*1 SCHWENNEN, Elizabeth M. Executor Schwennen, Estate John G.
Jr., Deceased, Appellee,
v. ABELL, Appellant, T.
William Iowa,
Floyd County, Appellee. ABELL, Cross-Petitioner, T. SCHWENNEN, Karl Defendant
John
to Cross-Petition. ABELL, Appellee, E. SCHWENNEN,
Elizabeth M. Executor of Schwennen, Jr.,
the Estate of John G.
Deceased; Schwennen, John Karl Iowa,
Floyd County, Appellees.
No. 86-1674.
Supreme Court of Iowa.
Sept. 21, 1988.
Larry Randall, L. Anfinson of Anfinson Luce, Waterloo, & appellant for William T. Abell. Erb,
Judith O’Donohoe of O’Donohoe & Frye, City, Charles appellee Mary for E. Abell. Miller, Pearson,
Donald Gloe, H. Gloe of Bums, Cowie, Beatty P.C., Decorah, & appellees Schwennens.
CARTER, Justice.
This case comes to us multiple appeals
following entry
judgments
in consolidat-
negbgence
ed automobile
actions. The is-
sues raised all relate to the effect of an
injured spouse’s
the trial of the
spouse’s
other
claim for loss of consortium.
purposes
For
of discussion we will refer to
spouse
deprived spouse.
the claimant
as the
husband, William,
E. Abell’s
injured
driving
when an automobile he was
collided with another
automobile driven
John Karl Schwennen and owned
John’s
father,
Schwennen,
John G.
Jr. This acci-
August
dent occurred on
1982. The
elder
passenger
Schwennen was a
in the
automobile
was killed
the collision.
Schwennen,
John G.
Jr.’s estate
an action
William based on the
alleged negligence
latter’s
causing
collision.
seeking
William counterclaimed
injuries
for the
which he sus-
alleged
tained in the
He
crash.
that John
negligent
Karl
causing
Schwennen was
the collision and that the Schwennen estate
vicariously
liable
Iowa Code sec-
tion 321.493
3, 1983, Mary brought
Mary’s judgment against
inde-
on her
On March
an
loss of consortium claim.
pendent
action
the Schwennen es-
tate,
Schwennen,
Floyd
John Karl
II. The
Fault on
William’s
Iowa,
Effect of
County,
seeking
to recover
loss
Liability
Against
to be Assessed
aid, services, affection, society, and com-
*3
of
Remaining
the
Defendants.
injuries
of
panionship as a result
sustained
Although Mary virtually
in
This action
concedes that
by William the collision.
was
fall,
judgment against
her
William must
pending
the
action.
consolidated with
other
sought
protect
against
she has
herself
Shortly prior to trial of the consolidated
eventuality by cross-appealing from
that
actions, Mary
petition
in-
amended her
judgment against
the
de-
Schwennen
clude William as an additional defendant
Floyd County.2
and
fendants
On this
against
her loss of consortium claim
whom
cross-appeal
argues
if
she
she had no
made.
legal
against
then his
fault
claim,
In the trial of
improperly
apportion-
included in the
damaged
jury found that she had been
the
aggregate
among
ment of
fault
the
$85,000.
apportioned
It
in the amount
premise,
interpo-
Applying this
she would
among the defendants as follows:
apportionment
by
the fault
late
made
William,
percent;
sixty-three
the Schwen-
jury
twenty-seven thirty-
so as to ascribe
defendants,
twenty-seven percent;1
nen
sevenths of the
to the
percent.
Floyd County, ten
Because
and
thirty-sev-
and ten
Schwennen defendants
apportioned to
more
the fault
William was
Floyd County.
enths to
aggregate,
fifty percent
judg-
of the
than
urge
The Schwennen defendants
against him
the full
ment was entered
theory
in
did not assert
the dis-
of the
The other defend-
amount
verdict.
may
trict court and
not now make such
only to
in
adjudged
ants were
be liable
that,
appeal.
argue
They
claim on
also
in
proportion to the share of fault ascribed to
event,
any
in the trial of a loss of consor-
them.
fault,
involving comparative
tium claim
deprived spouse’s claim should be reduced
apportioned
injured
the fault
to the
Spouse
Liability
Injured
I.
Loss
spouse.
by Deprived
Consortium Claim
Spouse.
chapter
A. Applicability
Iowa Code
668. At the outset we must consider the
the district court
The
comparative
legis-
extent to which
20,
on
1986. On De
was entered
October
presently contained in
lation
Iowa Code
17, 1986,
opinion
this court filed its
cember
applies
present
to the
case.
