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I. Introduction
On November 12, 1961, at 2 a.m., a car driven by Theodore Rubalcava was involved in an auto-train collision in the 1600 West block of Salt Lake City. The collision resulted in
the death of Mr. Rubalcava and injury to his wife, Lydia Rubalcava, who was a passenger in the car. Two years later, Lydia Rubalcava sued the Union Pacific Railroad and the
estate of her deceased husband for the injuries she suffered from the collision. The circumstances of this case gave rise to the question of whether, under Utah law, a wife
could sue her husband for an unintentional tort.
In 1963, the Supreme Court of Utah, in the case of Rubalcava v. Gisseman,1 prohibited a wifeÕs suit against her spouse for personal injuries caused by the latterÕs negligence.
While historically the court has allowed legal actions between spouses with respect to contract and property law2 and for intentional acts,3 no case has specifically permitted
an action based on ordinary negligence. Although the court in Rubalcava identified several public policies for prohibiting one spouse from suing the other for negligence, the
viability of such policies today is arguably something of dispute. Although the Utah Supreme Court has had three opportunities to address the issue of interspousal immunity
since Stoker v. Stoker in 1980, it has not been presented with a case involving an unintentional tort between spouses domiciled in Utah. It is my suggestion that after
twenty-seven years, it is time to reexamine the issue of interspousal immunity in Utah and determine whether the doctrine should still remain a part of UtahÕs common law.
This article examines the doctrine of interspousal immunity in Utah to consider whether it should be completely abrogated. First, it reviews the history of interspousal
immunity in the United States and Utah. Second, it focuses on Utah case law regarding interspousal immunity. Third, it examines national and local policy arguments for and
against abrogating immunity for such tort actions.
II. The History of Interspousal Immunity
The origin of the doctrine of interspousal immunity in common law is based upon the Biblical concept that upon marriage, a husband and wife become Òone flesh;Ó4 and that being
so united in purpose and spirit, it was illogical to place the spouse of an injured party in an adversarial position. By the time of Blackstone, English common law had
incorporated this so-called unity doctrine into a Òlegal identityÓ theory, in which a wifeÕs existence was considered to have merged into that of her husband.5 At common law,
unmarried women could contract, litigate, be sued, and own, manage and convey realty and personalty. Women were also entitled to the fruits of their labor and income derived
from property. Upon wedlock, however, husbands acquired possessory rights to the wivesÕ chattels, property, rents and profits, and causes of action.6
This Òspousal unityÓ theory held substantive and procedural implications with regard to interspousal litigation. The status of a married couple prevented one spouse from
seeking a tort action against the other for harm or injury. Even if a claim could have been stated, the husband would have been both the plaintiff and defendant in the
litigation. As such, at common law, it was impossible for a spouse to be held liable as a tortfeasor to the other spouse, in any situation, and without exception, either
antenuptial or during the course of marriage, for injuries which would have been a tort but for marriage.7
In the United States, during the latter part of the nineteenth century, states began to pass Married WomenÕs Property Acts that destroyed the common law unity of husband and
wife, and allowed a married woman Òto sue and be sued in the same manner as if she were unmarried.Ó8 These Acts significantly increased the rights of married women Òin some
form in all American jurisdictions,Ó9 allowing women to sue their husbands, defend their property interests, and make claims for fraud, trespass, conversion, and negligent
injury to property.10 With the common law unity concept effectively abolished by the Married WomenÕs Acts, state courts turned to public policy arguments to justify their
affirmation of the interspousal immunity doctrine.11 The policy arguments included: (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 (4) Injured parties should pursue alternative remedies such as divorce or criminal charges.12
These arguments were disfavored by legal scholars, however, and after repeated criticism, the courts began to abandon such theories.13 From 1920 to 1940, an increased judicial
willingness to read the relevant Acts broadly and to partially abrogate immunity was the national trend. However, even by the 1940Õs, a majority of jurisdictions continued to
recognize immunity.14 From the 1920Õs to the 1970Õs, immunity gradually eroded nationwide, to a point that by 1970, interspousal immunity was treated almost exclusively as a
policy question, with a majority of states allowing intentional tort actions between spouses. By this time, more than a dozen states had fully abrogated interspousal
immunity.15 Since 1970, interspousal immunity has been severely weakened. In 1989, approximately one-sixth of the states retained immunity in some form, stressing the marital
tranquility, fraud, and judicial deference concepts. A substantial majority, however, had fully abolished it.16 By 1993, thirty-seven states had clearly abolished the
doctrine. In mid 1993, both Florida and Delaware joined that list.17 To date, only Hawaii18 and Louisiana19 retain interspousal tort immunity completely. Where it is clear
that Utah has abrogated some interspousal immunity, Utah law is unclear as to whether it has only abrograted intentional torts or has completely abrogated interspousal
immunity. Therefore, the question remains: Is interspousal immunity still a part of UtahÕs common law?
