Hackford v. Utah Power & Light Co. , 59 Utah Adv. Rep. 21 ( 1987 )

HOWE, Justice

(concurring in the result);

I concur in the result. While I agree with much of the majority opinion, I cannot subscribe to the statements that the plaintiff’s construction of Utah Code Ann. § 30-2-4 “does seem to accord with the plain meaning of the statute”; that the majority’s construction is not the only reasonable one; that the statute contains “rather uncertain language”; and that we have “no strong reason to believe” that the legislature has adopted our interpretation of the statute in Ellis v. Hathaway and Tjas v. Proctor. Nor do I subscribe to the majority’s criticism of those decisions.

To me, it is clear that section 30-2-4 abolishes the common law right of a husband to recover loss of consortium from his wife’s tort-feasor. The second sentence of that section is direct and forthright:

There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.

The plaintiff contends that because a husband seeks consortium for an injury to himself, he is not recovering anything “on account of personal injury or wrong to his wife.” This reasoning is not sound. The husband’s action for consortium is derivative. If the wife has no cause of action for her injuries, the husband has none for consortium. See Pioneer Construction Co. v. Bergeron, 170 Colo. 474, 462 P.2d 589 (1969); Annot., 21 A.L.R.3d 469. Thus, although the husband’s damages may be different from the wife’s, any recovery by him is inescapably “on account of the personal injury or wrong to his wife.” Furthermore, if it were not intended that the statute abolish all right of recovery by the husband, it would not have been necessary to authorize the wife to recover in her action medical expenses paid or assumed by her husband. He could and should recover those expenses himself in his consortium action. I find it difficult to believe that in emancipating women from the shackles of the common law, the legislature would leave undisturbed the most offensive shackle of all, consortium, which had its basis in the concept that a wife was a chattel of her husband. The plain and clear language of section 30-2-4 indicates no such legislative intent.

The comparison made by the plaintiff between an action for loss of consortium and an action for wrongful death or for alienation of affections is unavailing. Actions for wrongful death are protected by the Utah Constitution, article XVI, section 5, and were unaffected by the legislative enactment of section 30-2-4. Actions for alienation of affections are not derivative from a tort committed on the alienated spouse. The latter is not injured at all. Rather, alienation of affections arises from a tort committed on the nonalienated spouse by interference with his or her marriage contract. An action by a husband for alienation of affections such as Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983), can in no wise be said to be brought “on account of personal injury or wrong to his wife,” as prohibited by section 30-2-4.

The dissenting opinion states that married women’s acts have generally not been interpreted to abolish the husband’s right to consortium. This may be so, but that generality is of little aid here since we do not have before us the language contained in other statutes to compare with ours. The dissenters have not undertaken any such comparison. However, U.S. District Judge A. Sherman Christensen in Black v. United States, 263 F.Supp. 470 (1967), observed that the insertion of the second sentence in section 30-2-4 made that statute significantly distinguishable from most other married women’s acts which have been construed to permit recovery for loss of consortium by husbands. He noted that section 55-36 of the Code of Virginia (1950) was similar in many respects to our section 30-2-4 in that they both affirmatively deny the husband a right of recovery or action for the personal injury of the wife. The Virginia statute has been interpreted to deny a husband the right to maintain an action for loss of his wife’s consortium. Felch v. Air Florida, Inc., 562 F.Supp. 383 (D.D.C.1983); Carey v. Foster, 345 F.2d 772 (4th Cir.1965).

It was wisely observed by the Pennsylvania Supreme Court in In re Burtt’s Estate, 353 Pa. 217, 44 A.2d 670, 162 A.L.R. 1053 (1945), that “a statutory construction once made and followed should never be altered upon the changed views of new personnel of the court.” More recently, the Supreme Court of Oregon in State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984), stated that “statutory interpretation particularly implicates the rule of stare decisis. When this court interprets a statute, that interpretation becomes ‘a part of the statute as if written into it at the time of its enactment.’ ” (Citations omitted.) The court then quoted with approval the following statement from Cottrell v. CIR, 628 F.2d 1127, 1131 (8th Cir.1980):

The doctrine of stare decisis, weighty in any context, is especially so in matters of statutory construction. For in such cases congress may cure any error made by the courts. Until it does, the bar and the public are justified in expecting the courts, except in the most egregious cases, neither to depart from previous interpretations of the statute, nor to give them a grudging application.

