Lucero v. Valdez

McGREGOR, Judge,

dissenting.

Because I would hold that the trial court correctly applied Utah law to the question of interspousal immunity and that Utah has not abrogated the law of intrafamily immunity in negligence actions between spouses, I respectfully dissent.

The majority recognizes, and I agree, that Utah, as the domiciliary state of the parties to this action, is the state of most significant relationship and that Utah law therefore should govern the rights and liabilities of the parties.8 Our obligation, as the court in a sister jurisdiction confronting a conflict in laws, is to decide and apply the current state of Utah law. We have neither authority nor reason to develop or extend Utah’s law. Rather, we must respect and give effect to the public policy choice made by Utah on the question of interspousal immunity, even though it differs from the public policy choice made by Arizona on that question.

I.

My analysis of Utah decisions leads me to conclude that, unlike Arizona, Utah recognizes the doctrine of interspousal immunity in negligence actions. Although the majority finds much uncertainty in Utah law, that state has never abolished the doctrine in negligence actions. Furthermore, the Utah Supreme Court, in its most recent decision related to interspousal immunity,9 clearly acknowledges that Utah has not changed its position on this issue.

In Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963), the Utah Supreme Court expressly held that interspousal immunity barred tort actions between husband and wife. Seventeen years later, in Stoker v. Stoker, 616 P.2d 590 (Utah 1980), the same court held that interspousal immunity did not bar an action for personal injuries resulting from an intentional tart. Stoker did not, however, abolish interspousal immunity in actions for negligence. Subsequent Utah decisions provide no reason to conclude otherwise. E.g., Noble v. Noble, 761 P.2d 1369, 1375 & n. 7 (Utah 1988) (supreme court restored ex-wife’s claim of intentional tort; distinguishing question whether Stoker abrogates negligence claims); Forsman v. Forsman, 779 P.2d 218, 219 (Utah 1989) (in a similar factual setting, the Utah Supreme Court acknowledged the doctrine of inter-spousal immunity, citing Rubalcava, but applied California law to litigants domiciled in California). Until Utah abolishes the doctrine, general principles of jurisprudence lead me to the conclusion that the doctrine remains in effect.

I believe the Utah court’s decision in Forsman, the most recent Utah decision to speak to the issue of interspousal immunity, critically undermines the majority’s conclusion that current Utah law has abolished inter-spousal immunity in negligence actions. In Forsman, the Utah Supreme Court reviewed a trial court’s order granting summary judgment against a plaintiff domiciled in California. The trial court, addressing the precise question of Utah law at issue here, held that the plaintiffs negligence “action against her husband was barred by the doctrine of inter-spousal immunity____” 779 P.2d at 218. On review, the supreme court did not find the trial court erred in applying the doctrine of interspousal immunity to a negligence action. Rather, the court concluded that “Utah law should not be applied” to determine the issue *321of interspousal immunity. In reaching that decision, the court first referred specifically to Rubalcava, which upheld the doctrine of interspousal immunity. The court then noted that California, the state of the parties’ domicile, had abrogated interspousal immunity. Id. at 219. Having established that distinction in law, the court undertook a detailed analysis of the very conflicts-of-law provisions of the Restatement that the majority regards as central to defining our approach in this action. After considering the Restatement and the law of several other jurisdictions, including Arizona, the Utah court adopted the Restatement rule for choice of law. Accordingly, the court reversed and remanded, instructing the trial court “to apply the law of the domicile on the issue of interspousal immunity.” Id. at 220.

The majority would negate the impact of Forsman by finding two ways to read that decision. The first interpretation, which I find more likely but which the majority rejects, is “to suppose that the [Utah Supreme Court] would not have considered the choice of law between California and Utah unless it had concluded that its own law differed from that of California.” Maj. op. at 317, 884 P.2d at 203. By rejecting that interpretation, the majority fails to apply established choice-of-law principles. When an action raises a potential conflict of law, the first question a court must address is “whether there is a true conflict between the laws of the two jurisdictions on the issue presented by the litigation.” Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1506 (9th Cir.1993). No true conflict exists unless “the laws of the two jurisdictions differ and both states have a legitimate interest in having their law apply.” Id., quoting Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir.1987). If no conflict exists on the controlling issue, the court need not address the choice-of-law issue. Utah applied that approach in St. Paul Fire and Marine Ins. v. Commercial Union Assurance, 606 P.2d 1206 (1980). In that case, the appellant argued that Wyoming law, rather than Utah law, should apply to questions of contract interpretation. The court rejected the invitation to consider Wyoming law, finding “no conflict of laws issue which necessitates a decision on choice of law.” Id. at 1208, n. 1.

The same analysis applies to the decision in Forsman. The Utah court had no reason to consider choice-of-law issues unless a conflict existed between Utah and California law on the immunity issue. The court had no reason to direct the trial court to consider the issue under California law on remand unless doing so could produce a different result from that caused by applying Utah law. Contrary to the suggestion of the majority, the court gives no indication whatever that Utah law is unsettled; it simply defers to California in an area in which its law conflicts with that of Utah.

