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Hardy v. St. Clair
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 142
Docket:	Wal-99-107
Argued:	September 10, 1999
Decided:	October 15, 1999

Panel:RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.




BRENT D. HARDY et al. v. DAVID ST. CLAIR d/b/a Wiscasset Raceway

RUDMAN, J.

	[¶1]  Brent D. Hardy and Carie Hardy appeal and David St. Clair
cross-appeals from a summary judgment entered in the Superior Court
(Waldo County, Marsano, J.) concluding that a release signed by
Brent D. Hardy barred his negligence claim, but did not bar his wife's claim
for loss of consortium.  We agree with the trial court and affirm the
judgment.
	[¶2]  This action arises from injuries allegedly sustained by
Brent D. Hardy at the Wiscasset Raceway, a facility owned by David St. Clair. 
As a condition to Brent's service as a member of a pit crew supporting a race
car racing at the raceway, Brent was required to sign a document entitled
"Release and Waiver of Liability, Assumption of Risk and Indemnity
Agreement."  Brent was injured when a plank on a set of bleachers at the
raceway reserved for members of the pit crews collapsed under him.  The
trial court granted a summary judgment in favor of the raceway on the basis
that the agreement barred Brent's negligence claim, but concluded that the
agreement did not bar Carie's loss of consortium claim.  This appeal ensued.
I.
	[¶3]  The Hardys contend that the agreement is ambiguous and
violates Maine law and public policy and that the peril which caused Brent's
injury was not contemplated by the parties.  "Courts have traditionally
disfavored contractual exclusions of negligence liability and have exercised a
heightened degree of judicial scrutiny when interpreting contractual
language [that] allegedly exempts a party from liability for his own
negligence."{1}  Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). 
Accordingly, a release must "expressly spell out with the greatest
particularity the intention of the parties contractually to extinguish
negligence liability."  Id. (internal quotations omitted).  To discern the
parties' intention, we look to the plain language of the agreement.    
	[¶4]  The pertinent provisions of the Agreement state that, by
signing the document, Brent:
2.  HEREBY RELEASES, WAIVES, DISCHARGES AND
COVENANTS NOT TO SUE [Wiscasset Raceway]
FROM ALL 	LIABILITY [sic] . . . FOR ANY AND ALL
LOSS OR DAMAGE, 	AND ANY CLAIM OR
DEMANDS THEREFOR ON ACCOUNT OF INJURY TO
THE PERSON OR PROPERTY . . . ARISING OUT OF
OR RELATED TO THE EVENT(S), WHETHER
CAUSED BY THE NEGLIGENCE OF THE RELEASEES
OR OTHERWISE.
	. . . .
4.  HEREBY ASSUMES FULL RESPONSIBILITY FOR
ANY RISK OF BODILY INJURY, DEATH OR
PROPERTY DAMAGE arising out of or related to the
EVENT(S) whether caused by the NEGLIGENCE OF
RELEASEES or otherwise.
	. . . .
6.  HEREBY agrees that this Release and Waiver of
Liability, Assumption of Risk and Indemnity
Agreement extends to 	all acts of negligence by the
Releasees . . . and is intended to be as broad and
inclusive as is permitted by the laws . . . . 