I am mindful that forty-seven states have recognized the right of a spouse to recover consortium for personal injuries sustained by his or her spouse. This has been done either by judicial decision or by a statute conferring that right. However, in none of the cases which I have examined where it was done by judicial decision was there a situation comparable to ours, viz., there was a statute which for ninety years had been interpreted to deny such right. In an effort to “join the crowd” and to sidestep our statute which stands in the way, the plaintiff would have us reinterpret the statute and give it an entirely new meaning. The forum for repealing a statute is the legislature. Courts should not engage in the repealing process by denying the statute’s meaning as ascribed by practical construction and judicial decisions for almost a century. The legislature has met annually for fifteen years since 1972 when Ellis v. Hathaway was decided. No legislation has been enacted to reverse or modify our decision in that case. So far as this writer knows, no legislation has ever been introduced to do so. This indicates legislative acceptance to me.

It is true that some courts, e.g., Rodriguez v. Bethlehem Steel Corp., 12 Cal.App.3d 382, 525 P.2d 669, 115 Cal.Rptr. 765 (1974), and Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980), have recognized that it was their responsibility to shape and mold the common law of their states to meet changing times and conditions. In so doing, they concluded that the time had arrived, if they were to more completely compensate those who were damaged by torts, to restore the common law right of consortium to the husband and, to achieve equality, to extend that right to the wife. Such action may not be improper since courts may overturn judicially fashioned rules. However, these courts did not overturn the well-settled interpretation of a statute in the process and reverse a legislative exercise of constitutional power.

I fully agree with the majority that if the right to consortium is to be given in this state, the proper approach should be for the legislature to do it by modifying the language of section 30-2-4. In so doing, the legislature can give that right to both husband and wife. It can also consider how far that right should be extended to others, such as to children who likewise suffer when a parent is tortiously injured. In fact, with the high rate of divorce in this country, a persuasive argument can be made that children suffer longer and more intensely than does a spouse. Since most torts are compensated for, if at all, by insurance purchased by the tort-feasor, the cost and reasonable availability of insurance are inexorably related to the enlargement of the circle encompassing those persons entitled to recover damages. However admirable in the name of justice it is to attempt to compensate everyone who suffers at the hand of the tort-feasor, boundaries around liability must be drawn. See Howard Frank, M.D., P.C. v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986), holding that parents may maintain a cause of action for loss of consortium against a third party who negligently injures their adult child, and Butcher v. Superior Court, 139 Cal.App.3d 58, 188 Cal.Rptr. 503, 40 A.L.R.4th 539 (1983), holding that an unmarried cohabitant may recover consortium from the tort-feasor of his or her cohabitant. The legislature is peculiarly equipped to draw the lines. We are not. The following comments by Chief Justice Schaefer of the Illinois Supreme Court, dissenting in Dini v. Naiditch, 20 Ill. 2d 406, 433, 170 N.E.2d 881, 894 (1960), are pertinent here:

Each man’s life is linked to the lives of many others, and an injury to one inevitably has its impact upon the lives of others. So far as I am aware, however, it has never been suggested that everyone who is adversely affected by an injury inflicted upon another should be allowed to recover his damages. It may be possible to argue that the relationship of husband and wife has distinctive characteristics that would justify a recovery which is denied to those who stand in other relationships to the injured person. But no such argument is advanced in the majority opinion, and it is hard to see why, for example, the wife of an injured man should be allowed a recovery that is denied to his children. If the boundaries of permissible recovery are to be extended, they should be extended upon a realistic appraisal of the factors involved, and not to achieve consistency with an outworn common law cause of action.

HALL, C.J., concurs in the concurring opinion of HOWE, J.