Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah
by Stephen D. Kelson
On January 2, 2001, newlyweds Steven and Aimee Ellis were traveling by car on their honeymoon. Near Shelley, Idaho, Mr. Ellis lost control of the vehicle and crossed the center median into oncoming traffic, resulting in a collision with a two-ton Mitsubishi truck. Mr. Ellis died as a result of the accident. Mrs. Ellis was hospitalized with serious injuries, including a severe head injury, numerous broken bones, internal injuries, and emotional trauma. Four years later Mrs. Ellis filed a personal injury action against her husband’s estate for negligence, in the Third District Court, Salt Lake County, State of Utah.1 The Estate brought a motion to dismiss Mrs. Ellis’s claim, in part, asserting that it was barred by the doctrine of interspousal immunity.2 The district court granted the Estate’s motion in part, dismissing Mrs. Ellis’s claim of negligence and concluding with reluctance that interspousal immunity is abrogated in Utah only with respect to intentional torts. Mrs. Ellis appealed the decision.
While historically the court has allowed legal actions between spouses with respect to contract and property law3 and for intentional acts,4 many practitioners have argued that no Utah case had specifically permitted an action based on ordinary negligence. On September 21, 2007, the Utah Supreme Court issued its decision in the case of Ellis v. Estate of Ellis,5 ending any dispute as to whether the doctrine of interspousal immunity still exists in Utah. In a unanimous decision, drafted by Justice J. Durrant, the court held that interspousal immunity has been abrogated in Utah with respect to all claims.
This article briefly examines the Utah Supreme Court’s decision in Ellis v. Estate of Ellis. First it reviews the history of the doctrine of interspousal immunity. Second, it examines the “tortuous path” of the doctrine under Utah law and the arguable uncertainty and misunderstanding regarding its application. Finally, it examines the supreme court’s grounds for its reaffirmation of the abrogation of interspousal immunity, effectively slamming the coffin lid on the doctrine of interspousal immunity in Utah.
The History of Interspousal Immunity
The doctrine of interspousal immunity is a creation of English common law, arguably based upon early Roman law and subsequent Biblical interpretation of marriage, where a husband and wife became “one flesh,” united in purpose and spirit, making it illogical to place the spouse of an injured party in an adversarial position.6 As stated in Blackstone’s Commentaries on the Laws of England:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing;…and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.7
This “coverture” or “spousal unity” theory placed a married couple’s legal identity in the husband, and prohibited one spouse from seeking a tort against the other for harm or injury, as the husband would legally have been both the plaintiff and the defendant in such litigation.8 This concept of common law coverture was adopted in the American colonies and continued well into the nineteenth century.
In the United States, during the latter half of the nineteenth century, states began to pass Married Women’s Property Acts (or “Married Women’s Acts”) which terminated the common law unity of husband and wife, and established by statute that married women could “sue and be sued in the same manner as if she were unmarried.”9 These Acts significantly increased the legal rights of women, allowing them to sue their husbands, defend their property interests, and make claims for fraud, trespass, conversion, and negligent injury to property.10 However, state courts faced with legislative Married Women’s Acts often turned to public policy-based argument in order to justify the continued affirmation of the interspousal immunity doctrine. These public policy considerations generally included a mixture of the following arguments: 1) immunity preserves marital harmony, and interspousal tort suits will disrupt marital tranquility; 2) husbands and wives will engage in fraud and collusion in order to recover from liability insurance policies; 3) doing away with interspousal immunity will create excessive and frivolous claims; and/or 4) injured parties should pursue alternative remedies such as divorce or criminal charges.11 Although originally supported by many jurisdictions, courts throughout the twentieth century have abandoned these policy arguments.
From 1920 to 1940, courts increasingly read Married Women’s Acts broadly, and the partial abrogation of interspousal immunity was a national trend. However, by the 1940s, a majority of jurisdictions still continued to recognize interspousal immunity.12 The doctrine continued to erode nationwide so that by 1970, a majority of states allowed intentional tort actions between spouses. By 1989, only one-sixth of the states retained immunity in some form, stressing the public policy arguments of marital tranquility, fraud, and judicial deference concepts. However, these arguments continued to erode, so that by the end of 1993, thirty-nine states had completely abolished interspoual immunity in its entirety,13 and by 1997, another six states joined the list.14 As of 2008, Louisiana remains the only state that retains interspousal tort immunity in relation to any tort action between spouses.15
Where the Utah Supreme Court case of Stoker v. Stoker 16 in 1980, appeared to abrogate interspousal immunity in its entirety, subsequent case law dicta left it arguably unclear as to whether only intentional torts or the entire doctrine had been abrogated, leaving both practitioners and commentators unsure as to the precise status of interspousal immunity in Utah.
