Hackford v. Utah Power & Light Co.

740 P.2d 1281, 59 Utah Adv. Rep. 21, 1987 Utah LEXIS 733

• Court: Utah Supreme Court
• Decided: June 9, 1987
• Docket: 20208
• Status: Published

Opinions

ZIMMERMAN, Justice:

Appellant Sherrie Hackford appeals from a Rule 12(b)(6) dismissal of her claim for loss of consortium. The issue presented on appeal is whether in Utah a wife may maintain an action for loss of consortium for an injury to her husband caused by a third party’s alleged negligence. We adhere to our prior decisions and hold that neither spouse has a right to recover for the loss of consortium under Utah law. The judgment below is affirmed.

Sherrie Hackford alleges in her complaint that her husband, Greg Hackford, suffered an incapacitating injury when his head came in contact with a high-tension electrical power line maintained by defendant Utah Power & Light Company. She further alleges that as a result of her husband’s severe and permanent injuries, she has lost the services, society, companionship, advice, and conjugal fellowship her husband otherwise would have been able to provide. Utah Power & Light Company filed a Rule 12(b)(6) motion to dismiss Hackford’s claim. The trial court granted the motion to dismiss based on the authority of Ellis v. Hathaway, 27 Utah 2d 143, 493 P.2d 985 (1972), and Tjas v. Proctor, 591 P.2d 438 (Utah 1978). Those cases held that the common law cause of action for loss of consortium had been abolished in Utah by the Married Woman’s Act of 1898.

On appeal, Hackford’s principal argument is that Ellis and Tjas were wrongly decided, as was the earlier decision on the same issue by United States District Judge Sherman Christensen in Black v. United States, 263 F.Supp. 470 (D. Utah 1967). She contends that the common law right of a husband to sue for loss of consortium does exist in Utah and that it should be made equally available to wives.

As a preliminary matter, it is necessary to briefly review the Married Woman's Act and the Ellis, Tjas, and Black decisions. At common law, “a husband had a claim for loss of consortium against one who negligently injured his wife, though the wife had no corresponding right.” Black v. United States, 263 F.Supp. at 471. In 1898, the common law of England was expressly adopted as the law that should govern in the Utah courts,

so far as it is not repugnant to, or in conflict with, the constitution or laws of the United States, or the constitution or the laws of this state and so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people hereof....

R.S.1898 ch. 1907, § 2488; Utah Code Ann. § 68-3-1 (1986). In 1898, the Utah legislature also passed the Married Woman’s Act, which provides in pertinent part:

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.

Utah Code Ann. § 30-2-4 (1984).

The effect of this statute on the common law right to sue for loss of consortium was not considered in a judicial opinion until 69 years later, when Judge Christensen wrote his lengthy opinion in Black. Judge Christensen was confronted with a complaint seeking damages for loss of consortium. The action was in federal court by reason of diversity jurisdiction, and the governing law was that of Utah. Judge Christensen thought that the Married Woman’s Act could be read as abolishing the loss-of-consortium cause of action because a loss-of-consortium cause of action could be characterized as a husband’s right of recovery “on account of personal injury or wrong to his wife,” but he also conceded that the Act’s intent was less than clear. He then made an extensive analysis of the law as it was apparently understood by the Utah courts and bar. He found that the loss-of-consortium cause of action was entirely unknown to the Utah courts and bar from the turn of the century until the 1960s. Given this fact and the wording of the Married Woman’s Act, Judge Christensen concluded that the existence of the cause of action was sufficiently problematic that he would not permit such a claim to be presented in federal court.

The Utah Supreme Court did not consider the impact of the Married Woman’s Act on the loss-of-consortium cause of action until five years after Black. In Ellis, the Court summarily disposed of a husband’s claim for loss of consortium by stating that the Married Woman’s Act had placed a husband and a wife on equal footing: neither had such a claim.. In Tjas, the Court similarly disposed of a woman’s cause of action for loss of consortium. Neither Ellis nor Tjas contains any detailed explication of the Act’s rather uncertain language.

In asking that we hold that a loss-of-consortium cause of action does exist in Utah and that it extends to wives as well as husbands, Hackford argues that a careful reading of the Married Woman’s Act in context shows that it had no impact on the loss-of-consortium cause of action. Specifically, she contends that the right to sue for loss of consortium is a .right to sue for harm done not to the wife, but to the interest the husband has in his relationship with his wife. Therefore, the Married Woman’s Act is best read as simply empowering a married woman to sue in her own name for physical injuries done to her. At common law, she had no such right; only a husband could sue for injuries suffered by his wife. This construction of the Married Woman’s Act leaves the loss-of-consortium cause of action alive and well and available to vindicate a spouse’s relational interest that is harmed when the other spouse is disabled from fulfilling his or her role in the relationship.

