25%) to Mrs. Roberson's husband, James R. Roberson, the third-party defendant.

filed a third-party complaint for contribution against Mr. Roberson on February 12, 1980. The matter went to trial on March 30, 1981. This court, perceiving a potential conflict between West Virginia's normal rules of contribution (which would apportion damages equally among joint tortfeasors) and the state's newly-adopted rule of comparative negligence (which requires a jury to 'assign the proportion or degree of this total negligence among the various parties,' Bradley v. Appalachian Power, 256 S.E.2d 879, 885 (W.Va.1979), and which denies recovery to a plaintiff whose negligence equals or exceeds 50% of the combined negligence of the [169 W.Va. 701] parties to the accident), instructed the jury to assign percentages of fault to the third-party plaintiff and third-party defendant if it found that both had been negligent. Plaintiffs' decedent was not negligent, and was therefore excluded from the apportioning.

"On the third-party claim, the jury found both the third-party plaintiff and the third-party defendant negligent, and found that the degree of negligence attributable to Anchor Motor Freight was 70% and the degree attributable to James R. Roberson was 30%.

"Thus, in summary, the jury concluded that the accident was caused by the combined negligence of the defendant (70% negligent) and the third-party defendant (30% negligent); that the amount of damages was $100,000; and that the award should be distributed 25% to the decedent's husband and third-party defendant and 75% to the son."


We answer the first certified question--"[W]as the third-party complaint barred by the doctrine of interspousal immunity?" in the negative. In doing so, we rule that Coffindaffer v. Coffindaffer, W.Va., 244 S.E.2d 338 (1978), is to be applied retroactively.

Our decision in Coffindaffer was based on two principles: (1) the plain meaning of W.Va.Code, 48-3-19 (the Married Woman's Act), which allows a married woman to sue or be sued as if she were single, and (2) the existence of a general movement in all jurisdictions to abolish common law immunities, including interspousal immunity.

We acknowledged in Coffindaffer that we were overruling this Court's previous construction of the Married Woman's Act as announced in Poling v. Poling, 116 W.Va. 187, 179 S.E. 604 (1935). In doing so, we noted that the trend in this State was decidedly in favor of the abolishment of common law immunities. For example, charitable immunity of hospitals was struck down in Adkins v. St. Francis Hospital, 149 W.Va. 705, 143 S.E.2d 154 (1965). Family immunity was limited to parent-child and husband-wife relationships in Freeland v. Freeland, 152 W.Va. 332, 162 S.E.2d 922 (1968). In Long v. City of Weirton, W.Va., 214 S.E.2d 832 (1975), and Higginbotham v. City of Charleston, 157 W.Va. 724, 204 S.E.2d 1 (1974), we held that there was no common law governmental immunity for municipal corporations. Furthermore, in Lee v. Comer, W.Va., 224 S.E.2d 721 (1976), the doctrine of parental immunity was abrogated so as to permit an unemancipated minor child to sue for injuries received in a motor vehicle accident. 2 All of these decisions except Freeland overruled prior case law and all were decided by unanimous opinion. These decisions found support from other courts as well. In Coffindaffer, we cited twenty-four other jurisdictions which had abolished at that time the common law doctrine of interspousal immunity. Most commentators also oppose the doctrine. 3

When we compare the reasons given for the decision in Coffindaffer to our rules in regard to retroactivity, we conclude that the case should be made retroactive. In Syllabus Point 4 of Bradley, we discussed the primary reason for extending retroactivity:

"Retroactivity of an overruling decision is designed to provide equality of application to the overruling decision because its new rule has been consciously designed to correct a flawed area of the law." 4

In Syllabus Point 5 of Bradley, 5 we outlined six factors we would consider in limiting retroactivity. These factors can be briefly summarized: (1) whether the issue involves a settled area of the law where retroactivity would be less justified or a changing area where retroactivity would be more likely and whether the new rule is foreshadowed; (2) procedural rules are more likely to be afforded retroactivity than substantive points; (3) common law rule changes are more likely to be applied retroactively; (4) substantial public policy changes are less likely to be applied retroactively; (5) the more radical departure from prior law the less likelihood for retroactivity; and (6) analogous decisions of other jurisdictions.

The issue in this case arises out of a tort, not a traditionally settled area of the law, and it is clearly foreshadowed by our decisions prior to Coffindaffer overruling other common law immunities, particularly family immunities. Moreover, there was and still is a recognized trend throughout the rest of the country to limit or abolish common law immunities. Though the issue presented here is substantive rather than procedural, in the tort area, our statute of limitations and the rule itself (dealing as it does solely with spouses) limits the class that will benefit by retroactivity. Thus, the impact of applying Coffindaffer retroactively is not substantial as it will affect only a limited number of cases. 6

The fourth and fifth criteria of Bradley indicate that prospective application of a rule will ordinarily be favored where substantial public issues are involved arising from statutory or constitutional interpretations that represent a clear departure from prior precedent. We do not believe any substantial public policy issue was involved in Coffindaffer and its decision was not a radical departure from our previous cases restricting the substantive law of a common law immunity. 7

In viewing all the circumstances under the facts of the present case, we conclude that the decision to abolish the common law rule of interspousal immunity contained in Coffindaffer should be applied retroactively.


Having decided that Coffindaffer is to be applied retroactively, we next address the remaining certified...

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