Unlike the majority, I do not believe Stoker, on which the court relies heavily, can be interpreted as a sweeping abrogation of interspousal immunity in all instances. In Stoker, the court referred to Wayne F. Foster, Annotation, Modem Status of Inter-spousal Tort Immunity in Personal Injury and Wrongful Death Actions, 92 A.L.R.3d 901, 923 et seq. (1979), which discusses abrogation of and exceptions to immunity. See Stoker, 616 P.2d at 592. Significantly, the cited section includes a lengthy emanation about exceptions for intentional torts, the issue specifically addressed in Stoker. Foster, 92 A.L.R.3d at 926-27. Further, the Stoker court expressly reaffirmed Taylor v. Patten, 2 Utah 2d 404, 275 P.2d 696 (1954), which permitted actions between spouses for intentional torts occurring during the interlocutory period of a divorce action while the spouses were living apart. Stoker, 616 P.2d at 592. These statements suggest that the Stoker court intended to do exactly what its opinion says: limit the abrogation of inter-spousal immunity to intentional tort actions.

I must conclude that had the Utah court wished to join those states that have abolished interspousal immunity for negligence actions, it could have done so in Stoker, in Noble, or in Forsman. The combination of the Stoker court’s emphasis on permitting intentional tort actions, the Noble court’s distinction between immunity for negligent acts and immunity for intentional acts, and the recognition in Forsman that Utah’s law con*322flicts with that of states that have abolished interspousal tort immunity convinces me that Utah has chosen not to join the vast majority of jurisdictions that have abolished inter-spousal immunity in negligence actions.

II.

As an alternative basis for its decision, the majority concludes that, because an “element of guesswork” inheres in predicting the future course of Utah law, we can reverse summary judgment by falling back on Arizona law. Again, I respectfully dissent.

In the often murky universe of choice-of-law questions, few principles are as firmly established as that which applies to this action. . The clear view of the Restatement (Second) of Conflict of Laws and of Arizona law is that the state of the parties’ domicile has the most significant interest in determining questions of intrafamily immunity, and the law of the domiciliary state controls, absent unusual circumstances not present here.

The Restatement repeatedly recognizes the overarching interest of the domiciliary state in deciding intrafamily immunity issues. Section 6(2) of the Restatement defines basic choice-of-law principles. Comment / to that section states: “[T]he state of the spouses’ domicile is the state of dominant interest when it comes to the question whether the husband should be held immune from tort liability to his wife (see § 169).” Comment d to section 145, which instructs as to the principles applicable to selecting the state with the most significant relationship to the rights of parties with respect to issues in tort, states in relevant part:

Experience and analysis have shown that certain issues that recur in tort cases are most significantly related to states with which they have particular connections or contacts____
[T]he local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability____ An example is the issue of intra-family immunity, which, as stated in § 169, is usually determined by the local law of the state of the spouses’ common domicil.

Section 169, which specifically governs intrafamily immunity, similarly provides: “The applicable law [to determine whether one member of a family is immune from tort liability to another member of the family] will usually be the local law of the state of the parties’ domicile.” Comment b supplies further emphasis: “Whatever the true explanation, the state of the parties’ domicil will almost always be the state of dominant interest, and, if so, its local law should be applied to determine whether there is immunity in the particular case.”

If additional authority were required for the principle that we should apply the law of the domiciliary state to decide this issue of immunity, the Arizona Supreme Court supplied that authority in Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968). There the court considered whether to apply the law of Arizona or that of New York to determine a question of interspousal tort immunity. The “significant contacts” of the states were precisely as they appear here: Arizona was the place of injury and place of conduct and New York was the parties’ domicile and the place at which the parties’ relationship was centered. The court held without difficulty that New York’s law controlled: ‘With domicile to be given the greatest weight, the determination as to which state has the most significant contacts with the issue of interspousal tort suits becomes evident. New York law ... should be applied.” Id. at 566, 447 P.2d at 258.

The majority recognizes that Utah is the state of “most significant relationship” and that the domiciliary state’s law generally determines the disposition of intrafamily tort actions. It finds an alternative basis for its decision to reverse the trial court’s summary judgment, however, in the seldom-used “ease in determination” general factor set out in Restatement 6(2)(g) and two cases in which the factor receives mention, as one factor of many.10

*323I believe the majority’s reliance upon Restatement 6(2)(g) is misplaced for a number of reasons. First, I am aware of no instance, and neither the parties nor the majority provides any, in which a court relied upon section 6(2)(g) to overcome a principle as strongly established as that applying domiciliary law to issues of intrafamily immunity. Indeed, read in the context of all the factors recited by Restatement 6(2), section 6(2)(g) appears to be the least important. In contrast to the lengthy comments explaining the other factors, the Restatement states simply:

Ideally, choice-of-law rules should be simple and easy to apply. This policy should not be overemphasized, since it is obviously of greater importance that choice-of-law rules lead to desirable results. The policy does, however, provide a goal for which to strive.

Restatement § 6 cmt. j. Given the Restatement’s emphasis on determining the state having the most significant relationship to the litigants and the strong presumption for applying the law of the state of domicile, the majority should not “overemphasize” section 6(2)(g) as the sole factor directing this court to apply Arizona law to this case.