Barr,
in
103 statutory which within right urge falls defi- D. Waiver issue on legally and which is nition sufficient appeal by position taking inconsistent in support respect the claim. With to a third- We trial court. next consider the defendant, party this when de- occurs a that, Schwennen defendants’ contention be in third-party fendant bases Mary cause claimed in the district court in part or on some fault whole that William should be por saddled with a third-party defendant toward claimant tion the aggregate she has waived legally which would be sufficient to render any urge contrary position upon liable the same indivisible appeal. on this frequently recog We have injury. Reese, claim for the same See 379 ordinarily questions nized that present not 6; 668.5(1). at N.W.2d Iowa Code § ed to and passed on the trial court cannot be or raised on appeal; reviewed present case, place did theory under a case is in tried William’s fault toward her in issue the trial court theory should be the upon claiming directly him. As we have appeal which the Kartridg based. See however, opinion, determined earlier Department Revenue, Pak v.Co. such legally claim based on (Iowa 1985); N.W.2d holding. sustainable Shill v. McIntosh Careage placed Corp., Schwennen defendants also Wil 420-21 (Iowa 1984). liam’s fault toward issue a third- party claim for contribution. That claim not, however, This rule is with lacking legal efficacy also a result of exceptions. recognized out no Wolfe legally
McIntosh. Because sustainable Graether, (Iowa 1986), theory recovery may predicated on reversal appeal Mary, William’s fault toward his fault *6 require claim may one reversal of the in played appor should have a role the judgments on entered other claims even of aggregate tionment fault under section no independent where error has been estab 668.3(2)(b). Quoting lished the latter claims. from present The action involves consol (1958), Appeal 5B C.J.S. & Error multiple idated claims claim may we stated that this occur where “the If, in involving multiple ants. actions cause of action is such a nature that the claimants, the a fault one claimant is not rights interdependent are issues in legally determining viable issue the injustice might to result from a reversal as rights claimant, separate another verdict less than all the at Id. 659. We [claims].” forms must proper be utilized to obtain a princi this is a situation this believe where apportionment of causal fault as to each ple applied. should be Obviously, claimant.3 the trial court did The record reflects was forced present not utilize this method in the case against to claim William as a direct conse- Mary’s because it believed that claim quence of the decision of the Schwennen against legally William was sustainable. to from defendants seek contribution him consequence of being wrong on that liability Mary. for their to issue, applica- In the however, percentage is that the 668.3(2)(b) presence tion of section the of a apportioned fault to William has distorted third-party siphon- can in percentage the defendant result properly of fault to as be ing portion aggregate a to the off fault from cribed Schwennen defendants and Floyd County. against plaintiff the defendants the The combined fault of whom the claiming. is can in plaintiff latter defendants should totaled This result a have 100% personally receiving of the causal in who not at involved is less recovery. than full Jury applicable. jury 3. The current version of Iowa Uniform be otherwise should also jury Instruction 400.4 advises the that the court advised in such situations that the fault of an- will not reduce one claimant’s other claimant the should not be considered in ar- riving except fault of another is at the fault. claimant where fault 100% of causal imputed statutory under common-law or rules compara of our A salient feature one’s self such protect to In order must, Mary, provision in sec legislation as did plaintiff tive fault situations third-party de- 668.3(5) made directly jury must be claim tion application for leave apportion fendant. of the effect of its aware this made it clear that petition amend her recovery. on the claimant’s ment claiming against Wil- reason for Reese, at we found it claim unsustainable legally Her liam. for the court to fail error be reversible was, effect, prompted against William give or to mislead on this matter instruct legally unsus- defendants’ the Schwennen respect with thereto. ing instructions him. third-party tainable present given jury instructions position premise into that Wil litigating based on As a result case were forced, was, had no avenue subjected, she he to some could as which liam The claims alternative. arguing fault. When William’s allocation of causal jury under to be submitted interpolated had disregarded the ver fault is responsible theory to whom the single by Mary have a sub suggested will dicts question has Because this parties were. on the Schwen- stantially different effect determined, Mary should be only now been Floyd County than the defendants and nen have her opportunity to granted another them to have perceived jury would have proper manner. claim submitted This instructions. the trial court’s believe, circumstance, requires that the Disposition. Required III. among the remain apportionment of fault disposition consider the Finally, we must tried anew. ing parties must be of Wil- appropriate as a result believe, however, that it We do having improperly sub- been liam’s concerning retry issues Mary argues necessary that the jury. mitted to the process Mary’s damages. The by a may correct the verdict the total amount court may suggests pursuant to section interpolation. She jury was instructed by disregarding William’s accomplished 668.3(2)(a) determination was that this thirty- assessing twenty-seven any of fault and the fault of irrespective of be made remaining aggregate fault sevenths it the circumstances Under *7 ten thir- defendants and to the Schwennen any error commit not assumed that will be Floyd County. For ty-sevenths thereof to of fault would apportionment ted on the sug- find this discuss we reasons which we jury’s determination as corrupt the gestion to untenable. by damages suffered amount of total Knox, See, 375 Mary. e.g., Industries, Rinkleff Nichols Westfield retrial, (Iowa 1985). Upon 269 N.W.2d 1985), (Iowa 401-02 380 N.W.2d damages Mary’s will be total amount ap the elimination on considered whether the amount established deemed to be all against some but not peal of claims trial. jury at the initial pur trial for requires a new defendants rendering apportionment poses of a new against William Mary’s judgment remaining parties. among the causal fault Her is reversed. deciding test for suggested that the reversed and the defendants Schwennen remaining question is not whether that claim for a retrial of is remanded case in a result might a different parties obtain establishing proper ap purposes of for rather, any injustice trial, but, whether new those of causal fault between portionment original trial as parties at the befell those County. Their com Floyd defendants and claims submitting improper result of the causal total fault should 100% bined Judged by this Id. against other against the Mary’s fault involved standard, the issue of the we conclude Floyd Because this action. parties to aggregate fault proper apportionment the action its longer party County is no and defendants the Schwennen between released as that of a shall be treated retried. Floyd County must be 668.2(3).4 party under section Costs of this band’s same fault. Either a husband appeal fifty percent are assessed should be made to pay for consortium loss fifty percent E. Abell and to the Schwen- derived from his own or others nen defendants. should not be made pay for it. Because I holding think our McIntosh was I REVERSED AND REMANDED.