The Agreement further provides:
I HAVE READ THIS RELEASE AND WAIVER OF
LIABILITY, ASSUMPTION OF RISK AND INDEMNITY
AGREEMENT, FULLY UNDERSTAND ITS TERMS,
UNDERSTAND THAT I HAVE GIVEN UP
SUBSTANTIAL RIGHTS BY SIGNING IT, 	AND . . .
INTEND MY SIGNATURE TO BE A COMPLETE AND
UNCONDITIONAL RELEASE OF ALL LIABILITY TO
THE GREATEST EXTENT ALLOWED BY LAW.
	[¶5]  According to the second and fourth paragraphs of the
Agreement, Brent cannot recover for any injuries "arising out of or related
to the EVENT(S)."  The term "EVENT(S)" refers to Wiscasset Raceway's
"Regular Races & 50 Lap Heavyweight."  Although Brent did not receive
injuries directly "arising out of or related to the events," his injuries were
related to the events and indirectly resulted from them.  The race events
did not directly cause the bleachers to collapse under Brent.  However, had
Brent not been participating in the race events, he would not have been on
the section of bleachers that collapsed because that section was reserved for
members of the pit crews and not open to the general public.   
	[¶6]  In light of other broader language in the Agreement, however,
this appeal does not turn on whether the Agreement expressly extinguishes
Wiscasset Raceway's negligence liability for injuries indirectly arising out of
the racing events.  The sixth paragraph provides that the scope of the
Agreement "extends to all acts of negligence by [Wiscasset Raceway] . . . and
is intended to be as broad and inclusive as is permitted by the laws."
Further, the last portion of the Agreement indicates that Brent intended his
signature to be "A COMPLETE AND UNCONDITIONAL RELEASE OF ALL
LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW."  Even when
strictly construed against Wiscasset Raceway, the Agreement "expressly
spell[s] out with the greatest particularity the intention of the parties
contractually to extinguish negligence liability."  Doyle, 403 A.2d at 1207
(internal quotations omitted).  In light of the plain language of the
Agreement, the trial court did not err in concluding that the Agreement
barred Brent's negligence claim.
II.
	[¶7]  By way of cross-appeal, Wiscasset Raceway contends that the
trial court erred in concluding that the Agreement did not bar Carie's loss of
consortium claim.  Wiscasset Raceway argues that, "under Maine law,
although a loss of consortium claim is often referred to as being both
'derivative' and 'independent,' such claims are often greatly limited by
statutory and common law defenses associated with the injured spouse's
cause of action."  Wiscasset Raceway further contends that, regardless, the
indemnification provision bars Carie's loss of consortium claim.{2}  In
response, the Hardys argue that Carie's consortium claim was independent,
and that Brent did not have the ability to release her claim without her
consent.
	[¶8]  "For centuries[,] courts have recognized a husband's right to
recover damages for the loss of consortium{3} when a tortious injury to his
wife detrimentally affects the spousal relationship."  Macomber v. Dillman,
505 A.2d 810, 813 (Me. 1986).  However, "[u]nder common law, a wife had
no cause of action for her loss of consortium occasioned by her husband's
injuries."  Dionne v. Libbey-Owens Ford Co., 621 A.2d 414, 417 (Me. 1993). 
In 1965, in Potter v. Schafter, we declined to "judicially legislate" such a
cause of action and, instead, deferred to the Legislature so that "the diverse
interests affected by such proposition may be heard."  Potter v. Schafter,
161 Me. 340, 341-43, 211 A.2d 891, 892-93 (1965).  In 1967, "[i]n
response to our decision in Potter v. Schafter, the Legislature enacted
section 167-A of Title 19[,] [which] provid[ed] that '[a] married woman may
bring a civil action in her own name for loss of consortium of her husband.'" 
Dionne, 621 A.2d at 417 (footnote omitted) (citation omitted).  Thereafter,
the Legislature repealed section 167-A and replaced it with the
gender-neutral section 302 of Title 14, which provides that "[a] married
person may bring a civil action in that person's own name for loss of
consortium of that person's spouse."  14 M.R.S.A. § 302.
	[¶9]  As an initial matter, the Agreement did not directly bar Carie's
consortium claim because she did not sign it and was not a party to the
contract.  A release is a contract that can only bar a claim if the claimant was
a party to the agreement.  See, e.g., Bowen v. Kil-Kare, Inc., 585 N.E.2d 384,
392 (Ohio 1992); Arnold v. Shawano County Agric. Soc'y, 330 N.W.2d 773,
779 (Wis. 1983).  Hence, the issue facing us is whether, by expressly barring
Brent's negligence claim, the Agreement indirectly barred Carie's
consortium claim.  Stated otherwise, we must determine whether a
consortium claim is "derivative" or "independent."
	[¶10]  Jurisdictions are divided over whether to treat a loss of
consortium claim as a "derivative" or "independent" cause of action with
regard to the underlying tort claim.{4}  See, e.g., McCoy v. Colonial Baking Co.,
572 So. 2d 850, 856-61 (Miss. 1990) (comparing positions of state courts);
Carol J. Miller, Annotation, Injured Party's Release of Tortfeasor as Barring
Spouse's Action for Loss of Consortium, 29 A.L.R.4th 1200 (1981) (analyzing
state and federal cases).  States adopting the derivative approach generally
conclude that a cause of action for loss of consortium is subject to the same
defenses available in the injured spouse's underlying tort action.  See Miller,
supra.  States adopting the independent approach generally conclude that a
consortium claim is not subject to such defenses.  See id.  
	[¶11]  Although we have heretofore declined to address whether a
consortium claim is "derivative" or "independent," see, e.g.,
Morris v. Hunter, 652 A.2d 80, 82 (Me. 1994); Box v. Walker, 453 A.2d
1181, 1183 (Me. 1983),{5} our case law lends support for the trial court's
conclusion that consortium claims are separate, independent causes of
action.  In Taylor v. Hill, 464 A.2d 938, 944 (Me. 1983), we recognized that
a consortium claim, "though derived from an alleged injury to the person of
[the claimant's spouse], constitutes a distinct and separate cause of action." 
Similarly, in Dionne, 621 A.2d at 418, we indicated that a wife's statutory
right to bring a consortium claim "belongs to the wife and is separate and
apart from the husband's right to bring his own action against the party
responsible for his injuries."  
	[¶12]  The express language of section 302 offers no support for the
conclusion that a consortium claim is entirely "derivative."  See 14 M.R.S.A.
§ 302.  To the contrary, section 302's provision that a consortium claimant
may bring a civil action "in that person's own name" suggests that the cause
of action is independent and separate from the underlying tort action of the
victim spouse.  14 M.R.S.A. § 302.  Further, we have recognized that the
Legislature, by enacting the statutory predecessor to section 302,
"establishe[d] a separate right to the wife."  Dionne, 621 A.2d at 418
(holding that damages wife recovered under consortium claim were not
subject to husband's employer's lien).  Although derivative in the sense that
both causes of action arise from the same set of facts, the injured spouse's
claim is based on the common law of negligence while the claim of the other
spouse is based on statutory law.  Each claim is independent of the other
and the pre- or post-injury release of one spouse's claim does not bar the
other spouse's claim.  A consortium claim is an independent cause of action,
and, therefore, the trial court committed no error in ruling that the
Agreement failed to bar Carie's consortium claim.{6}
	The entry is:
Judgment affirmed.
 
