Tornquist v. Perkowski

• Decision Date: 15 November 1984
• Citation: 504 A.2d 1226,208 N.J.Super. 88
• Parties: Ronald E. TORNQUIST and Carol Tornquist, his wife, Plaintiffs, v. Robert T. PERKOWSKI and Gail R. Motaski, Defendants.
• Court: New Jersey Superior Court

Page 88

208 N.J.Super. 88

504 A.2d 1226

Ronald E. TORNQUIST and Carol Tornquist, his wife, Plaintiffs, v. Robert T. PERKOWSKI and Gail R. Motaski, Defendants.

Superior Court of New Jersey, Law Division Morris County.

Decided Nov. 15, 1984.

Fredric F. Azrak, Pompton Plains, for plaintiffs.

Virginia D. Messing, Cranford, for defendants (Robert J. Casulli, Cranford, attorney).

MacKENZIE, J.S.C.

On December 20, 1980, plaintiff Carol Tornquist (Carol) was a passenger in a vehicle operated by her husband, plaintiff Ronald Tornquist (Ronald) on the Newark-Pompton Turnpike in Pompton Plains, New Jersey. Ronald had brought his vehicle to a stop and was waiting to make a left turn onto West Franklin Avenue when the car was struck in the rear by a vehicle owned and operated by defendant Robert Perkowski (defendant). Both plaintiffs sustained personal injuries as a result of the accident. They retained an attorney who instituted suit on their behalf. ¹ Each plaintiff asserted a claim for bodily injury and a per quod claim. ²

At trial, Ronald contended that defendant had failed to make proper observations and had failed to properly control his vehicle. Defendant countered with assertions that Ronald had not signalled his intention to make a left turn. The jury was instructed to find whether either or both drivers had been negligent. It was further instructed to apportion liability between the two if it found that each had proximately caused the accident. ³

This case presented two previously unresolved issues to the court. The first was whether the jury should be given an "ultimate outcome" charge ⁴ with respect to each plaintiff's claim for loss of consortium. The second question was whether the jury should be instructed that the damages awarded on either or both per quod claim(s) should be reduced by the percentage of negligence it might attribute to Ronald. This opinion supplements the oral decision given at the charge conference.

I.

The Ultimate Outcome Charge.

An "ultimate outcome" charge ordinarily is required when a plaintiff and one or more defendants may be deemed to have been causally negligent. Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980). ⁵ The Supreme Court has determined that a jury will better fulfill its fact-finding function when it understands the effect that its apportionment of liability will have upon its damage awards. Ibid. A jury should have such an instruction so that its deliberations will not take place in a vacuum or be based upon a faulty understanding of the effects of its allocation of negligence. Thus, a jury should be given an "ultimate outcome" instruction with respect to the effect that the percentage of negligence ascribed to a party will have upon his damage award.

Providing the jury with an appropriate instruction for Ronald's and Carol's bodily injury claims is not a problem. The language of Model Jury Charge (Civil) § 8.25 may be altered readily to conform to the facts and the applicable law. Before tailoring the charge, the court must decide how to evaluate plaintiffs' per quod claims. Should Carol's per quod recovery be reduced by the percentage of negligence which the jury attributes to her husband? Should the jury be told to reduce Ronald's recovery upon his per quod claim by the percentage of negligence that it attributes to him?

In order to answer the questions presented, the court has had to consider the characteristics of per quod claims and to analyze the unresolved dispute about the nature of a derivative action. The court has also had to apply principles of contributory ⁶ and comparative negligence, ⁷ the doctrine of interspousal tort immunity and the reasons for its abrogation, ⁸ and the rules providing for contribution among joint tortfeasors. ⁹ All of these rules and policies affect the resolution of the issue.

II.

The Definition and Characteristics of a Per Quod Claim.

An action "per quod" is a suit by a spouse ¹⁰ for compensation for the loss of the other spouse's aid, society and conjugal fellowship resulting from the causative fault of another. ^{11 11} See Ekalo v. Contructive Serv. Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965); Zalewski v. Gallagher, 150 N.J.Super. 360, 375 A.2d 1195 (App.Div.1977); Schuttler v. Reinhardt, 17 N.J.Super. 480, 86 A.2d 438 (App.Div.1952). Both husband and wife may sue for loss of consortium of the other. ¹²

An action for loss of consortium has its own statute of limitations. See, e.g., Madej v. Doe, 194 N.J.Super. 580, 477 A.2d 439 (Law Div.1984). The cause of action for loss of consortium does not necessarily accrue at the same time as the other spouse's action for bodily injuries. Consequently, the statute of limitations for a per quod claim need not begin to run at the same time as the statute of limitations for a not begin to run at the same time as the statute of limitations for a bodily injury claim. See, e.g., Goodman v. Mead Johnson & Co., 534 F.2d 566 (3 Cir.1976).