Hackford suggests that if we agree with her reading of the statute, we should not feel bound to follow our contrary decisions in Ellis and Tjas, but should consider the matter as though it were presented to us for the first time. As a basis for disregarding Ellis and Tjas, she argues that in those cases, this Court blindly followed the federal court decision in Black v. United States, 263 F.Supp. 470 (D. Utah 1967), which was wrongly decided. Therefore Ellis and Tjas do not represent an independent determination of the issue by this Court and ought not be accorded any real precedential weight.

Whatever merit there might be to Hack-ford’s interpretation of the Married Woman’s Act in the abstract, we do not think that Ellis and Tjas can be so easily ignored. First, despite Hackford’s suggestion to the contrary, Black did not purport to settle Utah law on the question of whether the loss-of-consortium cause of action had been abolished by the passage of the Married Woman’s Act. All Judge Christensen did was decide that in the absence of any decision from this Court on the point, his duty was to attempt to determine the law of Utah and follow it. Because he believed the matter to be in doubt, Judge Christensen decided that it was inappropriate for a federal court to declare the existence of the cause of action. He expressly stated that if the cause of action existed in Utah, that fact would have to be announced by the legislature or by this Court. This hardly amounts, to a definitive statement of Utah law.

Second, Ellis and Tjas do not represent a blind following of Black. The Court in Ellis did not rely, uncritically or otherwise, on Black. Although Black was decided in 1967, five years before Ellis, Black was not mentioned in the briefs filed with this Court by the parties to the Ellis appeal, and it was not mentioned by the Court in the Ellis opinion. Therefore, Ellis must be considered to be an independent interpretation of the Married Woman’s Act.

The briefs in Tjas did cite Black, and the opinion cited Black. However, Ellis was not cited to or by the Tjas Court. Tjas, then, amounted to a second and independent interpretation of the Married Woman’s Act by this Court that conforms in result to that in Ellis. This conclusion is not negated by the fact that Black was cited by the Tjas Court. Given the fact that Judge Christensen did not purport to answer definitively the question of what the Utah law was on the loss-of-consortium issue, the mere fact that the Tjas Court cited Black does not mean that one can fairly imply, as does Hackford, that the Tjas Court did not reach or independently consider the arguments of the parties on the loss-of-consortium question.

What we have, then, are two relatively recent decisions of this Court interpreting an 1898 statute and holding that the loss-of-consortium cause of action does not exist in Utah. Should we accept Hackford’s arguably “better” interpretation of the Married Woman’s Act and overturn those decisions simply because neither represents a long-settled judicial interpretation of the statute and neither contains a particularly persuasive analysis of the issue? The answer must take into account the fact that we are not dealing with an interpretation of the common law, which this Court may alter to conform with evolving standards and changing times. Rather, we are dealing with an interpretation of a statute.

Asa general proposition, a judicial interpretation of a statute becomes a gloss on that statute that is, in effect, part of the statute. Ordinarily, changes in statutes and their glosses are best left to the legislature. However, there are no absolutes in this area. As a practical matter, we can and do, on occasion, depart from a prior statutory interpretation. The real question is whether, in a given case, we should take this rather unusual step. Several factors are pertinent to that determination, among which are the plausibility of the existing interpretation given the statute, the degree to which that interpretation has worked itself into the state of the law, and the strength of the arguments for changing that interpretation.

Before discussing the plausibility of the interpretation Ellis, Tjas, and Black gave to Utah’s Married Woman’s Act, a rather lengthy digression is necessary to set the stage. The traditional common law justification for the loss-of-consortium cause of action that a husband had for the injury of his wife was that the husband had lost the services of his wife and was entitled to recover their value. See, e.g., W. Prosser & W. Keeton, The Law of Torts § 125, at 931-32 (5th ed. 1984). The concept of the services owed to the husband by the wife came to include affection, society, and sexual relations. See, e.g., Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 2 (1923); Prosser & Keeton, supra, at 931. However, this broader concept of services was still treated as a characteristic of the husband’s “interest” in his wife, rather than as an aspect of a “relationship” participated in by both parties. See Holbrook, supra, 22 Mich.L.Rev. at 2-4; Comment, Negligent Injury to Family Relationships: A Reevaluation of the Logic of Liability, 77 Nw.U.L.Rev. 794, 796-97 (1983).