The “Tortuous Path” of Interspousal Immunity in Utah
In Ellis, The Utah Supreme Court recently acknowledged that the common-law doctrine of interspousal immunity has traveled a “tortuous path” in Utah case law.17 Examining the history of Utah’s case law on the doctrine, the Arizona Court of Appeals found that: “[b]etween 1954 and 1980, the Utah Supreme Court twice reversed its interpretation of the governing statutes on the subject, each time by a divided court; and since 1980 the court has three times avoided deciding how its previous cases should be read.”18 Each time the doctrine has been addressed by the court, it has been required to weigh the significance of Utah’s Married Women’s Act and its interpretation, against arguable public policies.
A. Utah’s Married Women’s Act of 1898.
In the revised statutes of 1898, the Utah Legislature joined other states in enacting the Married Women’s Act (“the Act”).19 These statutes, in pertinent part, have remained unchanged since enactment, and can be found in principle part in Utah Code sections 30-2-2 and 30-2-4. Section 30-2-2 states:
Contracts may be made by a wife, and liabilities incurred and enforced by or against her, to the same extent and in the same manner as if she were unmarried.20
Section 30-2-4 states:
A wife may receive the wages for her personal labor, maintain an action therefore in her own name and hold the same in her own right, and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.21
Pursuant to the Act, the legal rights of wives were substantially expanded, permitting them to sue and be sued, enforce liabilities, and take action to protect their rights.
B. The Married Women’s Act Versus Interspousal Immunity.
The first case to address interspousal immunity pursuant to the Act occurred in 1954, in the case of Taylor v. Patten,22 where a wife sued her husband for injuries arising from an intentional tort. By a 3-2 decision, the Utah Supreme Court reinstated the wife’s intentional tort claim against her husband as a “sound public policy.” In deciding that a wife could recover from her husband for intentionally inflicted injuries, the court noted that although Utah statutes did not expressly authorize such recovery, “a liberal construction with a view to effect their objects and promote justice indicates that such was the legislative intention.”23 Two members of the majority stated:
Under modern Husband and Wife statutes, such as ours, [the] fiction [of coverture] has been completely eliminated and the wife has been completely emancipated from this inability to own, control and manage her property, and from her inability to sue and be sued for the protection of her property and personal rights.24
Although joining to form the majority, Justice Crockett limited his concurrence to claims arising during the interlocutory period of a divorce action, and expressed his support of the doctrine of interspousal immunity and misgivings of permitting spouses to sue one another, on the grounds that such suits created marital discord and would lead to collusive lawsuits.
Nine years later, the Utah Supreme Court overruled Taylor in the case of Rubalcava v. Gisseman,25 by a 4-1 decision, holding that a wife could not sue her husband for a negligent tort arising during their marriage.26 Drafting the majority opinion, Justice Crockett conceded that although “as a generality, the idea that the husband is master of the house exists more in theory than in fact,” public policy continued to favor interspousal immunity. The court asserted “to allow interspousal actions ‘encourages raids on insurance companies through unmeritorious claims which never would be instituted where the husband did not carry liability insurance,’”27 and that the prospect of liability insurance acted as a temptation for collusion, which would subvert marital accord.28
The court further asserted that if the legislature had intended to abolish interspousal immunity in tort cases it would have explicitly done so, and therefore reinterpreted Utah’s Married Women’s Act strictly, abolishing interspousal immunity only as it applied to contract and property cases. This interpretation applied whether or not a spouse was alive or deceased, and whether or not the conduct was intentional or unintentional.
In 1980, the Utah Supreme Court revisited the issue of interspousal immunity in the case of Stoker v. Stoker,29 a case that involved an intentional tort claim by a wife against her husband. This time, a three member majority of the court rejected and reversed its decision in Rubalcava in its entirety, and reaffirmed the prior lead decision in Taylor, stating:
The [Married Women’s Act] authorizes [a wife] to prosecute and defend all actions for the preservation and protection of her rights and property, as if unmarried. It speaks of rights and of property in the disjunctive, and, all actions for the preservation and protection of her rights would certainly include a right to be free from an intentional tort of her husband.30
The court further acknowledged that the Married Women’s Act was enacted pursuant to article IV, section I, of the Utah Constitution, which states that “Both male and female citizens of this State shall enjoy equally all civil, political, and religious rights and privileges.” The court also reiterated that the Utah Married Women’s Act should be liberally construed so as to promote justice. The court concluded that:
The old common law fiction [of coverture] is not consonant with the realities of today. One of the strengths of the common law was its ability to change to meet changed conditions. Here, the Legislature did not wait for the common law to change, it made the change for it; and did so at a time when a great many of Utah’s sister states were enacting, or had previously enacted, Married Women’s Acts. Our holding today reaffirms the Legislative abrogation of Interspousal Immunity.31
However, the Utah Supreme Court’s flip-flopping from Taylor to Rubalcava and then to Stoker didn’t settle the issue in the minds of Utah attorneys and commentators. Although Stoker did “reaffirm” the abrogation of interspousal immunity in Utah, it was an intentional tort case, and did not specifically address unintentional tort actions between spouses. Furthermore, after the Stoker decision, the Utah Supreme Court marginally commented on the issue of interspousal immunity in the unintentional tort context on three separate occasions, and appeared to identify that the issue was still unresolved.