think the majority holding in this case is HARRIS, All except Justices concur wrong.
J., McGIVERIN, C.J., SNELL, and and majority holding in effect allows for J., who dissent. joint and several in contravention HARRIS, (dissenting part). Justice of Iowa Code section 668.4.1 This is what really happens when other defendants can judicial
A opinion importance, draws its be made to answer for William Abell’s says, from what it but from what 63% it of the fault. Although holds. the majority opinion re- flects exhaustive research and careful majority says, because there is no scholarship it nevertheless strikes me as viable claim Abell, William he practical flawed because of its effect. I should not be considered pur- dissent from division II C because I believe poses of allocating general fault. This rule holding plumb compa- out with the supported by indeed cited, the authorities rative fault act and holdings. with our own but it should apply here. None of the The facts important are they because are cited cases involved a loss of consortium extreme emphasize and the incongruity of Pittman, See Peterson v. 391 N.W. majority position. Mary E. Abell’s con- (Iowa 1986); 2d Reese v. Werts sortium claim stems from an automobile Corp., 1985). Mary’s husband, collision. Abell, may rule seem enough reasonable driving a car which collided with one general application pat- but it becomes driven Mary’s Schwennen. loss of con- ently injected unreasonable when it is into sortium claim brought against her hus- a loss of consortium claim. Consortium
band, and, the other driver because of its unique. They claims are involve close fam- duty to maintain the intersection where the ily relationships compensate for volun- occurred, accident Floyd County. A jury tary which, said, services we have cannot fixed damages $85,000 at and as- legally McIntosh, exacted. Abell, sessed fault to William 63% 27% at 518. Schwennens, Floyd County. 10% Although legal the same ratiocinations My difference with majority is on the employed by majority would have question of whether suggested liability, no we held in McIntosh judgment against the other defendants *8 that a wife cannot recover from her hus- should be reduced the percentage of negligence band when his causes her a loss assigned to her majori- husband. The of consortium. Id. But what the ty not; thinks it should I think it should. McIntosh, away hand took the left hand Barr, McIntosh v. majority holding. restores under the (Iowa 1986), we held that a husband is Others are made to answer for the hus- not liable to his wife for loss of consortium band’s even a consortium claim. injuries when his part result in from his If, negligence. believe, own I unwilling this is In the end I am to extend liabil- law, sound practical ity it makes no sense to for William’s fault to other defendants allow recovery against persuaded others for the hus- I am illogi- because it would 4. July Because this action was filed before 1. Section 668.4 states: Floyd County the fault of as a released In actions under this [com- party may only purposes fault], considered for parative joint the rule of and several apportioning fault under 668.4. It cannot be apply shall not to defendants who are utilized to reduce claim as otherwise fifty percent found to bear less than provided in assigned § 668.7. total fault to all wrong. Having refused cal and recovery against negligent
consortium liability to transfer his I would not
husband less at fault who were
other defendants he
than was. entry court’s
The trial must, I against William
favor But
agree, be reversed. negligence those whose
awards reduced injury an should be
contributed injured spouse. assigned to the
by the fault SNELL, J.,
McGIVERIN, C.J.,
join this dissent. JONES, Appellee,
Anthony S. MOINES CIVIL SERVICE
DES
COMMISSION, Appellant. OF PRO ASSOCIATION
DES MOINES LOCAL FIRE FIGHTERS
FESSIONAL Jones, Anthony Appellees,
NO. 4 and S. MOINES,
CITY OF DES
Iowa, Appellant.
No. 87-1301. of Iowa.
Supreme Court
Oct. 1988. 18, 1988.
Rehearing Denied Nov. *9 Sol., Mickle, Des City
Nelda Barrow Moines, appellants. and Linda G. Hanson E. Gribble
Charles Moines, P.C., Gribble, Des Sayre & appellees.