Around the turn of this century, many states, including Utah, passed married women’s acts. In the years that followed, the courts almost unanimously held that these acts did not confer upon a wife the right to sue one who negligently injured her husband for any resulting loss of consortium, although the husband was generally held to have retained his right to sue. See Holbrook, supra, 22 Mich.L.Rev. at 4-7. The reasons given for this disparate treatment of husband and wife varied; to avoid it, some courts went so far as to abolish the husband’s right to sue for loss of consortium. Id. at 7; Comment, supra, 77 Nw.U.L.Rev. at 797-98. It appears that courts refused to recognize a wife’s right to sue for a loss of consortium largely for two reasons. First, they had misgivings about the consequences of expanding the availability of the cause of action, such as the possibility of double recovery by a husband and a wife for the same harm. Second, their thinking on the issue was bounded by the common law’s conceptualization of the cause of action as being based on a husband's right to his wife's services. Since the wife had no analogous right to her husband’s services, she had no theoretical grounding for a loss-of-consortium cause of action. See Prosser & Keeton, supra p. 5, at 931; Comment, supra p. 1284, 77 Nw.U.L.Rev. at 797-98.

In 1950, this conceptual barrier to expansion of the cause of action was shattered by the United States Court of Appeals for the District of Columbia Circuit in Hitaffer v. Argonne Co., 183 F.2d 811 (D.C.Cir.), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), overruled on other grounds sub nom., Smither and Co. v. Coles, 242 F.2d 220 (D.C.Cir.1957). The Hitaffer court discarded the traditional right-to-services basis for the cause of action and adopted Prosser’s statement that “[t]he loss of ‘services’ is an outworn fiction, and the wife’s interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband.” 183 F.2d at 818 (quoting W. Prosser, Handbook of the Law of Torts, at 948 (1941)). The court held that the wife had an equal interest in the marital relationship and an equal right to sue for loss of consortium. The logic of Hitaffer was apparently irresistible, for it quickly resulted in the almost universal extension to the wife of a loss-of-consortium cause of action. See Prosser & Keeton, supra p. 1284, at 932; Comment, supra p. 1284,77 Nw.U.L.Rev. at 798.

This background is necessary because it serves to place Utah’s 1898 Married Woman’s Act in historical perspective. In appraising the plausibility of the interpretation given the Married Woman’s Act in Ellis and Tjas, Hackford argues as though the Hitaffer view of the cause of action was in vogue at the time Utah’s statute was passed. In fact, it was not. She also argues as though it is utterly unreasonable to interpret the Married Woman’s Act as having abolished the husband’s loss-of-consortium cause of action. We disagree.

The Act provides that “[tjhere shall be no right of recovery by the husband on account of personal injury or wrong to his wife_” Utah Code Ann. § 30-2-4 (1984). In 1898, the cause of action was understood to rest on the husband’s common law right to his wife’s services, rather than the post-Hitaffer view that the action is for harm to the more intimate and personal interest in the relationship between husband and wife. Against this common law conceptualization of the cause of action, it does not seem entirely illogical to construe the language of the Married Woman’s Act as eliminating the husband’s right to recover for the loss of his wife’s services “on account of personal injury or wrong” done to her by a third party. And that may be exactly the reading Judge Christensen found that the members of the Utah Bar had given the provision during the first half of this century before Hitaf-fer was decided. This would account for the rather surprising lack of any decisions by this Court on the issue until comparatively recently and for the observation of Judge Christensen in Black that the cause of action was essentially unknown to the Utah Bar.¹

As demonstrated above, then, there is a measure of plausibility to the interpretation given the Act by Ellis Tjas, and Black, although the treatment given the issue in Ellis and Tjas are certainly not models of analysis or persuasion.

The next question in determining whether we should depart from the existing interpretation of the Married Woman’s Act is whether that interpretation has become so fixed in the fabric of the law that it is beyond our reach. This aspect of the inquiry raises several subsidiary issues. The first is whether the interpretation in question has become settled in the minds of the bench and bar. Here we are confronted with an unusual situation. Normally, an interpretation of a statute achieves a “settled” status only after this Court decides the issue and that interpretation then remains unchallenged for many years. See Mountain States Telephone and Telegraph Co. v. Salt Lake County, 702 P.2d 113 (Utah 1985). However, here the law has followed a somewhat different course. The bar and bench first informally construed the Married Woman’s Act as having modified the common law; only later did this Court recognize that construction.² We see no fundamental reason why the order of events should make any difference in deciding whether we should depart from the decisions in question. Without regard to the order of proceeding, the fact remains that if we depart from Ellis and Tjas, we will change an interpretation of the Married Woman’s Act that has been settled insofar as the bar is concerned for almost 90 years. This certainly argues for adhering to Ellis and Tjas on the ground that the interpretation they reflect has become a part of the law. See id.

But it is not enough to say that an interpretation is settled. Whether we should deem it to be beyond our reach to change also should depend on the degree to which the interpretation, however old, has been woven into the fabric of the law. See id. at 118-19 (Zimmerman, J., concurring). Here, there were no cases on the question until relatively recently, and the legislature has not amended the Married Woman’s Act since its passage; therefore, we have no strong reason to believe that it has adopted the interpretation set forth in Ellis and Tjas. See id. This argues that we accord the interpretation less reverence because while the interpretation is settled, it is not so enmeshed in the substance of the law that it could not easily be changed without having many unanticipated ramifications and without conflicting with real or presumed legislative intentions. Another related factor relevant to the weight to be accorded the interpretation set out in Ellis and Tjas is that it operates to modify a common law cause of action, not to construe a statute that operates in an area of the law which is largely the province of the legislature. Cf. id. This factor, too, argues for less reverence for the interpretation at issue.

