July/August, 2010
High court reaffirms that marital community can be liable for intentional torts
by Andrew Bergh

Almost six decades ago, in the landmark case of LaFramboise v. Schmidt, 42 Wn.2d 198 (1953), the Washington Supreme Court adopted a two-pronged test for determining when a marital community is liable for an intentional tort committed by only one of the spouses. In a case decided earlier this year, Wilson v. Clayton, 168 Wn.2d 57 (2010), a unanimous high court removed any doubt as to whether LaFramboise remains good law.

In LaFramboise, a married couple was paid $35 per week to care for a young child whose parents were on vacation. During the period of entrustment, the husband committed indecent liberties on the child. At trial, a jury rendered a verdict against the couple and their marital community, based on an instruction that said the marital community was liable if the indecent liberties were found to have occurred while the victim was in the care and custody of the husband and the community.

In the ensuing appeal, the defendants claimed the community couldn’t be liable because the husband had committed the acts “individually” and acted outside the scope of his employment. Rejecting these arguments, the justices said the community was liable for the husband’s torts if the act constituting the wrong either (1) results or is intended to result in a benefit to the community, or (2) is “committed in the prosecution of the business of the community.” The community thus bore responsibility, the court reasoned, because the husband had committed the intentional tort while conducting community business.

Let’s fast forward 27 years to the high court’s decision in deElche v. Jacobsen, 95 Wn.2d 237 (1980).

In deElche, a woman who was raped by a married man brought suit against the husband-rapist but not his wife. There was no allegation the rape had occurred during community business. Although the rape victim prevailed, the husband-rapist had no separate assets with which to satisfy the judgment. The deElche court held that where a plaintiff wins a judgment against an insolvent tortfeasor spouse for a separate tort, the plaintiff may recover from the tortfeasor’s one-half interest in the marital community’s personal property. In the course of its opinion, the court gratuitously criticized LaFramboise as a case that found community liability “upon tenuous contacts with the community” and based on “emotional factors or overtones.”

Time to discuss the facts in Clayton v. Wilson.

The parents of Andrew Clayton first rented their home from Douglas and Mary Kay Wilson when their son was only eight or nine years old.

Despite his young age, Andrew was hired almost right away by the Wilsons to perform yard work on the rental house and other properties that they owned. In the course of the next six or seven years, Mr. Wilson sexually abused Andrew over 40 times. Each time, the contact occurred after Andrew had completed the day’s work. Each time, Mr. Wilson didn’t pay Andrew until that day’s sexual abuse was finished. And each time, Mr. Wilson used community assets to pay Andrew for his work.

Once he turned 18, Andrew broke his silence and reported the sexual abuse to the police. Within three weeks of his arrest, Mr. Wilson and his wife executed a property settlement agreement that immediately transferred $1.6 million – about 90 percent of the community assets – to Ms. Wilson. Their marriage was dissolved only four months later.

Andrew later sued the Wilsons for damages in King County Superior Court. A bench trial resulted in an award for approximately $1.4 million, including $1.2 million for emotional distress. Since the trial court also found the marital community liable, judgment was entered against Mr. Wilson separately and against his former wife as a jointly and severally liable judgment debtor. The trial court also voided the Wilsons’ property settlement agreement on the ground of fraud, and enjoined them from disposing of any former community property without court approval.

The Court of Appeals (Division One), relying heavily on LaFramboise, affirmed in a published decision. Clayton v. Wilson, 145 Wn. App. 86 (2009). The high court in due course granted the Wilsons’ petition for review to decide, among other things, whether their marital community was liable for Mr. Wilson’s intentional torts.

As discussed above, the deElche court had criticized LaFramboise because it purportedly imposed community liability by using “tenuous contacts with the community” and “emotional factors or overtones.” In addition, the holding in LaFramboise had spawned a “practice among lower courts of stretching community liability to apply to situations where it was questionable.” 168 Wn.2d at 64. The Wilsons thus claimed that deElche had “modified” the two-pronged approach to community liability adopted by LaFramboise – and that Division One’s reliance on LaFramboise had been “misguided.”

The Clayton court freely acknowledged that its subsequent criticism of LaFramboise had “generated [unfortunate] confusion.” But just as readily, the justices went to its defense:

Even though we decided LaFramboise more than a half-century ago – not to mention that we cast stones at it in deElche – LaFramboise’s approach to community liability remains good law. The deElche case altered our approach to liability only for separate torts, not community torts. As Professor Cross stated:

It appears probable then, that deElche stands only for the proposition that a separate tort creditor can reach the tortfeasor spouse’s half interest in community personal property and perhaps in community real property, in those situations involving purely personal wrongs having no conceivable connection with community property or affairs.

168 Wn.2d at 65 (quoting from Harry M. Cross, The Community Property Law (Revised 1985), 61 Wash. L. Rev. 13, 140 (1986) (court’s emphasis)).

Having laid to rest any notion that LaFramboise was outdated precedent, the Clayton court concluded that the Wilsons’ marital community was liable under LaFramboise’s second prong. How so? Because from the outset, Mr. Wilson had “linked” the sexual abuse with the management of the community business:

Mr. Wilson used yard work as a means to groom the young boy. The abuse always occurred within the context of yard work, which consisted of community business. Mr. Wilson sexually abused [Andrew] while overseeing him as an employer, supervisor, landlord, and caretaker. The marital community benefitted from [Andrew’s] labor. Mr. Wilson paid [Andrew] for his work with community funds, and only after he finished abusing [Andrew] on each occasion. Given the breadth of LaFramboise’s second prong, these facts point confidently toward community liability because Mr. Wilson’s torts occurred while he was on ‘some community errand, affair, or business at the time of the tort.’

168 Wn.2d at 65-66.

In so holding, the justices rejected Ms. Wilson’s argument that the marital community’s liability should be excused because her former husband’s intentional sexual tort “brought him outside the scope of community business.” To support this contention, Ms. Wilson cited numerous cases involving the employer-employee/master-servant relationship. But those cases were all distinguishable, said the court, because they failed to address liability of a marital community.

Since most liability policies contain exclusions for intentional acts, the prosecution of an intentional tort can produce only a pyrrhic victory if the tortfeasor is insolvent. As in Clayton v. Wilson, however, some intentional tortfeasors, along with their spouses, have sizable marital estates. Now that LaFramboise has been reinvigorated, its two-pronged approach to imposing marital liability should definitely be kept in mind in cases where the facts point towards the commission of a community tort, as opposed to a “purely personal wrong.”

I should add that the Clayton court likewise affirmed the trial court’s ruling that the Wilsons’ property settlement agreement was void on grounds of fraud. The opinion should be required reading in the event you handle a case, whether based on intentional or negligent misconduct, where the alleged tortfeasor and spouse try to insulate their assets through phony transfers or fraudulent agreements.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.