Moreover, neither of the two cases cited by the majority in support of its decision to apply Arizona law involves a choice-of-law analysis similar in fact or law to that presented here. In both cases, the court considered section 6(2)(g) in cases in which other choice-of-laws factors were relatively even.

In Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F.Supp. 358 (D.Mass.1985), aff'd, 814 F.2d 775 (1st Cir.1987), the two plaintiffs, one with its principal place of business in Massachusetts and the other in New Jersey, filed a diversity action in Massachusetts federal court suing Du Pont, a Delaware corporation. The Flotech court recognized that each state had an interest in the matter. Although the court found that Massachusetts law provided easily determinable and clear legal precedent for the plaintiffs’ product defamation action, it based its decision to apply the forum law equally on the section 6(2) factors of certainty, predictability, and uniformity of result and on the basic policies of tort law. The court also noted that the needs of the interstate system pointed to no particular state and found that “[o]n balance, there is no compelling reason not to apply Massachusetts law.” Id. at 363.

The Flotech court’s rationale does not apply here because this case does not present the same even balance of factors for section 6 analysis. Flotech simply did not involve a situation in which any clear preference existed for applying one state’s law. In further contrast, in this case the basic policy of inter-spousal tort law and the needs of the interstate system point directly to application of the law of Utah as the state of domicile rather than Arizona, the forum state. Given the strong preference for applying the law of the state of domicile, I see a compelling reason not to apply Arizona law in this case.

The factual and legal concerns in Baird v. Bell Helicopter Textron, 491 F.Supp. 1129 (N.D.Tex.1980) are equally distinct from those in this case. Baird, an action filed in Texas, presented a choice-of-laws question involving Canada, the domicile of the plaintiffs/third party defendants, and Texas, the domicile of the defendant and the site of manufacture of the helicopter involved in a crash from which this products liability claim arose. The court analyzed the relative interests of Texas and Canada by applying the factors listed in Restatement 6(2). It concluded that Texas law would apply to the products liability claim due to the significant policy interests advanced by applying the law of the forum state, Texas, and the absence of similar policy concerns under Canadian law. Id. at 1140-1141. The court also found that the ease in determining and applying Texas law in a Texas court, as opposed to the law of a foreign legal system, Canada, supported application of the forum law. Id. at 1141.

In obvious contrast, the intrafamily policy interests involved in this case strongly favor Utah law over Arizona law. The majority recognizes that Arizona has relatively minor competing policy concerns and even concedes that these interests would not normally supersede the preference for domiciliary law in intrafamily immunity issues. Additionally, the concerns for ease of determination and application in Baird derive primarily from that court’s conclusion that British Colum*324bia’s policy concerns would be better served by applying Texas law. Id. In contrast, Utah’s policy concerns related to interspousal immunity would be undermined by applying Arizona law to permit litigation to continue. I believe the majority has extended section 6(2)(g) far beyond its intended bounds.

III.

I agree with the majority that Utah has not explicitly determined whether the doctrine of interspousal immunity applies to premarital torts. We must defer, however, to the determination of the Utah Supreme Court that interspousal immunity furthers the public policies of promoting marital harmony and eliminating the “temptation to collusion.” Rubalcava, 384 P.2d at 391-92. Utah courts have never disclaimed this public policy rationale, and those reasons apply with equal force to actions between spouses involving conduct that occurred prior to the marriage. That conclusion is consistent with the approach taken by the Delaware Supreme Court in another of the minority of jurisdictions that has not abolished inter-spousal tort immunity. The Delaware court noted that in determining the point in a relationship the doctrine of interspousal tort immunity applies, the courts must look to the marital status of the parties at the time their rights are judicially determined, not at the time of the injury or at the time the action was filed. Hudson v. Hudson, 532 A.2d 620, 624 (Del.1987) (specifically holding that the spouses’ subsequent divorce “remove[d] the bar against spousal immunity” to interspousal litigation); see also Taylor, 275 P.2d at 700 (Crockett, J., concurring) (acknowledging that the policy factors supporting interspousal immunity essentially do not exist after the couple has filed for divorce). Significantly, the Hudson court acknowledged the same policy concerns of avoiding fraud and collusion and maintaining family peace and harmony as motivate the Utah courts. Hudson, 532 A.2d at 622.

Because the parties in this case are currently married, applying the doctrine of immunity furthers Utah’s expressed interest in protecting marital harmony and preventing fraud and collusion, despite the premarital nature of Mrs. Lucero’s injury. Under these facts, I conclude that the doctrine of inter-spousal immunity applies to preclude a negligence action based on a premarital tort.

IV.

For the foregoing reasons, I would affirm the trial court’s grant of summary judgment.

. The majority does reserve an alternative basis, which I discuss below, for its decision to overturn the trial court’s judgment.

. Forsman v. Forsman, 779 P.2d 218 (Utah 1989).

. Section 6(2)(g) identifies the "ease in the determination and application of the law to be applied” as the final factors relevant to the choice of applicable law.