In State Farm Mutual Automobile Insurance Co. v. Mastbaum,32 the Utah Supreme Court found that a household exclusion clause absolved a liability insurer of the duty to defend a husband in his wife’s personal injury suit. In his concurring opinion, Justice Zimmerman stated: Inasmuch as there are no grounds for reversing the instant case, I think it unnecessary for us to decide at this juncture whether Stoker v. Stoker, 616 P.2d 590 (Utah 1980), abrogated interspousal immunity with respect to actions grounded in negligence as well as those grounded in intentional torts.33
In Noble v. Noble,34 the Utah Supreme Court opined in a footnote that:
In Stoker, this Court held that the doctrine [of interspousal immunity] had been abrogated with respect to intentional torts. Id. at 590, 592. We have never had occasion to decide whether this abrogation extended to negligence claims, and we do not do so in this case. It is unnecessary for us to reach that question because our disposition of [the plaintiff’s] intentional tort action makes it a certainty that she will have a remedy for her injuries.35
These comments by the court in Mastbaum and Noble suggested that Stoker did not fully abrogate interspousal immunity. In the subsequent case of Forsman v. Forsman,36 a plaintiff sued her husband and another individual in Utah for damages sustained as a result of an unintentional automobile collision. However, on appeal, the Utah Supreme Court found it necessary to apply the law of the domicile state (California), and did not discuss or comment on the issue of interspousal immunity under Utah law. The decisions in these three cases provided limited credence to arguments made by defendant insurance companies at the district court level that interspousal immunity still applied to unintentional torts in Utah.
Fifteen years after Stoker, in 1994, the Arizona Court of Appeals found it necessary to examine Utah law regarding interspousal immunity in a negligence case. In Lucero v. Valdez,37 a wife brought suit against her husband for damages sustained in a vehicle accident that occurred while the couple was traveling through Arizona from their home in Utah. The court examined “whether the Stoker majority intended to limit its decision to the facts, rejecting interspousal tort immunity for intentional tort claims only, or whether it intended a wholesale rejection, not only in intentional tort claims but in negligence claims as well.” The court concluded that the decision of Mastbaum and Noble held that the issue remained open in Utah. However, the court determined that the rationale set forth in Stoker articulated the rejection of interspousal immunity in all cases. However, noting that the Utah Supreme Court might again reverse its decision, the court held that Arizona law should apply and permitted the plaintiff’s negligence claim.
In 2007, more than a quarter century after its decision in Stoker, the Utah Supreme Court was presented a case requiring it to address whether or not interspousal immunity applied to unintentional torts in Utah.
The Reaffirmed Death of Interspousal Immunity.
The Utah Supreme Court’s decision in Ellis v. Ellis specifically addresses whether or not Utah joined the list of states abolishing interspousal immunity in the 1980 case of Stoker, and if not, whether the doctrine should be upheld. The court concluded: “We now reiterate our Stoker analysis and hold that the common-law doctrine of interspousal immunity has been abrogated with respect to all claims.”38 Where the court acknowledged the tortuous path of the doctrine of interspousal immunity in Utah case law, it identifies that both majority opinions in Rubalcava and Stoker found no basis to distinguish negligence from intentional tort claims, stating:
[I]n Stoker, after reversing course from Rubalcava and reaffirming Taylor, we made this broad, clear statement: “Our holding today reaffirms the Legislative abrogation of Interspousal Immunity.” Stoker was meant to be our final pronouncement on the subject – interspousal immunity was now dead in Utah as to all claims.
. . . .
In sum, because we rejected in Rubalcava and Stoker any distinction, for the purposes of interspousal immunity, between negligent and intentional torts, and because in Stoker we rejected interspousal immunity for reasons that apply equally to negligent and intentional torts, we conclude that interspousal immunity has been abrogated in Utah with respect to all claims.39
The court’s decision to reaffirm Stoker’s abrogation of interspousal immunity is based on its conclusion that the two primary policy rationales previously used to justify the doctrine in its Rubalcava decision – marital discord and collusion – are without merit.
