Noone v. Fink

No. 85-601

IN THE SUPREME COURT OF THE STATE OF MONTANA

AUDREY D. NOONE,
Plaintiff and Petitioner,

ROBERT RAYMOND FINK, WALLACE J. PAYER
and THOMAS J. NOONE
Defendants and Respondents.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Plaintiff/Petitioner:
Sandall, Cavan, Smith, Howard & Grubbs,
W. Corbin Howard, Billings, Montana
For Defendants/Respondents: Robert Raymond Fink
and Wallace J. Payer

Alexander & Baucus; J. David Slovak,
Great Falls, Montana
For ~efendant/Respondent:Thomas J. Noone
Moulton, Bellingham, Longo & Mather; Douglas James,
Billings, Montana

Submitted on Briefs: March 21, 1986
Decided: ~ u l y17, 1986

JbL 1 1 19Ifj
Filed:

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k *,L Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

This is an original proceeding for a declaratory
judgment on two certified questions from the United States
District Court sitting in Billings.
There are two questions certified from the United States
District Court: first, does the doctrine of interspousal
tort immunity bar the claim of a wife-passenger against her
husband-driver for her husband's negligence in the operation
of a motor vehicle? Second, if so, does the doctrine of
interspousal tort immunity bar the cross-claims of the
husband's codefendants and joint tortfeasors against the
defendant husband for indemnity and/or contribution?
Audrey and Thomas Noone were married in 1974. They love
each other and plan on remaining married. Both are employed
and commingle their incomes in a single bank account. Audrey
Noone was injured in a car accident near Broadus in 1982.
Audrey was a passenger in a Bronco being driven by her
husband, defendant Thomas Noone. As the Bronco attempted to
make a left turn, a following truck attempted to pass and the
vehicles collided. The truck was owned by defendant Wallace
Payer and driven by defendant Robert Fink.
This personal injury action is maintained by Audrey
Noone against defendants, Payer, Fink, Noone. Audrey Noone
alleges the accident and her injuries were caused by the
joint negligence of: each defendant. Fink and Payer have
denied any negligence on their part and cross-claimed against
defendant Noone seeking indemnity and/or contribution.
Defendant Noone has also denied any negligence on his part
and cross-claimed against Fink and Payer seeking indemnity
and/or contribution.
Defendant Noone, who is being represented by his
insurance company, filed a motion for summary judgment based
on the doctrine of interspousal tort immunity. Fink, Payer,
and Audrey Noone opposed the motion. At the conclusion of a
hearing on the motion for summary judgment, the Federal
District Court agreed to certify the questions to this Court.
The first question certified to us is whether the
doctrine of interspousal tort immunity bars the claim of a
wife-passenger against her husband-driver for negligence in
the operation of a motor vehicle. In Miller v. Fallon
County, et al. (1986, No. 85-350) we abolished the defense of
interspousal tort immunity because the historical reasons for
that immunity are no longer valid. Therefore the doctrine no
longer operates as a bar to negligence claims against
spouses.
The second question certified to us is whether the
doctrine of interspousal tort immunity bars the cross-claims
of the husband's codefendants and joint tortfeasors against
the defendant husband for indemnity and/or contribution.
Since we have abrogated the doctrine of interspousal tort
immunity, the contribution statute, S 27-1-703, MCA,
controls. It states:
Whenever the negligence of any party in any action
is an issue, each party against whom recovery may
be allowed is jointly and severally liable for the
amount that may be awarded to the claimant but has
the right of contribution from any other person
whose negligence may have contributed as a
proximate cause to the injury complained of.
Therefore the husband's co-defendants and joint tortfeasors
may cross-claim against him for ind.emnity and/or
contribution, under $ 27-1-703, MCA. However, we make no
comment as to the applicability of indemnity theories in

automobile accident cases. See Panasuk v. Seaton (u.s.D.C.
Mont. 1968), 277 F.Supp. 979 and Consolidated Freightways
Corp. of Del. v. Osier (1979), 185 Mont. 439, 605 P.2d 1076.

We Concur:
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