III. Utah Case Law on Interspousal Immunity
Although the issue of interspousal immunity has been before the Utah Supreme Court on several occasions, it remains unresolved. Utah courts have been left with no clear
indication whether interspousal immunity continues to remain a part of UtahÕs common law. In the1954 case of Taylor v. Patten,20 a wife sued her husband for injuries arising
from an intentional tort. By a 3-2 decision, the Utah Supreme Court reinstated the wifeÕs intentional tort claim against her husband as a Òsound public policy.Ó21 The court
examined whether interspousal immunity was compatible with Utah statutes which enabled wives to sue and be sued, enforce liabilities, and take actions to protect their rights
Òas if unmarried.Ó22 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, Òa liberal construction with a view to effect their objects and promote justice indicates that such was the legislative intention.Ó23
Nine years later, the Utah Supreme Court overruled Taylor in Rubalcava v. Gisseman,24 holding that a wife could not sue her husband for a tort arising during their marriage. In
his majority opinion, Justice Crockett reluctantly conceded that although Òas a generality, the idea that the husband is master of the house exists more in theory than in
fact,Ó public policy continued to favor interspousal immunity.25 Further, arguing that if the legislature had intended to abolish interspousal immunity in tort cases it would
have explicitly done so, the court reinterpreted Utah statutes strictly, abolishing interspousal immunity except for contract and property cases.26 The court remained divided
on the subject, however, and the decision was reversed again in Stoker v. Stoker.27 In Stoker, a case which involved an intentional tort claim by a wife against her husband,
the court turned again to the statutes and reaffirmed the lead opinion in Taylor, stating:
The statute 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.28
The court reiterated that the Utah Married WomenÕs Act should be liberally construed so as to promote justice.29 Although Stoker was silent concerning unintentional tort
actions between spouses, it does authorize a wife to prosecute and defend Òall actionsÓ for the preservation and protection of her rights and property as if unmarried.
Therefore, the question arises: Did Stoker completely abrogate interspousal immunity in Utah?
Since the 1980 Stoker decision, the Utah Supreme Court has had three opportunities to revisit and examine the issue of interspousal immunity, in the cases of State Farm Mut.
Auto. Ins. Co. v. Mastbaum,30 Noble v. Noble,31 and Forsman v. Forsman.32 In each case, the court chose not to address the issue of whether Stoker abrogated the immunity, but
left the matter unsettled.
In Mastbaum, the court found that a household exclusion clause absolved a liability insurer of the duty to defend a husband in his wifeÕs 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, the court stated in its opinion footnotes:
In Stoker, this Court held that the doctrine 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 ElaineÕs intentional tort action
makes it a certainty that she will have a remedy for her injuries.34
In the 1989 case of Forsman, the issue again was left unresolved. The case involved a plaintiff and defendant who at the time of an accident in Utah, were married and domiciled
in California. The plaintiff sued her husband and another individual in Utah for damages sustained as a result of a collision. Upon appeal, the Utah Supreme Court applied the
law of the domiciliary state (California), and chose not to decide the issue of interspousal immunity from negligence under Utah law.35
It should be noted that in a case similar to Forsman, the Arizona Court of Appeals also sought to apply the law of the domiciliary state in determining interspousal immunity in
negligence cases. The domiciliary state of the parties in that case was Utah. In Lucero v. Valdez,36 a wife brought suit against her husband for damages sustained in a vehicle
accident that occurred while the couple were traveling through Arizona from their home in Utah. The court was left to examine Òwhether 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.Ó37 The Arizona Court of Appeals found that the decisions of Noble and Mastbaum recognized that the question remained open. It
determined that the Utah Supreme CourtÕs rationale in Stoker, articulated in rejecting the doctrine of interspousal immunity, applied equally to negligence cases and to cases
of intentional torts.38 Still, recognizing that the Utah Supreme Court might again reverse its decision, the Arizona Court of Appeals determined that Arizona law should apply
and permitted the plaintiffÕs negligence claim.39
Twenty years after Stoker, the Utah Supreme Court still has not been presented with an unintentional tort case between spouses domiciled in Utah, and the courts of Utah still
have no clear answer to whether Utah law will permit unintentional tort claims between spouses.
