No. 13013 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant,

JAMES P. LEARY, etal., Defendant and Respondent.

Appeal from: District Court of the Second Judicial District, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: McKeon and Skakles, Anaconda, Montana Michael McKeon argued, Anaconda, Montana For Respondent: Scanlon and Connors, Anaconda, Montana Joseph C. Connors argued, Anaconda, Montana

Submitted: November 

### 4, 1975 Decided: 

### DEC

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## 1975

- Filed: JE~,JJ YI5Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from an order of the district court, Silver Bow County, granting a summary judgment in an action to declare the rights and duties of an insurance company. On July 27, 1973,Herman and Sylvia Meyers, husband and wife, were involved in an automobile accident approximately tenmiles southof Butte,Montana. Herman Meyers was driving the automobile, with Sylvia Meyers as a passenger. Through the alleged negligence of Herman Meyers, their automobile collided with another motor vehicle, killing Herman Meyers instantly. Sylvia Meyers survived for eleven days,dying onAugust 7, 1973,

as a result of injuries received in the accident. Two suitswere filed indistrict court. The first suit

was a separate cause of action by Edward Meyers, the son of Herman and SylviaMeyers, against Herman Meyer's estate, for thewrongful death of Sylvia Meyers. The second suitwas by Jack M. Scanlon, administrator of the estate of SylviaMeyers, formedical, hospital and funeral expenses and forpain and suffering. Both suits were based on the alleged gross negligence of HermanMeyers in the operation of the automobile. After the commencementof these suits, James P. Leary, administrator of Herman Meyers' estate, tendered the suitpapers to the insurance company to provide a defense under the terms of the automobile liability policy issued to Herman Meyers. The insurance company subsequently filed a complaint seeking a declaratory judgment as to its rights and duties under the insurancepolicy. After the answer was filed, all parties moved for a summary judgment. The district court granted respondents' motion and denied appellant's motion. The applicable portions of the summary judgmentprovide: "IT IS ORDERED that the death of Plaintiff's



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## -insured Herman H. Meyers, prior to the death of his surviving spouse terminated themarital relationship and the insurance policy defense

[interfamily immunity exclusion] relied upon by the Plaintiff as amatter of law. "IT IS FURTHER ORDERED that the insurance policy defense based upon the interfamily immunity doctrine relied upon by the plaintiff isvoid as contra to the public policy of this state and is discriminatory." The order also required the insurance company to defend the estate of Herman Meyers against claims of the son and the claim of the estate of Sylvia Meyers, and to pay up to its policy limits any amounts itmight become obligated to pay as a result of this accident. The insurance company appeals from this summary judgment. We have been asked to review the interfamily tort immunity doctrine as applied in Montana, and determinewhether it is void as contrary to public policy. This Court in State ex rel. Angvall v. Dist. Ct., 151 Mont. 483, 484, 444 P.2d 370,has always followed the rule that: 

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## * * * a wifemay notmaintain an action againsther husband for personal injuries

[inflicted]upon her by her husband while they aremarried." This position was first declared in Conley v. Conley, 92Mont. 425, 15 P.2d 922,and was reaffirmed in Kelly v. Williams, 94 Mont. 19, 21 P.2d 58, and Angvall. This rule is based on the common law rule prohibiting suits between husband and wife. Respondents ask that this Court reject the common law doctrine as being opposed to thepublic policy. The Oregon Supreme Court faced with a similar request regarding interfamily tort immunity in Smithv. Smith, 205 Or. 286, 287 P.2d 572, 578,held: "Thequestion presented is, therefore,whether this court should in a case of this kind express its own conclusionsas to the public policy of the state relative to this issue. In that connectionwe recognize that when the public policyof the state is clearly expressed by statute, itwill control, and that in general, questions of public policy are primarily, though not exclusively, for legislativedetermination." The Montana Legislature has enacted statutesgrantinga married woman the right to prosecute and defend actions in her

own name (section 36-110, R.C.M. 1947) and sue or be sued as though shewere sole (section36-128,R.C.M. 1947). Respondents argue these statutes modify the common lawdoctrine so as to allow tort suits between husband and wife. We do not agree. We believe the United States District Court for the District of Montana, in Duttonv. Hightower and Lubrecht Construction Co., 214 F.Supp. 298, 300, was correct in stating these statutes 

