Wald v. City of Grafton

LEVINE, Justice,

specially concurring.

Ms. Wald argued strenuously and convincingly that her claim for loss of consor*913tium 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 appel-lee pointed out, beside the point.

The real question is whether North Dakota Workers Compensation law, which undoubtedly limits the injured worker to those rights and benefits contained within the workers compensation statutes, similarly limits the spouse of the injured worker, thereby barring a claim for loss of consortium. In my view, the majority’s conclusion, based upon the plain, sweeping language of the statutes, is correct that the exclusive remedy provisions of our workers compensation law bar Wald’s claim for lost consortium.

Perhaps anticipating the result preordained by the clear and broad language of the workers compensation statutes, Wald urged that we “interpret the exclusive remedy rule in light of modern circumstances.” Her point is that to reach the result we have, is to honor an archaic and discredited view that a husband and wife are a single entity and that entity is the husband. See 1 W. Blackstone, Commentaries 422 (“By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband”). Hopefully, Blackstone’s enunciation of the law has been relegated to an infamous place in history. The reason I write specially is to postulate that the result of our statutory interpretation is well attuned to “modern circumstances.”

Wald argued that it is unfair (if not unconstitutional) to strip a spouse of her independent claim for lost consortium without providing a quid pro quo. Asserting she has received nothing, Wald claims “foul.” I believe Wald is mistaken in her calculation that she received nothing. In recent times, this Court has viewed marriage as an economic partnership, with both spouses’ contributions to the marital enterprise entitling them to share in the marital assets as partners upon the dissolution of the partnership. Erickson v. Erickson, 384 N.W.2d 659, 662-63 (N.D.1986) (Levine, J., concurring); Fischer v. Fischer, 349 N.W.2d 22, 24 (N.D.1984); Rummel v. Rummel, 265 N.W.2d 230, 236 (N.D.1978). So too, when one spouse is injured during the course of employment and thus entitled to workers compensation benefits, those benefits inure to the benefit of the economic . partnership of husband and wife. In return for those benefits, all remedies of both partners, other than workers compensation benefits, are sacrificed, including the claim for lost consortium. While we may question the sufficiency of the awards provided under workers compensation, we should not overlook the benefits of the protection to injured workers and their spouses from the expense, uncertainty and delays of litigation that would be entailed in all cases, absent workers compensation, and the specter of defeat in those cases where there was failure to establish negligence against an employer or co-employee or where the injured employee was contrib-utorily negligent.

That the creators of workers compensation in North Dakota probably shared Blackstone’s view is irrelevant. Their creation, the law under Title 65, remains appropriately consonant with current legal doctrine and social attitudes on family and *914the enhanced status of women. If I am mistaken and the law is outmoded and sexist, then the legislature should be called to account.