IV. Policy Concerns
Although some jurisdictions retain the doctrine of interspousal immunity in whole or in part, it has become a shrinking minority rule throughout the United States. As
previously noted, jurisdictions retaining interspousal immunity stress policy arguments in support of the doctrine, including: 1) Preserving marital harmony; 2) Preventing
spousal fraud and collusion; 3) Deference by courts to their state legislatures; 4) Preventing a flood of frivolous claims; and 5) Encouraging injured spouses to pursue
alternative remedies. In 1963, the Utah Supreme Court considered many of these same arguments in Rubalcava, but they have not since been addressed. These public policies are
clearly outdated and no longer justify the affirmation of the interspousal immunity doctrine in Utah. Each of these policies is examined in turn hereafter.
A. Marital Harmony
The policy of promoting marital harmony has been consistently argued as a viable defense of interspousal immunity. Proponents contend that the policy protects spousal peace,
whereas permitting suits would create or exacerbate marital disharmony. Where earlier courts based their decisions on a policy that marital harmony preserves marriage and the
family, more recent court decisions opine that such tort claims today would impose an additional burden on the greatly beleaguered institution of marriage.
However, the few courts which justify their reliance on the marital harmony theory fail to explain how immunity actually preserves marital tranquility, or how permitting such
suits leads to marital discord. The courts have instead focused their discussions on the potential burden imposed upon marital relationships by the adversarial roles spouses
would be required to adopt.40
While admittedly, the basis of the marital harmony policy is that the tension from tort litigation disturbs marital peace, there are numerous contrasting arguments which call
for a renouncement of the theory. These arguments include: 1) The marital harmony argument is artificial and unpersuasive in light of the many circumstances where spouses are
permitted to sue one another;41 2) Marital discord stems from many variables, and is not simply derived from litigation;42 3) Intentional and unintentional torts disturb
marital peace, and litigation resulting in an insurance claim may in fact promote tranquility by alleviating the harm;43 4) The tranquility of litigants is generally
irrelevant in tort actions involving unrelated individuals, yet their equanimity may be disturbed as much as that of spouses in interspousal tort suits;44 5) When a spouse is
injured, the unintentional character of the conduct and insurance coverage can minimize any harm caused by litigation;45 6) The view of the marriage relationship has changed
significantly since the marital harmony rationale was first enunciated;46 7) Tort cases are arguably less disruptive than other interspousal actions such as contract and
property claims;47 8) No proof exists to show that in states permitting spousal tort actions, marital harmony has been disrupted any more than in states that retain
interspousal immunity;48 9) Interspousal immunity has little detrimental impact on marital tranquility and its abrogation may in fact foster marital peace;49 and 10) Even
assuming that interspousal suits do threaten marital harmony, it is not for the court to determine how to protect marriages.50
As in other states, Utah has used the policy of marital harmony to support the doctrine of interspousal immunity. In Rubalcava, the Utah Supreme Court reestablished the
immunity for intentional and unintentional tort cases. However, instead of explaining how the immunity creates marital harmony, Justice Crockett in his majority opinion,
described why the immunity would not protect marital harmony, stating:
We are in accord with the reasoning [of Thompson v. Thompson 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180 (1910)] that statutes expressly allowing actions by the wife against the
husband in respect to contract and property, do not compel the conclusion that tort actions should also be included. If there is danger of marital discord from the former,
that evil will not be minimized by expanding the statutesÕ meaning to permit tort actions as well. The old adage, two wrongs do not make a right is applicable.