Doing so, the court found that it had no “penetrating insight” to determine the doctrine’s effect upon a marriage, and that barring actions between spouses may cause as much marital discord as allowing them, and that it is doubtful that marital harmony can be “preserved or restored by refusing to redress a palpable wrong or compensate a genuine injury.”40 The court also rejected that the abrogation of the doctrine would create collusion, finding that the argument had previously been rejected in regards to household exclusion clauses in automobile insurance policies, and has never been accepted in Utah as grounds for endorsing the parent-child immunity doctrine.41 Furthermore, as trial judges and juries examine evidence in order to arrive at proper verdicts, they “would naturally be mindful of the relationship and would be even more on the alert for improper conduct.”42 Refuting the public policy arguments long used to support interspousal immunity in Utah, the Utah Supreme Court’s decision in Ellis ends any argument that the doctrine continues to exist in any form.
The doctrine of interspousal immunity has been dying across the United States throughout the twentieth century. For over a quarter century, legal practitioners have been waiting to learn its ultimate fate in Utah. The Utah Supreme Court’s decision in Ellis has definitively set the issue to rest – the doctrine is entirely dead in Utah.
1. Due to a failure to file her claim within a year of Mr. Ellis’s death, the Estate’s liability was limited to Mr. Ellis’s insurance coverage. See Utah Code Ann. §75-3-803(1)(a), (4)(b) (1993).
2. The Estate’s motion also argued that the statute of limitations had run on Mrs. Ellis’s negligence claim. The district court denied this argument and determined that lay affidavits were sufficient to establish a genuine issue of material fact as to Mrs. Ellis’s mental incompetence for a time sufficient to toll the four-year statue of limitations, pursuant to section 78-12-36. See Utah Code Ann. §78-12-36 (2002).
3. Utah Married Women’s Act, Utah Code Ann. §78-11-1, 30-2-2, 30-2-4 (1953, as amended).
4. Stoker v. Stoker, 616 P.2d 590, 590 (Utah 1980).
5. Ellis v. Estate of Ellis, 2007 UT 77 169 P.3d 441.
6. Laura H. Wanamaker, Note, Waite v. Waite; The Florida Supreme Court Abrogates the Doctrine of Interspousal Immunity, 45 Mercer L. Rev. 903. See also Hatch v. Hatch, 46 Utah 116, 148 P. 1096, 1099 (1915).
7. Stoker, 616 P.2d at 590-91 (quoting Colley’s Blackstone, Volume 1, Book 1, Chapter 15, page 290 (1879)).
8. Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359, 361-62.
9. See Utah Code Ann. § 78-11-1 (1953, as amended).
10. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 122 (5th ed. 1984).
11. Wanamaker, supra note 6, at 906.
12. Tobias, supra note 8, at 423-25.
13. Wanamaker, supra note 6, at 907.
14. See Interspousal Torts: A Procedural Framework for Hawi’i, 19 U. Haw. L. Rev. 377, 381 (1997).
15. See La Rev. Stat. § 9:291.
16. Stoker, 616 P.2d at 592.
17. Ellis, 2007 UT 77, ¶ 99.
18. Id. (quoting Lucero v. Valdez, 180 Ariz. 313, 884 P.2d 199, 205 (Ct.App.1994)).
19. See Utah Revised Statutes § 1201 (1898).
20. Utah Code Ann. § 30-2-2 (1953, as amended).
21. Id. § 30-2-4 (1998).
22. See Taylor v. Patten, 275 P.2d 696, 698 (Utah 1954).
23. Id. at 696.
24. Id. at 697-98.
25. See Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963).
26. See id. at 393.
27. Id. at 391-92 (quoting Brown v. Gosser, 262 S.W.2d 480, 485 (1953)(Sims, C.J., dissenting)).
28. Id. at 391.
29. Stoker v. Stoker, 616 P.2d 590 (Utah 1980).
30. Id. at 591.
31. Id. at 592.
32. State Farm Mut. Auto. Ins. Co. v. Mastbaum, 748 P.2d 1042 (Utah 1987).
33. Id. at 1044-45 (Zimmerman, J., concurring).
34. Noble v. Noble, 761 P.2d 1369 (Utah 1988).
35. Id. at 1375 n.7 (citations omitted).
36. Forsman v. Forsman, 779 P.2d 218 (Utah 1989).
37. Lucero v. Valdez, 884 P.2d 199 (Ariz. App. Div. 1 1994).
38. Ellis, 2007 UT 77, ¶ 21.
39. Id. ¶¶ 23-24 (citations omitted).
40. Id. ¶ 27 (quoting Keeton § 122, at 903 (5th ed. 1984)).
41. See id. ¶¶ 28-29.
42. Id. ¶ 29 (quoting Farmers Ins. Exch. v. Call, 712 P.2d 231 (Utah 1985)(internal quotation marks and citations omitted)).