By Mark Cherniak As published in the Michigan Family Law Journal, November 2005; This article is included as originally written and published with some changes or updates only. It should be used for general information puposes, and not as a complete up to date version of the matters expressed. Thank you.
INTRODUCTION Married folks are not necessarily limited to serving each other "torts" that are tasty, consumed with coffee, and enjoyed for desert. The occasion may arise where one party feels the usual property settlement or other elements of a divorce proceeding are not sufficient to redress their perceived wrongs, and further remedies are necessary. Some divorces also address tort claims as marital assets or property. This article attempts to address what these issues may be under Michigan law, but limited to tort actions, as opposed to, for example, contractual remedies.
NO INTERSPOUSAL IMMUNITY Originally, litigation between spouses was barred by common low inter spousal immunity, the courts generally holding such litigation was against public policy, and rejecting assertions that prior versions of the relevant statute abrogated this common law. In 1963, the Legislature changed MCL 600.2001 to state: “Actions may be brought by and against a married woman as if she were unmarried." In Hosko v. Hosko(footnote 1), plaintiff wife sued her husband for injuries caused by his negligent driving. Defendant argued her case was barred by common law inter spousal immunity, contending that the 1963 statute did not change this, and was merely a rewording of prior statutes. The Michigan Supreme Court rejected this argument, holding that the 1963 statute permitted litigation between spouses, expressly adding "the clear language of the statute, also allowed a husband to sue his wife.” And so, the games could begin.
TORTS AND RECOVERY Even if we do not practice personal injury law, we did have to take torts in law school, and should recall a tort is a private or civil wrong causing injury, other than through a contract (footnote 2). lt is known more simply as personal injury litigation. An unofficial, but very important caveat for any personal injury lawyer is the ability to collect from the defendant, for the best case under legal principles can become useless, if the tortfeasor is not collectible. In entering this discussion, a brief overview of insurance coverage is necessary, which is the usual means of collecting a settlement or judgment in personal injury litigation between individuals. Whether a party is insured for liability is generally inadmissible at trial (footnote 3). This usually is not a problem in auto accident cases, as a jury recognizes we are required to have liability insurance on our vehicles, and they are not prone to think any judgment awarded is to be paid by the individual personally. This becomes less clear with homeowners' insurance, which juries may not know, in addition to the usual property damage claims, also covers personal injury claims like dog bites, slip and falls, and even non vehicle accidents occurring nowhere near the insured's home. Many homeowners’ claims are between family members or friends, and the plaintiff and plaintiff's counsel must wrestle with the dilemma of “suing grandma," even though the real entity in interest is the homeowner's insurer. This becomes even more problematic with certain claims between spouses, involved in, or contemplating divorce or separation. Vehicle accident cases are generally not a problem, whether divorce is, or is not involved, because the vehicle owner’s or operator’s insurance company would compensate the injured spouse in an accident caused by the other spouse. Homeowner claims between happily married spouses are rare, as there is no insurance coverage for "resident relatives" of the home under the policy language, nor for named insureds; in other words, The Does' homeowners' insurer will not pay policyholder Jane, for an accidental injury caused by her husband John. lt also does not make much sense to make one spouse pay the other "out of pocket" for an injury caused by that spouse, when they are happily married. Insurance coverage does not cover injuries caused by intentional acts, such as an assault and battery. The definition of intent is not limited to the tortfeasor's subjective state of mind, and is further controlled by whether on injury was "expected" given the nature of the act (footnote 4). A commonly cited example is, one cannot claim he did not intend to injure when he fired a shotgun into a crowded elevator. lf a spouse separates and changes legal residence, there should be insurance coverage under the other spouse's homeowners' policy, as he or she is no longer a resident relative (unless the relocated spouse remains a named insured under the policy). Thus, there may be a viable claim if the spouse returns to the home for a valid reason (does not trespass), like picking up the children, falls due to the other spouse's negligence, and is injured. lt becomes less clear, under the same scenario, if the spouse is bitten by a dog, the parties agree "belongs" to the other spouse; i.e., John's beloved hunting dog, that Jane despised. lf the parties are divorced or legally separated, with John being awarded the dog, the claim should be valid and covered by the homeowners' policy. But if they are not, and the dog's ownership has not been legally settled, the insurance company may take the position the dog is still community property, the parties' agreement the canine belongs to John notwithstanding, and Jane owns the hound too. Thus, she cannot be a plaintiff under Michigan's dog owner's liability statute if she owns the dog herself. While there are of course exceptions, generally lawsuits between spouses where a settlement or judgment is satisfied by an insurance company may not give rise to significant emotional consequences to either party. Of course the tortfeasor spouse may feel horrible about hurting the other, but that could occur regardless of the lawsuit itself. Some take the attitude that fortunately they were insured, there is a source of recovery, and that is why they purchased the insurance.