The answer to the argument for marital harmony: that discord will not be engendered when the insurance company is to pay, is neither sound nor entirely realistic. . . .51
In arguing that Òtwo wrongs do not make a rightÓ in the defense of the courtÕs reversal, reinstating interspousal immunity, Justice CrockettÕs opinion fails in its analysis of
how marital harmony would be preserved by the immunity. The opinion offers no explanation how contract and property cases between spouses have injured the marriage
relationship, but merely characterizes such cases between spouses as a ÒwrongÓ with the abrogation of interspousal immunity as another Òwrong.Ó
The outdated and unsupported policy of marital harmony simply fails as an adequate justification of interspousal immunity. Our courts should examine the policy and come to the
conclusion that the argument of marital harmony in support of interspousal immunity is outdated, unsupported, and has not applied since the Stoker decision.
B. Fraud and Collusion
Some of the courts that have retained immunity argue that it is justified by the need to prevent fraud and collusion, especially where insurance companies are the real parties
in interest.52 They argue that fraud and collusion might occur in such tort actions for a variety of reasons: (1) The intimate and confidential relationship between spouses;
(2) Liability insurance provides the prospect of profit for the risk; (3) The tortfeasor may profit from the tort wrongdoing and share in the recovery; and (4) The temptation
for the parties to fabricate and exaggerate the conduct and severity of damages, and to conceal potential defenses. Furthermore, the resolution of potential fraudulent claims
may entail substantial costs for policy-holders.53
The Utah Supreme Court in Rubalcava adopted the above arguments concerning fraud and collusion, stating:
[T]he fact cannot be ignored that where there is insurance, and this is known to both parties, the temptation to collusion exists; and this is increased when the supposedly
adverse parties are in the symbiotic relationship of husband and wife. The risk of loss, and the natural reaction to defend against a charge of wrong, may be negligible or
nonexistent; and are supplanted by the covert hope of mutual benefit. . . We are impressed with the wisdom of Justice Sims, dissenting in Brown v. Gosser, wherein he stated
that to allow interspousal actions Òencourages raids on insurance companies through unmeritorious claims which never would be instituted where the husband did not carry
liability insurance, thus possibly raising insurance rates on thousands of honest persons for the benefit of the fraudulent few.Ó (Citations omitted)54
While the stated concerns of the court are to be duly considered, the argument that abolishing interspousal immunity would encourage fraud and collusion has been addressed by
supreme courts of various states. The Florida Supreme Court in Waite v. Waite,55 found no reason to believe married couples would be any more likely to engage in fraud or
collusion against insurers than anyone else.56 Impeding tort claims between spouses on the basis of potential fraud and collusion alone contradicts the principle that injured
persons should have redress in the courts against the one who caused the harm.57 Also, judges have observed that it would be unfair to deny valid claims of numerous married
people out of fear that some may act incorrectly, and to disappoint the reasonable expectations of those who purchased insurance to pay for damages suffered.58 In Brown v.
Gossar,59 the Kentucky Supreme Court stated:
We are not willing to admit that the courts are so ineffectual, nor our jury system so imperfect, that fraudulent claims cannot be detected and disposed of accordingly. There
is opportunity for fraud in many types of claims which reach the courts, but that does not justify denying the right to maintain those which have merit.60
Safeguards exist to prevent fraud and collusion whether or not the litigants are married, including; investigation of suspicious claims by insurance companies, discovery of
information, the existence of independent witnesses, impeachment of claimantsÕ testimony based on the financial stake in the outcome, the threat of criminal prosecution, and
the obligation of the insured to cooperate with his or her insurance carrier.61 The Florida court concluded, Òthe remedy should be to expose the fraud rather than to discard
all the honest claims along with the bad ones.Ó62 Although the resolution of potentially fraudulent suits can be expensive, the costs are no greater than those imposed by
similar litigation.63
The argument of fraud and collusion was also used in support of ÒGuest StatutesÓ that were enacted in some thirty states in the 1920Õs and 1930Õs. In Malan v. Lewis,64 the Utah
Supreme Court found its Guest Statute, Utah Code Ann. ¤ 41-9-1, unconstitutional. In its decision, the court discussed the argument of fraud and collusion, stating:
The second justification for the statutory discrimination, the prevention of collusion, is likewise without merit. The plain fact is that if an injured guest and his host will
run the risk of perjury as to the driverÕs negligence to obtain a recovery from an insurance company, they would just as likely run the risk of perjury as to payment for the
ride to obtain a recovery. Furthermore, the usual tools relied on in judicial proceedings to disclose fraud Ð discovery, the oath and cross-examination Ð are as effective in
the host-guest situation as in a number of other situations that could give rise to fraud. To cut off the protection of negligence law for a whole class of automobile accident
victims because a few persons within the class may attempt to commit a fraud, which they could also attempt irrespective of the Guest Statute, is to discriminate invidiously.