A married woman's per quod claim generally ought to be joined with her husband's suit for bodily injuries. Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965). The Ekalo Court had articulated "a new rule requirement that all claims by husbands and wives for physical injuries and consortium losses resulting from negligent conduct by another must be joined so that they may be tried before a single jury or before a single judge if a jury be waived." Id. at 92, 215 A.2d 1. ¹³ However, there are exceptions to this rule. In Neely v. Kossove, 198 N.J.Super. 503, 487 A.2d 788 (Law Div.1984), a trial court found that a married woman could institute a suit for loss of consortium after her husband had settled his claim for bodily injuries against defendant. ¹⁴ Similarly, the entry of a judgment of "no cause of action" against one spouse would not bar the other spouse's claim. Cf. Orr v. Orr, 36 N.J. 236, 239, 176 A.2d 241 (1961) (a denial of recovery to a child for injuries received will not be res judicata in the parent's subsequent suit for consequential damages). In addition, both spouses' claims for personal injuries need not be joined in one suit if it would "require each spouse who sustained personal injuries in an accident to retain the same attorney in order to bring a single action." Scott v. Richstein, 129 N.J.Super. 516, 518, 324 A.2d 106 (Law Div.1974). ¹⁵

An action for loss of consortium has been described as a "separate" and "independent" claim. Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965); Orr v. Orr, 36 N.J. 236, 176 A.2d 241 (1961); Wimmer v. Coombs, 198 N.J.Super. 184, 486 A.2d 916 (App.Div.1985); Neely v. Kossove, 198 N.J.Super. 503, 487 A.2d 788 (Law Div.1984); Madej v. Doe, 194 N.J.Super. 580, 477 A.2d 439 (Law Div.1984). Cf. Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639 (App.Div.1981) (a "separate and ... personal right"). Such actions are also known as "derivative actions." See, e.g., Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980) (parent and child consortium action); Orr v. Orr, supra (parent and child consortium action; Wimmer v. Coombs, 198 N.J.Super. 184, 486 A.2d 916 (App.Div.1985); Neely v. Kossove, 198 N.J.Super. 503, 487 A.2d 788 (Law Div.1983); Scolaro v. Marlatt, 193 N.J.Super. 452, 474 A.2d 1105 (Law Div.1983); Scott v. Richstein, 129 N.J.Super. 516, 324 A.2d 106 (Law Div.1974); cf. Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 235 A.2d 465 (1967). It is difficult to define a "separate and independent derivative action." The court's definition difficulties were compounded by the diversity of descriptions of derivative actions for loss of consortium which have been provided by the Supreme Court. The court has ruled that a derivative action for loss of consortium merely arises out of the same operative facts and circumstances which give rise to a "direct" or "main" claim for personal injuries, from which the action per quod is "derived." Orr v. Orr, 36 N.J. 236, 176 A.2d 241 (1961). Conversely, the court has also instructed that a derivative action for loss of consortium is barred if the owner of the "main" or "direct" claim may not recover for her injuries as a matter of law. See Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 235 A.2d 465 (1967). Most recently, the Supreme Court has implied that a parent's recovery on a cause of action for the loss of a child's consortium might be reduced by the percentage of negligence attributed to the child by the finder of fact. Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980).

This court has analyzed the cases in which the Supreme Court has suggested that one individual's legal disability might bar or limit a non-negligent person's recovery. None is dispositive of the issue presented here. Therefore, the court concludes that the better rule is to decline to instruct the jury to reduce Carol's recovery by the percentage of negligence, if any, attributed to Ronald.

In Portee v. Jaffee, the Supreme Court cited the Comparative Negligence Act ¹⁶ when it ruled that a parent's recovery for negligent infliction of emotional distress attributable to witnessing her son's accidental death ¹⁷ would be reduced by the percentage of negligence attributed to the boy by the jury. The Court determined that this result was proper because the boy's own recovery would have been reduced by the percentage of negligence for which the jury found him responsible. In the words of the Court, "[t]o allow a plaintiff seeking damages for emotional injuries to recover a greater proportion than the injured party would surely create liability in excess of defendant's fault." Id. at 102, 417 A.2d 521.

Although Portee focused upon parent and child actions for negligent infliction of emotional distress, it did refer in passing to actions for loss of consortium. In footnote six of the opinion, the Court suggested that "[t]he common law action for loss of consortium may be perceived as a claim for negligently inflicted emotional injury." Id....