No. 89-276
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
--
SUZANNE KRUEGER GUNNING,
Plaintiff and Appellant,
-vs-
GENERAL MOTORS CORPORATION,
a Delaware Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dennis Patrick Conner, Great Falls, Montana
Erik Thueson, Helena, Montana
For Respondent:
Curtis G. Thompson and John Stephenson, Jr.; Jardine,
Stephenson, Blewett & Weaver, Great Falls, Montana
Kent Hanson, Richard A. Bowman, Kim M. Schmid; Bowman
and Brooke, Minneapolis, Minnesota
Submitted on Briefs: Aug. 10, 1989
Decided: September 7, 1989
Filed:
L - \ n
/ Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
Appellant Suzanne Krueger Gunning appeals the order of
the District Court of the Eighth Judicial District, Cascade
County, denying her motion for a new trial. The District
Court found the record supports the jury's zero damages
verdict on her claim for loss of consortium. We affirm.
Suzanne frames one issue for appeal: May a jury award
no damages on a loss of consortium claim where the injured
party has suffered significant injuries, has been awarded
damages for those injuries, and the injured party's spouse
brings a claim for loss of consortium?
On February 11, 1985, Andrew Krueger and Suzanne Krueger
Gunning filed this action against General Motors Corporation
.
(GM) Andrew was injured in an accident involving a General
Motors ' vehicle that rendered him a quadriplegic. Andrew's
claim was based on strict product liability for failure to
warn and unreasonably dangerous design; Suzanne's claim was a
derivative action for loss of consortium arising out of
Andrew's injuries.
Suzanne and Andrew met in Texas in 1979. The couple
exchanged vows informally, Suzanne began using Andrew's last
name, and they held themselves out as married. They had a
child in June 1980 and moved to Montana shortly afterward.
At the time .of the accident, the couple and their child were
all living together in Great Falls. Thirteen days after the
accident, Andrew and Suzanne formalized their marriage in a
civil ceremony performed while Andrew was in the hospital.
The evidence presented at trial demonstrated that
because of the severity of his injuries, Andrew requires a
daily minimum of eight to ten hours of hands-on attendant
care with someone available to him on a 24-hour basis. After
the accident, Suzanne took an eight month leave of absence
from her job in order to care for Andrew. After returning to
work, she continued to take care of him until November, 1985,
when they were legally separated. The dissolution of their
marriage became final on April 3, 1986, a little over a year
after the filing of this action. After Suzanne left,
Andrew's care was taken over by his parents.
At the close of trial, GM moved for a directed verdict
based on lack of evidence to support the existence of a
marriage relationship prior to the couple's formal marriage
in the hospital. The District Court denied the motion, held
there was a common law marriage, and instructed the jury that
if they reached a verdict favoring Andrew they could assign a
value to Suzanne's loss of consortium in a separate verdict.
Although there was much evidence presented at trial regarding
the type of care Andrew required and Suzanne provided
following the accident, there was little testimony regarding
the nature of the marital relationship enjoyed by Andrew and
Suzanne prior to the accident. At trial, the jury awarded
Andrew $1,293,430.00 in damages on his personal injury claim
and zero damages to Suzanne on her claim for loss of
consortium. Suzanne moved the District Court to grant a new
trial to reconsider the amount of her damages, the court
denied her motion and upheld the jury's verdict. The issue
is now before this Court on appeal.
In making our determination, we review this case in
accordance with the appropriate standard. It is well
established that when determining whether the evidence
supports the trial court's verdict the reviewing court will
only review the evidence to decide if the verdict is
supported by substantial evidence. Tope v. Taylor (Mont.
1988), 768 P.2d 845, 45 St.Rep. 2242; Weinberg v. Farmer's
State Bank of Worden (1988), 752 P.2d 719, 45 St.Rep. 391;
Wyman v. Dubray Land Realty (Mont. 1988), 752 P.2d 196, 45
St. Rep. 621; Clark v. Norris (Mont. 1988), 734 P.2d 182, 44
St. Rep. 444. This Court will not substitute its judgment
for that of a jury with respect to the amount of damages
unless it appears that the award is so grossly out of
proportion to the injury received so as to shock the
conscience of this Court. Kelleher v. State (1972), 160
Mont. 365, 503 P.2d 29; Salvail v. Great Northern Ry. Co.