INTENTIONAL ACTS That changes when the litigation is for non-accidental acts, likely the most common in divorce or separation being fraud and domestic violence. In McCoy v. Cooke(footnote 5), plaintiff wife appealed the dismissal of her complaint for physical assault and intentional infliction of emotional distress, filed subsequent to the parties' divorce. The trial court's reasoning was, the issue of fault was fully litigated in the divorce proceeding, and that plaintiff was barred by collateral estoppel from re-litigating the matter. There was considerable testimony at the divorce trial concerning the repetitive abuse. The trial court held the abusive husband to be 7O% at fault for the marriage failing, and divided the marital property accordingly. The defendant also had to reimburse $2,OOO in mental health costs plaintiff incurred as a result of the abuse. The appellate court held the trial court erred in its application of collateral estoppel in dismissing the assault case. Their ruling explained res judicata prevents the re-litigation of the same claim, while collateral estoppel prevents the re-litigation of the same issue. Res judicata did not apply, as the divorce and tort claim did not constitute a single cause of action, a point the defendant conceded. Rather, the appellate court turned the tables on the abusive defendant, and ruled collateral estoppel properly applied, prevented re-litigating whether abuse occurred. Since the divorce trial judge expressly found defendant repeatedly battered his wife, that issue was established for the subsequent tort litigation. Thus, the only remaining issues in the tort matter were plaintiff's damages, and for defendant as an affirmative defense, to what extent plaintiff was already compensated for her damages through the divorce proceeding. Goldman v. Wexler(footnote 6), reached the same decision under similar facts and claims: The ex-wife's claim in tort for battery committed by her husband at the time, survived the prior divorce proceeding. The only significant difference was the parties were divorced by entry of a consent judgment, and there was no trial. The court pointed out that consent judgments are not to be given collateral estoppel effect, an additional reason plaintiff's tort action was not barred. lt was held, if the divorce record established defendant battered his wife, collateral estoppel would establish that issue in the tort action as well. Again, the defendant was allowed to contend as an affirmative defense, plaintiff was adequately compensated for the battery through the marital property division. As with most tort claims, plaintiff was not entitled to duplicative recovery. The lesson promulgated by Goldman, is that a release of all claims should have been incorporated in the divorce judgment, if the defendant intended the divorce to address all issues with his spouse. Courtney v. Feldstein(footnote 7) addressed a recurrent problem, allegations of fraud in a divorce property settlement. One of the major issues in the parties' divorce was the value of defendant husband's two corporations. Based on information supplied by the husband, a property settlement was reached with the understanding the properties were worth $115,000. Plaintiff wife later discovered her ex-husband sold the properties approximately one year after the divorce for over $1.2 million, and had been offered over $700,000 for the properties during the divorce proceeding. The court held res judicata did not bar a subsequent lawsuit for fraud. “As a general proposition, the principles of res judicata may not be invoked to sustain fraud." The court reasoned the plaintiff wife did not have a cause of action for fraud during the divorce, as the fraud did not occur until the unfair property settlement was incorporated in the divorce judgment. As such, res judicata did not bar the fraud claim as an issue already litigated, nor which could have been raised and litigated. ln contrast, the court in Gubin v. Lodisev, (footnote 8) held the plaintiff wife could not maintain a separate action for a fraudulently induced marriage, as the fraud was intimately part of the marriage and its dissolution. The underlying theme of Gubin was a sham marriage for one party to gain entry into the United States. The case also contains an enlightening discussion of the damages that could be sought for a party's wrongful conduct in inducing the marriage, and during the marriage itself. The defendant in Gubin appealed an award to plaintiff in the divorce proceeding of $113,087 in damages for fraud. The court found the evidence clearly supported plaintiff's claim defendant only married her to gain entry into this country from the former Soviet Union. After their marriage, the plaintiff had devoted "years" of effort before she succeeded in having her husband immigrate to the United States, only to have him "promptly" abandon her. The court distinguished the McCoy, Goldmon, ond Feldstein decisions, that here the fraud related to the very existence of the marital relationship, and allowing a separate action for the fraud would be duplicative litigation and a waste of judicial resources. Moreover, the plaintiff could pursue relief for the fraud in the divorce proceeding. The case was remanded to the trial court for a determination of plaintiff's expenses emanating from the fraud, through an award of alimony or property, rather than damages for the fraud independently. Relying on the oft-quoted precedent for division of property in Sparks v. Sparks (footnote 9), the appellate court advised the lower court to consider that plaintiff gave up earning capacity by delaying earning her doctorate degree due to defendant's fraudulent inducement of marriage. The expenses of getting the defendant into this country could be considered, as well as plaintiff's psychological expenses, for treatment needed as a result of defendant's actions. The court also rejected defendant's contention the monetary awards were excessive, because he did not have the ability to pay them. The award as a result of his fraud need not be premised on his ability to pay. On the other hand, the Gubin court rejected plaintiff's claim defendant's ill-begotten "green card" was a marital asset like a college degree could be. The court declined the opportunity to give a monetary value to citizenship in this country, further reasoning, the I.N.S. could always deport one who gained entry into this country illegally, i.e., through a sham marriage or otherwise.
