No. 13013
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1975
STATE F R M T A AUTOMOBILE
AM UU L
INSURANCE C M A Y
O P N ,
P l a i n t i f f and A p p e l l a n t ,
JAMES P. LEARY, e t a l . ,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t ,
Honorable James D. Freebourn, Judge p r e s i d i n g .
Counsel of Record :
For A p p e l l a n t :
McKeon and S k a k l e s , Anaconda, Montana
Michael McKeon argued, Anaconda, Montana
For Respondent:
Scanlon and Connors, Anaconda, Montana
Joseph C. Connors argued, Anaconda, Montana
Submitted: November 4 , 1975
Decided: DEC 3 0 1975
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Filed: J E ~ , J JYI5
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an appeal from an order of the district court,
Silver Bow County, granting a summary judgment in an action
to declare the rights and duties of an insurance company.
On July 27, 1973, Herman and Sylvia Meyers, husband and
wife, were involved in an automobile accident approximately
ten miles south of Butte, Montana. Herman Meyers was driving
the automobile, with Sylvia Meyers as a passenger. Through the
alleged negligence of Herman Meyers, their automobile collided
with another motor vehicle, killing Herman Meyers instantly.
Sylvia Meyers survived for eleven days, dying on August 7, 1973,
as a result of injuries received in the accident.
Two suits were filed in district court. The first suit
was a separate cause of action by Edward Meyers, the son of Herman
and Sylvia Meyers, against Herman Meyer's estate, for the wrongful
death of Sylvia Meyers. The second suit was by Jack M. Scanlon,
administrator of the estate of Sylvia Meyers, for medical, hospital
and funeral expenses and for pain and suffering. Both suits were
based on the alleged gross negligence of Herman Meyers in the
operation of the automobile.
After the commencement of these suits, James P. Leary,
administrator of Herman Meyers' estate, tendered the suit papers
to the insurance company to provide a defense under the terms
of the automobile liability policy issued to Herman Meyers. The
insurance company subsequently filed a complaint seeking a
declaratory judgment as to its rights and duties under the in-
surance policy.
After the answer was filed, all parties moved for a
summary judgment. The district court granted respondents' motion
and denied appellant's motion. The applicable portions of the
summary judgment provide:
"IT IS ORDERED that the death of Plaintiff's
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insured Herman H. Meyers, prior to the death
of his surviving spouse terminated the marital
relationship and the insurance policy defense
[interfamily immunity exclusion] relied upon
by the Plaintiff as a matter of law.
"IT IS FURTHER ORDERED that the insurance policy
defense based upon the interfamily immunity
doctrine relied upon by the plaintiff is void as
contra to the public policy of this state and is
discriminatory."
The order also required the insurance company to defend the
estate of Herman Meyers against claims of the son and the claim
of the estate of Sylvia Meyers, and to pay up to its policy
limits any amounts it might become obligated to pay as a result
of this accident.
The insurance company appeals from this summary judgment.
We have been asked to review the interfamily tort immun-
ity doctrine as applied in Montana, and determine whether it is
void as contrary to public policy.
This Court in State ex rel. Angvall v. Dist. Ct., 151
Mont. 483, 484, 444 P.2d 370, has always followed the rule that:
" * * * a wife may not maintain an action
against her husband for personal injuries
[inflicted] upon her by her husband while
they are married."
This position was first declared in Conley v. Conley, 92 Mont.
425, 15 P.2d 922, and was reaffirmed in Kelly v. Williams, 94
Mont. 19, 21 P.2d 58, and Angvall.
This rule is based on the common law rule prohibiting
suits between husband and wife. Respondents ask that this Court
reject the common law doctrine as being opposed to the public
policy. The Oregon Supreme Court faced with a similar request
regarding interfamily tort immunity in Smith v. Smith, 205 Or.
286, 287 P.2d 572, 578, held:
"The question presented is, therefore, whether
this court should in a case of this kind express
its own conclusions as to the public policy of
the state relative to this issue. In that con-
nection we recognize that when the public policy
of the state is clearly expressed by statute,
it will control, and that in general, questions
of public policy are primarily, though not ex-
clusively, for legislative determination."
The Montana Legislature has enacted statutes granting a
married woman the right to prosecute and defend actions in her
own name (section 36-110, R.C.M. 1947) and sue or be sued as
though she were sole (section 36-128, R.C.M. 1947). Respond-
ents argue these statutes modify the common law doctrine so as
to allow tort suits between husband and wife. We do not agree.
We believe the United States District Court for the District
of Montana, in Dutton v. Hightower and Lubrecht Construction Co.,
214 F.Supp. 298, 300, was correct in stating these statutes
" * * * are procedural and create no new rights, but
only remove the common law disability of married women to enforce
their rights otherwise created or existing."
The District of Columbia Married Woman's Act was similarly
viewed in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54
L Ed 1180, 1182, wherein the Supreme Court stated:
"The statute was not intended to give a right
of action as against the husband, but to allow
the wife, in her own name, to maintain actions
of tort which, at common law, must be brought
in the joint names of herself and husband."
The intervening death of Herman Meyers would not end the
tort immunity as the cause of action arose during coveture, which
is the critical time for imposition of the doctrine and defense.
Angvall' supra.
