Wald v. City of Grafton

• Decision Date: 17 July 1989
• Docket Number: No. 890002,890002
• Citation: 442 N.W.2d 910
• Parties: Cynthia WALD, Plaintiff and Appellant, v. CITY OF GRAFTON, North Dakota, Defendant, Third-Party Plaintiff, and Appellee. MINNKOTA POWER COOPERATIVE, INC., Defendant and Third-Party Plaintiff, v. Timothy WALD, Third-Party Defendant. Civ.
• Court: North Dakota Supreme Court

Page 910

442 N.W.2d 910

Cynthia WALD, Plaintiff and Appellant, v. CITY OF GRAFTON, North Dakota, Defendant, Third-Party

Plaintiff, and Appellee.

MINNKOTA POWER COOPERATIVE, INC., Defendant and Third-Party Plaintiff, v. Timothy WALD, Third-Party Defendant.

Civ. No. 890002.

Supreme Court of North Dakota.

July 17, 1989.

Alice R. Senechal, of Robert Vogel Law Office, P.C., Grand Forks, for plaintiff and appellant.

Scott A. Brehm, of Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, for defendant, third-party plaintiff and appellee. Appearance by Paul R. Oppegard.

VANDE WALLE, Justice.

Cynthia Wald appealed from the district court's dismissal of her action against the City of Grafton to recover damages for loss of consortium. We affirm.

On October 23, 1985, Cynthia's husband, Timothy, was seriously injured in an electrical accident while working as an employee of the City of Grafton. Timothy received workers compensation benefits.

Cynthia sued the City of Grafton to recover damages for loss of consortium resulting from the injuries sustained by her husband. The district court granted Grafton's motion for summary judgment. A judgment of dismissal was entered upon the district court's "express determination that there is no just reason for delay and ... express direction for the entry of judgment" [Rule 54(b), N.D.R.Civ.P.]. ¹ The sole issue on appeal is whether or not the exclusive-remedy provisions of the workers compensation statutes bar Cynthia's cause of action for loss of consortium.

Section 65-01-01, N.D.C.C., provides:

"The state of North Dakota, exercising its police and sovereign powers, declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, hence, for workmen injured in hazardous employments, and for their families and dependents, sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this title, and to that end, all civil actions and civil claims for relief for such personal injuries and all jurisdiction of the courts of the state over such causes are abolished except as is otherwise provided in this title." (Emphasis added.)

Section 65-05-06, N.D.C.C., provides:

"The payment of compensation or other benefits by the bureau to an injured employee, or to his dependents in case death has ensued, are in lieu of any and all claims for relief whatsoever against the employer of the injured or deceased employee."

We hold that those sections bar the recovery of damages for loss of consortium by the spouse of an injured worker in an action against the injured worker's employer.

In Schreder v. Cities Service Co., 336 N.W.2d 641 (N.D.1983), we held that, because a widow of a worker killed in a work accident received workers compensation benefits, she was precluded by Section 65-05-06 from suing the employer for loss of consortium. Cynthia contends that "[u]nlike Phyllis Schreder, ..., Mrs. Wald has received nothing from the Bureau, and she is, therefore, not precluded from suing to recover for her loss of consortium." We disagree. Under Section 65-05-06, the payment of compensation or benefits to either an injured worker or his dependents is "in lieu of any and all claims for relief whatsoever against the employer."

We recently observed in Lee v. Job Service North Dakota, 440 N.W.2d 518, 519 (N.D.1989), that "injured workers give up the right to sue for damages arising out of a work-related injury in exchange for 'sure and certain relief ... regardless of questions of fault' (Sec. 65-01-01, N.D.C.C.)." As Professor Larson has said:

"Once a workmen's compensation act has become applicable either through compulsion or election, it affords the exclusive remedy for the injury by the employee or his dependents against the employer and insurance carrier. This is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts." 2A Larson's Workmen's Compensation Law Sec. 65.11 (1988).

In States with exclusive-remedy provisions similar to ours, "the cases with near-unanimity have barred suits" by a spouse for loss of consortium. 2A Larson's Workmen's Compensation Law Sec. 66.21 (1988), and cases cited therein.

