No. 89-276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

- - 

SUZANNE KRUEGER GUNNING, 

Plaintiff and Appellant, 

-vsGENERAL 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 

Filed: 

Submitted on Briefs: Aug. 10, 1989 

Decided: September 7, 1989 

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. - See, e.g., 

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"