Attorneys for plaintiffs: James C. Munch III, Esq., (orally) Marvin G. Glazier, Esq. Vafiades, Brountas & Kominsky P O Box 919 Bangor, ME 04402-0919 Attorney for defendant: Richard L. Suter, Esq., (orally) Geore D. Hepner III, Esq. Suter & Hepner, P.A. 251 U.S. Route 1 Falmouth, ME 04105
FOOTNOTES******************************** {1} . Wiscasset Raceway cites Doyle v. Bowdoin College, 403 A.2d 1206, 1207-08 (Me. 1979) and Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983) in support of its contention that, "[u]nder Maine law, release and indemnity agreements exempting the releasee/indemnitee from liability for his or her own negligence are considered lawful and are not against public policy." In Doyle, 403 A.2d at 1207 n.2, we declined to address whether such agreements were unlawful and contrary to public policy, stating: Because we do not construe the documents executed . . . as releases or indemnification agreements, we have no occasion to reach the further issue whether contractual provisions which relieve a party from liability for that party's own negligence would be unenforceable and void as contravening public policy. See, e.g., Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963); Prosser, Torts § 68 (4th ed. 1971). In Emery Waterhouse Co., 467 A.2d at 993, we stated that "[i]ndemnity clauses to save a party harmless from damages due to negligence may lawfully be inserted in contracts . . . , and such clauses are not against public policy." {2} . Although we recognize that the indemnification clause contained in the Agreement may render this determination a pyrrhic victory, the existence of that clause, by itself, cannot eliminate the noninjured spouse's claim. {3} . The term "consortium" refers to "the nonpecuniary interests a person may have in the company, cooperation, affection, and aid of another." BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 208 (2d ed. 1995). "Consortium" means the "[c]onjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY 309 (6th ed. 1990). BLACK'S LAW DICTIONARY further states: Loss of "consortium" consists of several elements, encompassing not only material services but such intangibles as society, guidance, companionship, and sexual relations. Damages for loss of consortium are commonly sought in wrongful death actions, or when [a] spouse has been seriously injured through [the] negligence of another, or by [a] spouse against [a] third person alleging that he or she has caused [the] breaking-up of [the] marriage. [A] [c]ause of action for "consortium" occasioned by injury to [a] marriage partner[] is a separate cause of action belonging to the spouse of the injured married partner and [,] though derivative in the sense of being occasioned by injury to [the] spouse, is a direct injury to the spouse who has lost the consortium. Id. (citations omitted) (emphasis added). {4} . The terms "derivative" and "independent" are imprecise, and may be misleading. See, Jo-Anne M. Baio, Loss of Consortium: A Derivative Injury Giving Rise to a Separate Cause of Action, 50 FORDHAM L. REV. 1344, 1351-54 (1982) (noting that "there is no precise definition of a derivative action"). According to another commentator: Writers have observed that the conflict which has developed in such cases "suggests the need for basic explanations of which there has been something of a shortage" and that a court's adoption of either the derivative or independent approach "sounds more like a conclusion than a reason." The question confusing courts is whether the consortium claim is dependent upon the injury or the injured spouse's cause of action. Antonios P. Tsarouhas, Bowen v. Kil-Kare, Inc.: The Derivative and Independent Approach to Spousal Consortium, 19 OHIO N.U. L. REV. 987, 990-91 (1993) (citations omitted) (emphasis added). {5} . In Box v. Walker, 453 A.2d 1181, 1183 (Me. 1983), we declined to decide whether a consortium claim is "derivative" or "independent," but noted that "[a]n independent cause of action accrues when the plaintiff is damaged by the negligent conduct of the defendant; the law will imply nominal damages from any violation of the plaintiff's rights." Box v. Walker, 453 A.2d 1181, 1183 (Me. 1983). {6} . We need not determine whether a loss of consortium claim may be subject to traditional common law or statutory defenses to the claims of the injured spouse. We decide only that a release of the injured spouse's claim does not simultaneously release the loss of consortium claim of the noninjured spouse.