Overall, then, the principal argument for letting the Ellis and Tjas interpretation stand is its settled nature. However, we judge that alone to be an insufficient reason to place a reappraisal of its correctness beyond our reach. But even under these circumstances, persuasive policy reasons must exist which would justify taking that step. We do not find them here.

Hackford argues that the loss-of-consortium cause of action is necessary to vindicate the interests of the parties in their mutual relationship and to compensate them for harm done to that interest, a la Hitaffer. But it is not enough to rely on the perceived need to compensate someone for a harm suffered. There are other equally weighty practical factors that must be taken into account in evaluating claims for expanded tort causes of action. Beck v. Farmers Insurance Exchange, 701 P.2d 795, 798-800 (Utah 1985); see, e.g., Sugarman, Doing Away with Tort Law, 73 Calif. L.Rev. 555 (1985); Comment, supra p. 5, 77 Nw.U.L.Rev. 794 (1983). For example, we should consider very carefully where we may later be led by the adoption of such a cause of action and endorsement of its current conceptual foundation.

As the previous discussion of Hitaffer suggests, the new “relationship” conceptual ground for the loss-of-consortium cause of action is quite different from that upon which the cause of action was based at the time of the passage of our Married Woman’s Act. This means that by announcing the existence of this cause of action in Utah, we would, in effect, be establishing a cause of action that has the potential to evolve into something quite different from the cause of action Ellis and Tjas held was abolished by the Act. There is nothing inherent in the logic of the cause of action as it is now recognized around the country that limits its availability to spouses. It could as easily be extended to all negligent infliction of emotional harm upon children, in-laws, lovers, and close friends. In recent years, courts and commentators have struggled mightily to find limiting principles for claims based on such relational interests, but appear to have failed. See, e.g., Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 525 P.2d 669, 115 Cal.Rptr. 765 (1974); Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal.Rptr 302 (1977); Butcher v. Superior Court, 139 Cal.App.3d 58, 188 Cal.Rptr 503 (4th Dist.1983); Grant v. Avis Rent A Car System, Inc., 158 Cal.App.3d 813, 204 Cal.Rptr 869 (Cal.Ct.App.2d Dist.1984); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (1982); Note, Loss of Consortium: Should California Protect Cohabitants’ Relational Interest?, 58 S.Cal.L.Rev. 1467 (1985); Note, Limiting the Cause of Action for Loss of Consortium, 66 Calif.L.Rev. 178, 430-46 (1978); Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722 (1976); cf. Developments in the Law — The Constitution and the Family, 93 Harv.L. Rev. 1156, 1270-95 (1980). As review of these sources demonstrates, the result is profound confusion about where the limits of the cause of action lie and rather arbitrary line-drawing.

Under these circumstances, we do not find persuasive the policy reasons for departing from Ellis and Tjas.3 If the cause of action argued for by the appellant is to be created anew in Utah, it should be done by the legislature.

The trial court is affirmed.

1 . Having said that it is not unreasonable to interpret the Act as abolishing the loss-of-consortium cause of action, we recognize that this is not the only reasonable construction of the Act. If we were considering the Act today on a clean slate, we might follow Hackford’s reading. Her construction does seem to accord with the plain meaning of the statute.

2 . Of central importance here is the fact, noted by Judge Christensen in Black, that from the turn of the century until the mid-1960s, the bench and bar of Utah assumed that the cause of action did not exist, a fact confirmed by Ellis and Tjas. Nothing in the appellant’s briefs contests Judge Christensen’s statement of the assumed status quo.

3 . Utah’s statutory recognition of recovery for wrongful death and this Court’s recognition of an action for alienation of affection do not argue for recognition of the loss-of-consortium cause of action. The wrongful death action seems distinguishable from a loss-of-consortium claim. See Comment, supra p. 5, 77 Nw.U.L. Rev. at 810-12. But even if logic cannot entirely support the distinction, see Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318, 331 (1982); Borer v. American Airlines, Inc., 19 Cal.3d 441, 563 P.2d 858, 866, 138 Cal.Rptr. 302, 310 (1977) (Mosk, J., dissenting), logic is not the sole measure by which the extension of a cause of action is to be judged. The fact that the constitution and the legislature have recognized one cause of action does not mean that we must adopt any cause of action that can cast itself in a similar light.

As for this Court’s recognition of the alienation-of-affection cause of action in Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983), its continued existence is a historical anomaly and should not be relied on to create new causes of action.