The plaintiff alleges that the defendant, Golden, an insurance agent, entered into a sexual relationship with his then-wife while attempting to sell an annuity. According to the plaintiff, the defendant’s conduct destroyed his marriage. The plaintiff sued the defendant along with his employer for criminal conversation, breach of fiduciary duty, intentional infliction of emotional distress, and negligent training, supervision, etc.
The defendants jointly moved to dismiss citing W.Va. Code 56-3-2a, which abolishes any tort claims for alienation of affections. The defendants argued that the claims pled by the plaintiff were, in substance, claims for alienation of affections. Accordingly, they were subject to the statutory bar. The trial court disagreed. The defendants then applied to the Supreme Court for a writ to prohibit these claims from proceeding to trial.
Whether claims arising out of an extramarital affair are precluded under W.Va. Code 56-3-2a even though, strictly speaking, they are not pled as claims for alienation of affection?
The Supreme Court began its analysis by discussing the origins of the torts of criminal conversation and alienation of affections.
“Criminal conversation is, quite simply, adultery.” Criminal conversation was recognized in the early English common law and became a part of the jurisprudence of 49 states, including West Virginia. The tort came under criticism in the 1930s, and by the beginning of this century had been abolished statutorily or judicially in all but a few states.
Alienation of affections is a related tort: “The gist of the tort of alienation of affections is…an interference with the marital relation that changes one’s spouse’s attitude toward the other.” In other words, the object of a claim for alienation of affections is to recover for the injured spouse’s loss of consortium—whether by adultery or by some other wrongful conduct.
The Supreme Court noted that the last reported case in West Virginia discussing criminal conversation was Kuhn v. Cooper, 141 W.Va. 33, 87 S.E.2d 531 (1955). Shortly after Kuhn was decided, the Legislature enacted W.Va. Code 56-3-2A which abolished all suits for “breach of the promise to marry or for alienation of affections.” The court placed special emphasis on Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989). Like the plaintiff here, the plaintiff in Weaver alleged that the tortfeasor had destroyed the injured spouse’s marital relationship. The complaint, however, carefully avoided pleading a claim for alienation of affections. Nevertheless, Weaver noted: “We must look to the substance of the plaintiff’s complaint and not merely to its form.” Because the plaintiff’s claim “[was], in essence, one for alienation of affections,” it was barred by W.Va. Code 56-3-2A. Using a similar analysis, the Supreme Court concluded that the plaintiff’s claim for criminal conversation was statutorily barred.
The Court also concluded that the plaintiff’s claims for adultery and for breach of fiduciary relationship were barred. The adultery claim was premised on W.Va. Code 61-8-3, which criminalized adultery. The Court rejected the plaintiff’s adultery claim for two reasons. First, the Legislature repealed the adultery law in June, 2010. Second, using the Weaver analysis, it was clear that the “substance” of the claim was to recover for impairment of the marriage relationship. Therefore, it fell within the statutory bar. For similar reasons, the Court also rejected the plaintiff’s claim for breach of fiduciary relationship.
Justice Loughry dissented, raising both procedural and substantive concerns. First, Justice Loughry complained that the majority never identified what “clear legal error” the trial court committed that warranted the issuance of a writ of prohibition. Regarding the substantive legal issue, he criticized the majority for “read[ing] language into West Virginia Code § 56-3-2A (2012) that unquestionably was not included by this state’s lawmakers.” Justice Loughry also argued that abolishing the tort of criminal conversation raised constitutional issues but the majority simply ignored: “[T]his court has never previously relied upon its authority to mold the common law of this state by usurping the constitutional duty imposed upon the legislature to repeal causes of action existing prior to our statehood.”
The result in this case is not unexpected. In fact, quoting Weaver, the majority noted that “marital harmony is best served by judicial noninvolvement.” This practical, hands-off approach loomed large in the thinking of the majority. In many ways, the decision in this case was presaged by Weaver and was the next logical step.
This case is especially interesting because it illustrates two very different views of the Supreme Court’s rule. The majority views the Court’s role expansively, finding that the Court is empowered to adjust--and even abolish--the common law where it “is not longer in harmony with the institutions or societal conditions of the present.” Justice Loughry takes a more narrow view, believing that only the Legislature has the power to abolish a cause of action that existed at common law prior to West Virginia’s statehood. These two distinct viewpoints will almost certainly square off again in future cases.