13 V.I. 545


Civil No. 1975/720

District Court of the Virgin Islands Div. of St. Thomas and St. John

December 18, 1976

*546John R. Mayer, Esq. (Grunert, Stout, Hymes & Mayer) , St. Thomas, V.I., for plaintiffs

Geoffrey W. Barnard, Esq. (Isherwood, Colianni, Alkon & Barnard), Christiansted, St. Croix, Y.I., for Cleburne Truck & Body Sales, Inc.

Henry L. Feuerzeig, Esq. (Feuerzeig & Zebedee), Charlotte Amalie, St. Thomas, V.I., for Ramsay Motors, Inc.

Daniel A. Isaacson, Esq., Assistant Attorney General (Department of Law), Charlotte Amalie, St. Thomas, V.I., for Government of the Virgin Islands

YOUNG, District Judge


On August 10, 1976 defendant, Ramsay Motors, Inc., filed a motion to dismiss that portion of the complaint herein which alleged a cause of action on behalf of plaintiff Claire Benjamin, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon reviewing the written memoranda submitted in support of and in opposition to the aforesaid motion the Court denied the same per Order dated November 23, 1976. As the matter *547presented a relatively novel question of law, the reasons for the aforementioned disposition are expounded upon herein.

The instant matter involves, inter alia, an action for damages brought by Cyril Benjamin for bodily injuries he allegedly sustained as a result of the negligence of the various named defendants. Additionally, the complaint alleges that due to the injuries sustained by her husband, Cyril Benjamin, plaintiff Claire Benjamin has suffered a loss of her husband’s consortium thereby entitling her to compensatory damages. Defendant moved to dismiss that portion of the complaint pertaining to Claire Benjamin’s prayer for relief on the ground that the applicable law of the Virgin Islands does not recognize the right of a wife to recover for the loss of her husband’s consortium.

Pursuant to 1 V.I.C. § 4,1 Virgin Islands law, absent contrary local law or statute, incorporates the principles enunciated in the restatements of the law approved by the American Law Institute. Skeoch v. Ottley, 377 F.2d 804, 810 (3rd Cir. 1967). Although the Restatement of Torts entitled a husband to recover for the loss of his wife’s consortium incurred as a result of injuries caused to her by the tortious conduct of another, the Restatement provides:

A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests or for any expense incurred in providing medical treatment for her husband. Restatement of the Law, Torts (1938) § 695.

Some perspective is needed.2 At common law, when married women were under legal disabilities corresponding *548to their inferior social status, a wife did not have the capacity to maintain an action of her own at law. Any action for personal or other injuries to the wife was brought in the name of the husband and wife, and the husband was entitled to the avails of the action as of his own property.

The husband had, in addition, his own recourse at law against those who invaded the conjugal relationship. While his interest in his wife was originally recognized only in terms of her economic worth, the rights of the husband were gradually extended to include conjugal affection, society and sexual relations.

The wife had no rights, analogous to the husband’s, with respect to the marital relationship. If the husband was injured by a third-party, he could sue on his own behalf, and there was no thought that the wife had any legal claim to the husband’s services or companionship in the form of an action for third-party damage to the relationship.

With the advent of the married women’s acts in the mid-nineteenth century, the wife became competent to bring an action in her own behalf for injuries to herself and was afforded the right to retain the proceeds of such actions. The wife’s ability to recover for loss of her husband’s consortium remained unchanged, however, as courts uniformly held that these acts did not create new common-law rights, but merely authorized married women to bring actions on their own behalf to protect the rights they had at common law. Therefore, the court reasoned, since the wife had no cause of action for loss of consortium at common law, she acquired no new cause of action by the enactment of the married women’s acts.3

Thus, in 1938, when § 695 of the Restatement of Torts was officially adopted by the American Law Institute, said section reflected the then prevailing rule in the United *549States with respect to a married woman’s right to recover for loss of her husband’s consortium. Since 1938, however, the vast majority of courts have refused to countenance such a disparity in spousal consortium rights and, accordingly, have either provided for reciprocal causes of action4 or denied both spouses any claim for loss of consortium.5 By establishing a parity between the spouses, the courts have conformed to the prevailing view among the commentators.6

In light of the overwhelming body of case law in opposition to the rule stated in Restatement, Torts § 695, the American Law Institute in Restatement Second will state that both husband and wife have the consortium right on equal terms.7 As 1 VC.I.C. § 4 incorporates into the law *550of the Virgin Islands the rules expressed in the restatements of the law approved by the American Law Institute,8 the forthcoming revision of the Restatement would conceivably justify permitting plaintiff to maintain her consortium action in the instant matter. James v. Bailey, 10 V.I., 382 (D.C.V.I. 1974). However, the Fourteenth Amendment of the Federal Constitution and the Revised Organic Act of 1954 provide a much more compelling reason for permitting her to maintain said action in that the present statutory scheme denies a wife the equal protection of the laws.

While it has been maintained that classifications based upon sex are inherently suspect thereby warranting strict judicial scrutiny9 or, alternatively, that such classifications must be subjected to an intermediate level of review10 the Supreme Court has consistently held that such legislation need only be supported by some rational basis in order to be sustained.11 Thus a legislative classification based upon sex must merely “be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). The inquiry herein is thus reduced to whether the distinction as to sex bears any rational relation to the denial of a wife’s right to recover for the loss of her husband’s consortium under § 695 of the Restatement.

A thorough analysis of the pertinent case law reveals only three justifications for denying a loss of consortium action against a third-party tortfeasor: (1) the possibility of double recovery with respect to the husband’s claim for *551loss of earning capacity and the wife’s claim for loss of support;12 (2) the speculative nature of the damages;13 and, (3) the ramifications stemming from retroactive application of a judicial rule. While these objections are not without some merit they fail to provide any rational ground for restricting recovery to husbands only. Rather, they perhaps provide a reasonable justification for disallowing consortium actions by either spouse. The latter proposition, however, is not of concern to the Court herein.

The Restatement provides a husband with a cause of action for the loss of his wife’s consortium due to injuries she sustains as a result of a third-party’s misfeasance. He may recover from said third-party for the damage to his interests in the marital relationship, to-wit: services, love, companionship, society, affection, sexual relations. When the husband is injured, the wife suffers the exact same damages yet the present statutory framework leaves her without legal recourse. No reasonable suggestion can be offered any longer to explain the disparity in the spouses’ relative rights to secure recovery for loss of consortium. No reasonable distinctions may be made between the wife’s claim for negligent or intentional impairment of consortium and a similar claim by her husband.

In that the sexual classification found in the Restatement of Torts is without any rational basis, I hold that § 695 is *552violative of the equal protection clause and must no longer be followed in this jurisdiction.14

The rule that this Court now recognizes is that a spouse may maintain an action for loss of consortium against a third-party tortfeasor where said third-party has caused the other spouse to suffer bodily injuries. The right of action is a derivative right and accordingly may accrue only to the extent that the other spouse has a cause of action against the same defendant.15

With respect to the retroactive application of today’s holding, a wife will not, as a matter of sound administration and fairness, be permitted to initiate an action for loss of consortium — even though not barred by the statute of limitations — where the action of the other spouse for bodily injury was concluded by settlement or judgment prior to the effective date of this decision.

Benjamin v. Cleburne Truck & Body Sales, Inc.
13 V.I. 545

Case Details

Benjamin v. Cleburne Truck & Body Sales, Inc.
Decision Date
Dec 18, 1976

13 V.I. 545

Virgin Islands



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