All the states that have held their guest statutes unconstitutional have also held that collusion cannot justify the statute. E.g., Thompson v. Hagan, 96 Idaho. 19, 523 P.2d
1365 (1974); Nehring v. Russell, Wyo., 582 P.2d 67 (1978).
. . .
Nor can justification be found for the statute on the theory that it reduces insurance rates. That may be true, but there is no valid justification for achieving that objective
by singling out nonpaying automobile guests. It would be just as logical to select out all victims of automobile accidents caused by Ford automobiles. That also would reduce
insurance premiums, but there is no rational basis for discriminating against the disadvantaged class in either case.65
Taken together, the decision in Stoker (1980) abrogating interspousal immunity in intentional tort cases, the decision in Malan (1984) and the subsequent repeal of Utah Code
Ann. ¤ 41-9-1 in 1988,66 has led many attorneys and even some judges in Utah to believe that the issue of interspousal immunity in unintentional torts has been addressed,
believing that the decision in Malan abrogated interspousal immunity in automobile negligence. Such is not the case. No Utah Supreme Court decision has addressed the issue
since Rubalcava.
Finally, courts have argued that the policy of marital harmony and that of fraud and collusion are contradictory. In Merenoff v. Merenoff,67 the court stated:
To the extent
the threat of marital disharmony can be removed or reduced by the presence or availability of insurance, the potential for fraud is increased; conversely, when the threat of
fraud is minimized or eliminated because there is no insurance or insurer to be victimized, the risk of creating marital friction is correspondingly augmented.68
The rationale of fraud and collusion in support of interspousal immunity in tort claims is not supported by the states which have eliminated the doctrine. Where the same
argument was made in support of state Guest Statutes, Utah as well as other states found the rationale to be without merit. Therefore, it seems illogical for Utah courts to
continue to apply fraud and collusion as a supportive argument for interspousal immunity.
C. Deference to State Legislatures
Many courts have held that the abrogation of interspousal immunity in relation to torts should be resolved by legislators and not by the courts.69 Such courts argue:
If such a radical change is to be made in the common-law rights and liabilities of married persons, [authorizing a wife to sue her husband for negligently inflicted injuries,]
it must be made by clear enactment of the General Assembly, and not by this court in giving an unwarranted construction to the meaning of the statute law relating to the
property rights of married women.70
However, in a substantial majority of jurisdictions, judges have not deferred to the legislatures, finding that immunity, created and preserved by common law, could be modified
on policy grounds by the court.71 The Ohio Supreme Court found that it is the duty of the courts to see that the common law changes and evolves along with society in order to
reflect societyÕs present needs. It also determined that the court must eliminate the doctrine from its stateÕs common law.72 Several states have broadly interpreted their
Married WomenÕs Acts, abrogating interspousal immunity wholly or in part.73
The relevant decisions in Utah case law have contradicted one another in such a manner that the Married WomenÕs Acts and applicable Utah law should be reexamined. The Supreme
Court of Utah in Taylor (1954) broadly interpreted the Utah Married WomenÕs Acts as evidence that the state legislature intended a complete abrogation of interspousal
immunity. Nine years later, the Utah Supreme Court overturned Taylor in Rubalcava. At that time, the court strictly construed the Utah WomenÕs Act as serving Òonly to give the
wife the privilege of suing to protect whatever rights she may have [as specifically stated in ¤ 30-2-1 to 10 of the Utah Code Ann. 1953] but does not purport to create for
her any new or substantive cause of action.Ó74
The Utah Supreme Court again reversed its decision in Stoker and broadly interpreted the Utah Married WomenÕs Acts to abrogate interspousal immunity in intentional torts by
analyzing itself, Utah Code Ann. ¤ 30-2-4, the Utah Constitution, Article I, Section 2, Article IV, Section 1, and Utah Code Ann. ¤ 68-3-2, stating:
The pertinent part of UtahÕs Married WomenÕs Act as found in 30-2-4, is:
Ò. . . 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.Ó [Emphasis supplied]
The statute authorizes her 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.
