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: ~uly 17, 1986 

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Filed: 

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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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