(1970), 156 Mont. 12, 473 P.2d 549; Sheehan v. DeWitt (19671,
150 Mont. 86, 430 P.2d 652.
A cause of action for loss of consortium of the deprived
spouse is separate and distinct from the claim of the injured
spouse and the basis for such a claim lies in the Montana
statutes in which the husband and wife contract for
obligations of mutual respect, fidelity, and support. Bain
v. Gleason (1986), 223 Mont. 442, 726 P.2d 1153. Section
40-2-101, MCA. Thus, a woman by her marriage obtains a
contractual right to consortium. Dutton v. Hightower and
Lubrecht Construction Co. (D.Mont. 1963), 214 F.Supp. 298,
300. Consortium includes a legal right to the aid,
protection, affection and society of the other spouse. Bain,
726 P.2d at 1155; Dutton, 214 F.Supp. at 300; Wallace v.
Wallace (1929), 85 Mont. 492, 516, 279 P. 374, 382. Suzanne
established to the trial court's satisfaction a valid
marriage, Suzanne then was entitled to offer proof that her
contractual right to the aid, protection, affection, and
society of Andrew was adversely affected by the accident.
During trial, Suzanne testified concerning the care she
provided Andrew and the emotional hardship it caused her.
Very little evidence was presented concerning the nature of
their marital relationship prior to the occurrence of the
accident. The only evidence on the record of this
relationship consists of the following testimony:
Question: What sort of marriage did you and
Andy have before his accident occurred?
Answer: We had a very happy and healthy
marriage. Very active. We went fishing and
camping and hunting and swimming and dancing a lot.
Assessing any damages to Suzanne's consortium necessitates
some proof of the established marital lifestyle of the couple
prior to the accident. See generally, Am.Jur. 30 POF 73 89
17-18. As established in Bain, 726 P.2d at 1154-55, a claim
for loss of consortium is based on the husband and wife
contracting for obligations of mutual respect, fidelity, and
support; thus it follows that the claimant must offer proof
that these mutual obligations were fulfilled prior to the
other spouse's injury, and that due to the injury fulfillment
of these obligations has been impaired. In this case no
evidence other than the testimony quoted above was offered to
establish the nature of the marital relationship enjoyed by
Andrew and Suzanne prior to the accident. The only evidence
that intimates that this relationship was impaired by the
accident is Suzanne's testimony, "we were constantly
fighting. The stress was too much. I had to get out of
there for our daughter's sake. We did no longer get along."
This cursory testimony does not rise to the level of
substantial credible evidence upon which the jury could base
an award of damages for Suzanne's alleged loss of consortium.
Suzanne relies on several cases from other jurisdictions
in contending that an award of zero damages for her claim is
improper, thus entitling her to a new trial. - e.g.,
See,
Fleming v. Albertson's, Inc. (Fla.Ct.App. 1988), 535 So.2d
682; Stroud v. Govreau (Mo.Ct.App. 1973), 495 S.W.2d 682;
Nelson & Budd, Inc. v. Brunson (1985), 173 Ga.App. 856, 328
S.E.2d 746. However, these cases hold that a zero damages
verdict on a consortium claim is improper when there was
substantial, undisputed, and unrebutted evidence concerning
the impact the injury had on the marital relationship,
Fleming, 535 So.2d at 684, when there was substantial
evidence to support the claim for loss of consortium, Stroud,
495 S.W.2d at 684, (overruled on other grounds), and when the
spouse has presented unrefuted evidence as to loss of
consortium. Nelson, 328 S.E. 2d at 749. (Emphasis added. )
In the present case there was no substantial and unrefuted
evidence regarding the injury's impact on the marriage, thus
Suzanne's reliance on these cases is misplaced.
While some negative effects on the marriage of Andrew
and Suzanne may be implied as a result of the accident, a
jury does not base an award of damages on implication or
speculation, an award must be based on the substantial
evidence presented at trial. We must review the record to
decide if the verdict is supported by substantial evidence, -
Tope, 768 P.2d at 849; Weinberq, 752 P.2d at 721-722; Wyman,
752 P.2d at 199; Clark, 734 P.2d at 184, and we must review
the evidence in the light most favorable to the prevailing
party, here the defendant. Stewart v. Fisher (Mont. 19891,
767 P.2d 1321, 46 St.Rep. 116; Rogers v. Hilger Chevrolet Co.
(1970), 155 Mont. 1, 465 P.2d 834. In light of the lack of
any substantial evidence on the record concerning both the
nature of and injury to the Krueger's marital relationship,
the jury was entitled to conclude that Suzanne had not met
her burden of proving damages on her claim, and the District
Court properly denied the motion for new trial.
We affirm the District Court.
We Concur:
' Chief' Justice b"