The pertinent statute has been with us since at least 1888, and appeared in the revised statutes of 1898; and without alteration has come down to the present. Lending credence
to our interpretation of that statute is the fact it was enacted with full knowledge of Article I, Section 11, Constitution of Utah, which is as follows:
ÒAll courts shall
be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial
or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a
party.Ó
It was also enacted with full knowledge of Article IV, Section 1, of our Constitution, which is as follows:
ÒThe rights of citizens of the State of Utah to vote and hold
office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and
privileges.Ó
Our Married WomenÕs Act, as has been demonstrated, is in derogation of the common law. As such, attending its construction, is 68-3-2:
the rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of this state. The statutes establish the laws of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice. Whenever there is any variance between the rules of equity and the rules of common law in reference to the same matter the rules of equity shall prevail.Ó
To read into our Married WomenÕs Act, a proscription against a wife suing her husband, would be to construe it so strictly as to add a provision which the Legislature did not
put there.
The old common law fiction 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 UtahÕs sister states were enacting, or had
previously enacted, Married WomenÕs Acts. Our holding today reaffirms the Legislative abrogation of Interspousal Immunity. That trend in our sister states is certainly in
consonance with our holding today: See 92 A.L.R.3d 901 at p. 923, et seq.75
Using this rationale, the Utah Supreme Court expressly reaffirmed the abrogation of interspousal immunity in its entirety, specifically citing 92 A.L.R.3d 901, 923, which lists
other jurisdictions that had also abrogated interspousal immunity in its entirety.76 In Stoker, the Utah Supreme Court followed the law established by the Utah Constitution
and state statutes, allowing women Òto prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried.Ó77 While the Stoker
case addressed intentional torts, the legal analysis of the statutory and constitutional basis of that ruling applies equally to unintentional torts. The statute does not
exclude negligence claims between spouses, but allows a wife to prosecute ÒallÓ actions, including intentional and unintentional torts. Therefore, it is this authorÕs view
that the argument found in Stoker, coupled with that in Malan, abrogates interspousal immunity in its entirety. As in Stoker, Ò[t]he old common law fiction [interspousal
immunity] is not consonant with the realities of today.Ó78 As such, the Utah courts may and should act to ensure the complete abrogation of interspousal immunity.
D. Flood of Frivolous Claims
As previously stated, courts have feared that the abolition of interspousal immunity would flood the judicial system with frivolous or trivial claims.79 However, there is no
evidence to suggest that where the immunity has been eliminated, such action has fostered a substantial increase in litigation or has encouraged the filing of frivolous suits.
The Missouri Supreme Court stated in S.A.V. v. K.G.V:80
The ÒfloodingÓ of the courts argument collides with the requirement that courts must provide a forum to redress legitimate and compensable injuries. Further, that argument has
been tested and apparently found wanting in thirty jurisdictions which have totally abolished the doctrine of interspousal immunity.81
Therefore, the ÒfloodgatesÓ argument, like the fraud and collusion argument, is not substantiated and should be discarded.82
E. Injured Spouses should Pursue Alternative Remedies
Finally, the Utah courts should examine the argument that injured spouses should pursue alternative remedies. The suggestion is that, in lieu of pursuing a tort suit, an
injured spouse may resort to criminal courts to secure punishment for a committed harm, or the spouse may sue for divorce or separation and seek alimony.83 The argument of
alternative remedies contains serious flaws. Criminal and divorce laws do not permit compensation for damages, and where a desirable remedy exists, it can be difficult to
secure.84 On this subject, the Oklahoma Supreme Court, in Courtney v. Courtney,85 stated:
The argument that the wife has sufficient remedy in criminal proceedings and
separate maintenance and divorce actions for the wrongs committed by her husband is barely worthy of consideration in any case (Fiedler v. Fiedler), and especially in a
negligence case. Such actions may be adequate to prevent future wrongs, but they certainly do not compensate for past injuries.86
Requiring husbands and wives to pursue redress through criminal and divorce actions would arguably be more disruptive to marital harmony than allowing tort actions.87
UtahÕs Open Court provision of the Utah Constitution, reads:
All courts shall be open, and every person, for an injury done to him in his person, property or reputation,
shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any
tribunal in this State, by himself or counsel, any civil cause to which he is a party.88
To deny a spouse the right to seek a civil remedy based on the doctrine of interspousal immunity would substantially dilute a plaintiffÕs remedy at law as allowed by the Utah
Constitution. Furthermore, in Utah, there are no alternative remedies for harms resulting from a spouseÕs unintentional torts. Therefore, the alternative remedies argument
should be disregarded as a justification for interspousal immunity.