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## * * * are procedural and create no new rights,but only remove the common law disability of married women to enforce their rights otherwise created or existing." The Districtof Columbia Married Woman's Act was similarly viewed in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L Ed 1180, 1182,wherein the Supreme Court stated: "The statutewas not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tortwhich, at common law, must be brought in the joint names of herself and husband." The interveningdeath of HermanMeyers would not end the tort immunity as the cause of action arose during coveture, which is the critical time for imposition of the doctrine and defense. Angvall' supra. Respondents cite the minority rule allowing interspousal tort actionsby judicial modification of the common law rule,

as stated in Mosier v. Carney, 376 Mich. 532, 138 N.W.2d 343, and citations contained therein. See, also,Karell,Toward Abolition of InterspousalTort Immunity, 36 Mont.L.Rev. 251. We do not believe this is an area requiring judicialmodification of the common law to prevent great injustice. This is a questionof public policy best left to the legislativebranch of government which is the proper body to determine and set forth public policy. a Respondents argue that their rights to recover as/persona1 representativeof the deceased and as son of the deceased are independentof the potential cause of action by Sylvia Meyers against Herman Meyers and are not barred by the interfamily tort immunity doctrine. Section 93-2824,R.C.M. 1947,provides: "Anaction, or cause of action, or defense, shall not abate by death, or other disability of a party, or by the transfer of any interest therein, but shall in all cases,where a cause of action or defense arose in favor of such party prior to his death, or other disability,or transfer of interest therein, survive, and be maintained by his representativesor successors in interest; and in case such action has not been begun or defense interposed, the action may be begun or defense set up in the name of his representatives or successors in interest

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## *". This statute gives a derivative right of action to the representative as the language "where a cause of action or defense arose in favor of such party prior to his death" clearly indicates. The West Virginia Supreme Court in Wright v. Davis, 132W.Va. 722, 53 S.E.2d 335, 336, said of such a statute: 

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## * * * this statute gives a right of action to the personal representative of the deceased only in case the deceased might have maintained an action,but failed to do so, against a defendantwho is liable for damages." Sylvia Meyers could not have maintained a cause of action prior to her death due to the interfamily tort immunity doctrine, therefore no cause of action could flow to her personal representative. The husband's personal representativewould be able to avail himself of the defense of interfamily tort immunity, because the defense arose prior to his death, therefore it survived his death. The son claims wrongful death damages undersection 93-2810,R.C.M. 1947: "When the death of oneperson, not being a minor, is caused by thewrongful act or neglect of another,his heirs or personal representatives may maintain an action for damages against the person causing the death

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## *." If the son can recoverwrongful death damages under the statute, he would have a right superior to what the mother had during her lifetime. This Court has held in Melville v. ButteBalaklava Copper Co. 47 Mont. 1,12, 130 P. 441,quoting from Northern Pac. Ry. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L Ed 513, regarding workmen's compensation recoveries for wrongfuldeath:

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## * * *It cannot be that, if the death was caused by a rightful act, or an unintentional act with no omission of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and they can recover only in case he could have recovered damages had he not been killed,but only injured. The company is not under two different measures of obligation--one to the passenger and another to his heirs. 

## * * *" See also,Fisherv. Msla. White Pinev. Mich. Mut. Co., 164 Mont. 41, 518 P.2d 795. In the instant case, SylviaMeyers could not recover for injuries should she have lived, therefore her son cannot recover for wrongful death due to the fact she died. The husband's insurer,appellant here, contends the district court erred in finding the household exclusion in the husband's automobile liability insurance policy was void asbeing contra to public policy. The policy provides: "This insurancedoes not apply under CoverageA to Bodily injury to any insured or member of the family of the insured residing in the same household as the insured." If this Court had found the doctrine of interfamily tort immunity to be void, the validity of the policy provision wouldrequire further examination. Sincewe have held the doctrine remains valid inMontana, the underlying basis for the household exclusion remains valid. The household exclusion, on its face, has been held by thisCourt asnot being againstpublic policy inLewis v. Mid-Century Ins. Co. 152 Mont. 328, 449 P.2d 679. Wereaffirm that holding. The insurance company isnot liable tothe estateof SylviaMeyers, thus it has no duty todefend her claim against the estateof Herman Meyers, nor todefend the claim of the son against the estateof Herman Meyers. The duty of the insurance company todefend is limited only tothose factswhich arepart of the covered risk. Atcheson v. Safeco Insurance Co., 165Mont. 239, 527 P.2d 549, 31 St.Rep. 839. In the instant case the facts setforthinthe complaint areexcluded from the covered riskby the household exclusion, therefore the insurance company has no duty todefend. The order of the districtcourt isreversed. The cause isremanded tothe districtcourtwith directions toenter an /

Weconcur: 

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Jus ices 

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