Cynthia urges that we follow the "Massachusetts Rule" allowing recovery for loss of consortium. See Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980); accord, LaBonte v. National Gypsum Co., 110 N.H. 314, 269 A.2d 634 (1970). The exclusive-remedy provisions in both Massachusetts and New Hampshire when those cases were decided, however, were very narrow, providing only that the employee waived "his " right of action at common law. As the court observed in Ferriter, supra, 413 N.E.2d at 700: "Few exclusive liability provisions in workmen's compensation statutes are so narrowly drawn." We decline to apply the "Massachusetts Rule" founded on a "narrowly drawn" statute to our much broader exclusive-remedy statutes. ²

Relying on Hastings v. James River Aerie No. 2337, Etc., 246 N.W.2d 747 (N.D.1976), Cynthia contends that her claim is not for personal injuries, but for loss of the right of consortium, which is a property right and therefore is not barred by Section 65-01-01, N.D.C.C. In Hastings, supra, at 749, this court concluded that "a right of consortium is property under Section 5-01-06, N.D.C.C.," providing that certain persons "injured in person, property or means of support by any intoxicated person" may sue any person who caused such intoxication. Our decision was based on the historical interchangeability of the terms "property" and "right" at common law, and, as we observed in Hastings at page 751, the Dram Shop statute involved employed "words that had certain meaning at common law." We further recognized that the common law as to consortium has evolved to meet changing times and conditions. Cf. First Trust Co. v. Scheels Hardware, 429 N.W.2d 5 (N.D.1988); Hopkins v. McBane, 427 N.W.2d 85 (N.D.1988). The modern concept of consortium involves, we believe, the whole spectrum of the relationship between a husband and wife. That concept prevents a loss of consortium from being neatly categorized as a "property" right although Cynthia contends it would be beneficial to her to assume that narrow classification for the purposes of this case. We have no hesitation in concluding that the exclusive-remedy provisions of our workers compensation statutes are unaffected by our decision in Hastings. ³

We are not persuaded that we should construe our exclusive-remedy provisions differently than other courts have construed similarly worded provisions. ⁴ We conclude that the plain language of Sections 65-01-01 and 65-05-06, N.D.C.C., precludes the recovery of damages for loss of consortium by the spouse of an injured worker in an action against the injured worker's employer. We have said that changes in the workers compensation statutes are appropriately left to the Legislature. E.g., State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347 (N.D.1986); Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334, 351 (N.D.1983) [VandeWalle, J., concurring specially]. To our knowledge no proposal has been made to the Legislature to permit a spouse to recover for loss of consortium.

The judgment is affirmed.

ERICKSTAD, C.J., and GIERKE, MESCHKE and LEVINE, JJ., concur.

LEVINE, Justice, specially concurring.

Ms. Wald argued strenuously and convincingly that her claim for loss of consortium is an independent, separate claim based upon her individual, separate injury. She amply supported her argument with citations to Hastings v. James River Aerie No. 2337, 246 N.W.2d 747 (N.D.1976); Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 733 P.2d 530 (1987); Herold v. Burlington Northern, Inc., 761 F.2d 1241 (8th Cir.1985) (applying N.D. law); Macon v. Seaward Const. Co., Inc., 555 F.2d 1 (1st Cir.1977); Lantis v. Condon, 95 Cal.App.3d 152, 157 Cal.Rptr. 22 (1979); Fuller v. Buhrow, 292 N.W.2d 672 (Iowa 1980); Johnson v. Lohre, 508 S.W.2d 785 (Ky.1974), overruled by Brooks v. Burkeen, 549 S.W.2d 91 (Ky.1977); Rosander v. Copco Steel & Engineering Co., 429 N.E.2d 990 (Ind.Ct.App.1982); Maddox v. Truman Medical Center, Inc., 727 S.W.2d 152 (Mo.Ct.App.1987). Though I may agree with her position, it is, as the appellee pointed out, beside the point.

The real question is whether North Dakota Workers Compensation law, which undoubtedly...