V. CONCLUSION
It is clear that across the United States, interspousal immunity is a dying doctrine. For nearly twenty years, Utah appellate courts have simply not had the opportunity
to directly apply the decision in Stoker to an unintentional tort case between spouses domiciled in Utah. This has led many to believe that Utah law retains interspousal
immunity for unintentional torts. As shown above, the public policies supporting interspousal immunity are clearly outdated and no longer justify the affirmation of the
doctrine in Utah. Further, the policy considerations identified in Rubalcava are outdated and are no longer sound. All five of the arguments that were historically used by
jurisdictions across the United States in support of interspousal immunity lack substantiation, and are overinclusive and inconsistent, and, therefore, are unpersuasive.
Furthermore, Utah law expressly allows a wife to Òprosecute and defend all actions for the preservation and protection of her rights and property as if unmarried.Ó89 From the
language of the Utah WomenÕs Act and Article 1, Section 11, of the Utah Constitution, we must conclude that a spouse is given the right to sue in all matters. To dismiss a
plaintiffÕs action based on the doctrine of interspousal immunity would substantially dilute a remedy at law allowed by the Utah Constitution. Therefore, there is no logical
reason for an exception to the doctrine of interspousal immunity to remain in Utah common law.
Footnotes
1 Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963).
2 Utah Married WomenÕs Act, Utah Code Annotated ¤ 78-11-1 (1953, as amended).
3 Stoker v. Stoker, 616 P.2d 590, 592 (Utah 1980).
4 Genesis 2:24 ÒTherefore shall a man leave his father and his mother, and shall cleave unto his wife, and
they shall be one flesh.Ó
5 Laura H. Wanamaker, Note, Waite v. Waite; The Florida Supreme Court abrogates the Doctrine of Interspousal Immunity, 45 Mercer L. Rev.
903.
6 Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359, 361-62.
7 Id. at 364-65, see also Abbott v. Abbott, 67 Me. 304, 306 (1877),
overruled, MacDonald v. MacDonald, 412 A.2d 71 (1980).
8 See Utah Code Ann., Section 78-11-1 (1953, as amended).
9 Wanamaker at 905 (discussing W. PAGE
KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS ¤ 122 (5TH ed. 1984); See also Tobias, supra note 6 at 373-83).
10 Id.
11
W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS ¤ 122 (5TH ed. 1984) at 902; See also Lyons v. Lyons, 2 Ohio St. 2d 243, 244, 208 N.E.2d 533, 535 (1965).
12 Wanamaker, supra note 9 at 906.
13 Id.
14 Tobias, supra note 6 at 423-25.
15 KEETON, supra note 11 at 902.
16 Tobias, supra note 6 at 435
17 Wanamaker, supra note 9 at 907.
18 See Peters v. Peters 63 Haw. 653; 634 P.2d 586 (Haw. 1981)
19See La. Rev. Stat. Ann. ¤ 9:291 (West 1985).
20Taylor v. Patten, 2 Utah 2d 404, 275 P.2d 696 (Utah 1954).
21Id. at 696.
22Id. at 697 (citing Utah Code Ann. ¤¤ 78-11-1, 30-2-2, and 30-2-4 (1953, as amended)).
23Taylor, 275 P.2d 696.
24Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389 (1963).
25Id. at 391.
26Id. at 393.
27Stoker, 616 P.2d 590.
28Id. at 591.
29Id. at 591-92.
30State Farm Mut. Auto. Ins. Co. v. Mastbaum, 71 Utah Adv. Rep 30, 748 P.2d 1042 (1987).
31Noble v. Noble, 89 Utah Adv. Rep. 30, 761 P.2d 1369 (1988).
32Forsman v. Forsman, 111 Utah Adv. Rep. 6, 779 P.2d 218 ( 1989).
33Mastbaum,71 Utah Adv. Rep 30, 761 P.2d 136. at 1044-45 (Zimmerman, J., concurring).