LOSS OF CONSORTIUM A common subject of torts and marriage is the claim for a spouse's loss of consortium. Loss of consortium is a long recognized claim in Michigan law, by the spouse not physically injured, for the loss of society, companionship, conjugal rights, and services of the physically injured spouse. (footnote 10) The claim is strictly derivative of the primary claim by the injured party. (footnote 11) In other words, if the injured party does not prevail with their claim by proving a duty was owed and breached, which proximately caused injuries and damages, the loss of consortium claim of the other spouse is not reached. A spouse can also make a claim for the injured spouse's medical expenses, providing the claimant assumed responsibility for the expenses. (footnote 12) Loss of consortium at times is considered, but should not be, a "throw in" claim. Some juries simply do not comprehend the theory and come to the conclusion that you marry "for better or worse" and award little or nothing on the loss of consortium claim. lf the physical injury is not severe, a loss of consortium claim may detract from the credibility of the primary, physical injury claim. Another aspect to consider is joining both spouses as party plaintiffs exposes both of them and their jointly held property, i.e., the marital home, to collection, if for example, the defendant becomes entitled to mediation sanctions. The author does not suggest loss of consortium claims should not be pursued as a rule, but only that thought be applied if it will be worthwhile. lf there is a serious physical injury to one spouse, requiring the other to provide significant care and services, the loss of consortium claim could have considerable value. For example, one spouse suffers a closed head injurv and cannot be left unattended. Loss of consortium can raise a number of interesting issues in the event of divorce or separation. The claim accrues at the time of the tort, and a subsequent divorce or separation does not necessarily defeat the claim. lf the physical injuries and the consequences resulted in the marriage dissolving, a good claim or not so good may develop, perhaps depending on whom files for the divorce. lf the spouse not physically injured files, the jury may empathize with the spouse not physically injured under certain facts, or conclude the spouse is a scoundrel for not "standing by her man (or woman)" under different factual circumstances. lf the injured spouse files, using the same example of a closed head injury resulting in irrational thinking, the spouse not physically injured may have a very good claim for the loss of his or her long term marriage. Another paradox may surface if the parties disagree on the reason for the divorce or separation. For example, the physically injured party files for divorce on grounds having nothing to do with the tort committed nor its consequences, but the other party takes the position their spouse's accident did in fact lead to the marriage dissolving. This then may lead to the injured spouse not wanting their soon to be ex-spouse joining a loss of consortium claim in the tort litigation, which he or she legitimately feels may detract from the credibility of the primary case. The other spouse insists on pursuing the claim. Since the loss of consortium claim is derivative of the physical injury claim, the injured party's attorney is likely within their rights to refuse to pursue a loss of consortium claim for the soon to be ex-spouse, when so instructed. Can the consortium spouse retain their own counsel and join the case? Probably, and a mess may result. Loss of consortium aside, can the spouse not physically injured claim a right to part of the injured party's claim or recovery as property settlement in a divorce or separation? The answer likely lies with the customary property settlement rules, and depends on the given germane facts. The answer could be yes, if the spouse not injured incurred a financial loss, such as loss of income while caring for the injured spouse. It is less likely the spouse would be awarded any part of a recovery strictly for pain and suffering, other than any loss of consortium aspect.
CONCLUSION Hopefully this article has provided some insight to family law practitioners representing or contesting a party whom may have a tort claim against either a third party, or their spouse. While most divorces or separations likely do not involve additional tort claims between the spouses, it should at least be apparent we must pay heed to these actual or potential claims when involved in divorce proceedings, and represent our clients accordingly. _______________________________________________________________________________________ FOOTNOTES 1. 385 Mich. 39, 187 N.W.2d 236 (1971). 2. Actually, the author had to check in “Black's Law Dictionary”. 3. Michigan Rule of Evidence 411. 4. Auto-Owners v. Churchman, 44O Mich. 560 (1992). 5. 165 Mich. App. 662, 419 N.W.2d 44 (1988). 6. 122 Mich. App. 744, 333 N.W.2d 121 (1983). 7. 147 Mich. App. 70, 382 N.W.2d 734 (1985). 8. 197 Mich. App. 84, 494 N.W.2d 782 (1992), appeal denied, 442 Mich. 928; 503 N.W.2d 902. 9. 440 Mich. 141, 485 N.W.2d 893 (1992). 10. May v. William Beaumont Hospital, 180 Mich. App. 728, 448 N.W.2d 497 (1989). 11. Oldoni v. Liebermon, 144 Mich. App. 642, 375 N.W.2d 778 (1985). 12. Staszkiewicz v. Galvic, 13 Mich. App. 215, 163 N.W.2d 815 (l968). A husband is no longer automatically responsible to the health care provider for his wife's medical expenses, unless he specifically assumes responsibility by signing as a guarantor.