No. 85-601

IN THE SUPREME COURT OF THE STATE OF MONTANA

AUDREY D. NOONE, Plaintiffand Petitioner,

ROBERT RAYMOND FINK,WALLACE J. PAYER and THOMAS J. NOONE Defendantsand 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 andWallace J. Payer Alexander & Baucus; J. David Slovak, GreatFalls,Montana For~efendant/Respondent:Thomas J. Noone Moulton, Bellingham,Longo & Mather; Douglas James, Billings,Montana

Submitted onBriefs: March 21, 1986 Decided: ~uly 17,1986 

### JbL1119Ifj Filed: 

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# *,L 8 ClerkMr. 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. Thereare two questions certified from theUnited 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 defendanthusband for indemnity and/or contribution? Audrey and ThomasNooneweremarried in 1974. They love each other and plan on remainingmarried. Both are employed and commingle their incomes ina singlebank 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 topass and the vehicles collided. The truckwas owned by defendant Wallace Payer and drivenby 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 negligenceon theirpart and cross-claimed against defendant Noone seeking indemnity and/or contribution. Defendant Noone has also denied any negligence on his partand 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 judgmentbased
on the doctrine of interspousaltort immunity. Fink, Payer, and Audrey Noone opposed themotion. At the conclusion of a hearing on the motion for summary judgment, the Federal District Court agreed to certify thequestions to thisCourt. 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 immunitybecause the historical reasons for that immunityare no longervalid. 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 complainedof. 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 nocomment 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: f'