34Noble, 89 Utah Adv. Rep. 30, 761 P.2d 1369 at 1375, n 7.
35Forsman, 111 Utah Adv. Rep. 6, 779 P.2d 218 at 220.
36Lucero v. Valdez, 884 P.2d 199 (Ariz. App. Div. 1 1994)
37Id. at 203.
38Id. at 205.
39Id. at 205-6.
40Tobias, supra note 6 at 441-43.
41E.g. see Shearer v. Shearer, 480 N.E.2d 388 (Ohio 1985).
42E.g. see Townsend v. Townsend, 708 S.W.2d 646, 650 (Mo. 1986).
43E.g. see Veazey v. Doremus, 103 N.J. 244, 249, 510 A.2d 1187, 1190 (1986).
44E.g. see Accord Note, Litigation Between Husband and Wife, 79 Harv. L. Rev. 1650, 1651 (1966).
45E.g. see Veazey, 103 N.J. 244, 249, 510 A.2d 1187 at 1190.
46E.g. see E. GOLANTY & B. HARRIS, MARRIAGE AND FAMILY LIFE 366, 453-54 (1982).
47E.g. see Townsend, 708 S.W.2d at 650.
48E.g. see Waite v. Waite, 618 So.2d 1360, 1361 (Fla. 1993).
49Id.
50E.g. see Miller v. Fallon County, 721 P.2d 342, 345 (Mont. 1986).
51Rubalcava, 384 P.2d 389 at 391.
52Tobias, supra note 6 at 449.
53Id. at 449-50.
54Rubalcava, 384 P.2d 389 at 391-92 (citing Brown v. Gossar 262 S.W. 2.d 480, (Ky. 1953).
55Waite, 618 So.2d 1360 at 1361.
56Id.
57E.g. see Lewis v. Lewis, 351 N.E. 2d 526, 532 (Mass. 1976).
58Tobias, supra note 6 at 451-52.
59Brown v. Gossar 262 S.W. 2d 480 (Ky. 1953).
60Id. at 484.
61See Waite, 618 So.2d 1360 at 1361; see also Tobias, supra note 6 at 452.
62Waite, 618 So.2d 1360 at 1362.
63Fernandez v. Romo, 132 Ariz. 447, 451, 646 P.2d 878, 882 (1982).
64Malan v. Lewis, 693 P.2d 661(Utah 1984).
65Id. at 674-75.
66Utah Code Annotated ¤ 41-9-1, 41-9-2 Repealed (1953, as amended).
67Merenoff v. Merenoff, 76 N.J. 535, 554, 388 A.2d 951 (1978).
68Id. at 960.
69Tobias, supra note 6 at 456.
70Id. (citing Oken v. Oken, 44 R.I. 291, 293, 117 A. 357, 358 (1922), overruled, Digby v. Digby, 120 R.I. 299, 388 A.2d (1978)).
71Id. at 457.
72Shearer, 18 Ohio St. 3d 94 at 99, 480 N.E2d 388 at 394.
73Tobias, supra note 6 at 423-25; see also Brown v. Brown, 89 A. 889; Hosko v. Hosko, 187
N.W.2d 236; Gilman v. Gilman, 95 A. 657.
74Rubalcava, 384 P.2d 389 at 392.
75Stoker, 616 P.2d 590 at 591-92 (citations omitted).
7692 A.L.R.3d 901 at 923-25.
77Utah Code Annotated, ¤ 30-2-4 (1953, as amended).
78Id. at 592.
79See Mutual of Enumclaw Ins. Co. v. Wiscomb, 611 P.2d 1304, 1305 (Wash. App. 1980).
80S.A.V. v. K.G.V., 708 S.W.2d 651.
81Id. at 652.
82Tobias, supra note 6 at 457.
83Id. at 464.
84See, e.g., Freehe v. Freehe, 500 P.2d 771, 774-75 (Wash. 1972),
overruled on other grounds, Brown v. Brown, 675 P.2d 1207, 1209 (Wash. 1984).
85Courtney v. Courtney, 184 Okla. 395, 87 P.2d 660.
86Id. at 401, 666 (Citations omitted).
87Tobias, supra note 6 at 465.
88Constitution of Utah, Art. I, ¤ 7 (Utah Code Annotated (1953, as amended)).
89Utah Code Annotated ¤ 30-2-4 (1953, as amended).
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