Respondents cite the minority rule allowing interspousal
tort actions by judicial modification of the common law rule,
as stated in Mosier v. Carney, 376 Mich. 532, 138 N.W.2d 343,
and citations contained therein. See, also, Karell, Toward
Abolition of Interspousal Tort Immunity, 36 Mont.L.Rev. 251.
We do not believe this is an area requiring judicial modification
of the common law to prevent great injustice. This is a question
of public policy best left to the legislative branch of govern-
ment which is the proper body to determine and set forth public
policy.
a
Respondents argue that their rights to recover as/person-
a1 representative of the deceased and as son of the deceased are
independent of the potential cause of action by Sylvia Meyers
against Herman Meyers and are not barred by the interfamily tort
immunity doctrine.
Section 93-2824, R.C.M. 1947, provides:
"An action, or cause of action, or defense, shall
not abate by death, or other disability of a
party, or by the transfer of any interest therein,
but shall in all cases, where a cause of action
or defense arose in favor of such party prior
to his death, or other disability, or transfer
of interest therein, survive, and be maintained
by his representatives or successors in interest;
and in case such action has not been begun or
defense interposed, the action may be begun or
defense set up in the name of his representatives
or successors in interest * * *".
This statute gives a derivative right of action to the representa-
tive as the language "where a cause of action or defense arose
in favor of such party prior to his death" clearly indicates.
The West Virginia Supreme Court in Wright v. Davis, 132 W.Va.
722, 53 S.E.2d 335, 336, said of such a statute:
" * * * this statute gives a right of action
to the personal representative of the deceased
only in case the deceased might have maintained
an action, but failed to do so, against a de-
fendant who is liable for damages."
Sylvia Meyers could not have maintained a cause of action
prior to her death due to the interfamily tort immunity doctrine,
therefore no cause of action could flow to her personal represent-
ative. The husband's personal representative would be able to
avail himself of the defense of interfamily tort immunity, be-
cause the defense arose prior to his death, therefore it sur-
vived his death.
The son claims wrongful death damages under
section 93-2810, R.C.M. 1947 :
"When the death of one person, not being a
minor, is caused by the wrongful act or neglect
of another, his heirs or personal representatives
may maintain an action for damages against the
person causing the death * * *."
If the son can recover wrongful death damages under the
statute, he would have a right superior to what the mother had
during her lifetime. This Court has held in Melville v. Butte-
Balaklava Copper Co. 47 Mont. 1, 12, 130 P. 441, quoting from
Northern Pac. Ry. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48
L Ed 513, regarding workmen's compensation recoveries for wrong-
ful death:
" I * * *It cannot be that, if the death was caused
by a rightful act, or an unintentional act with
no omission of duty owing to the decedent, it can
be considered wrongful or negligent at the suit of
the heirs of the decedent. They claim under him,
and they can recover only in case he could have
recovered damages had he not been killed, but only
injured. The company is not under two different
measures of obligation--one to the passenger and
another to his heirs. * * * "
See also, Fisher v. Msla. White Pine v. Mich. Mut. Co., 164
Mont. 41, 518 P.2d 795.
In the instant case, Sylvia Meyers could not recover for
injuries should she have lived, therefore her son cannot recover
for wrongful death due to the fact she died.
The husband's insurer, appellant here, contends the
district court erred in finding the household exclusion in the
husband's automobile liability insurance policy was void as being
contra to public policy.
The policy provides:
"This insurance does not apply under Coverage A
to Bodily injury to any insured or member of the
family of the insured residing in the same house-
hold as the insured."
If this Court had found the doctrine of interfamily tort
immunity to be void, the validity of the policy provision would
r e q u i r e f u r t h e r examination. S i n c e w e have h e l d t h e d o c t r i n e
r e m a i n s v a l i d i n Montana, t h e u n d e r l y i n g b a s i s f o r t h e house-
h o l d e x c l u s i o n remains v a l i d .
The household e x c l u s i o n , on i t s f a c e , h a s been h e l d by
t h i s C o u r t a s n o t b e i n g a g a i n s t p u b l i c p o l i c y i n Lewis v.
Mid-Century I n s . Co. 152 Mont. 328, 449 P.2d 679. W e reaffirm
t h a t holding.
The i n s u r a n c e company i s n o t l i a b l e t o t h e e s t a t e o f
S y l v i a Meyers, t h u s it h a s no d u t y t o d e f e n d h e r c l a i m a g a i n s t
t h e e s t a t e o f Herman Meyers, n o r t o d e f e n d t h e c l a i m o f t h e son
a g a i n s t t h e e s t a t e o f Herman Meyers. The d u t y of t h e i n s u r a n c e
company t o d e f e n d i s l i m i t e d o n l y t o t h o s e f a c t s which a r e p a r t
of t h e covered r i s k . Atcheson v. S a f e c o I n s u r a n c e Co., 165 Mont.
239, 527 P.2d 549, 31 St.Rep. 839. In the instant case the f a c t s
s e t f o r t h i n t h e c o m p l a i n t a r e excluded from t h e c o v e r e d r i s k by
t h e household e x c l u s i o n , t h e r e f o r e t h e i n s u r a n c e company h a s no
duty t o defend.
The o r d e r o f t h e d i s t r i c t c o u r t i s r e v e r s e d . The c a u s e
i s remanded t o t h e d i s t r i c t c o u r t w i t h d i r e c t i o n s t o e n t e r an
/
W e concur: /
u Jus ices