Luna Ex Rel. Lee v. Clayton

OPINION ON PETITION TO REHEAR

FONES, Chief Justice.

Defendant has filed a petition to rehear, asking this Court to declare its decision in the instant case to be nonretroactive as to these parties and of prospective effect only.

In Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 , 53 S.Ct. 145 , 77 L.Ed. 360 (1932), the United States Supreme Court announced that state courts could choose consistent with the Federal Constitution to apply those state court decisions which depart from established precedent in either a retroactive or prospective manner. The practice of prospective application only as to such decisions became known as the doctrine of nonretroactivity, or the “Sunburst” doctrine. Since the Sunburst case, the United States Supreme Court has adopted a posture of non-retroac-tivity only in those instances where (1) the decision at issue either establishes a new principle of law by overruling clear past precedent or decides an issue of first impression whose resolution was not clearly foreshadowed, (2) in light of the prior history of the rule in question, its purpose and effect, retrospective application will retard its prospective operation, and (3) the decision, if applied retroactively, “could produce substantial inequitable results” to the in *900 stant litigants. See, e.g., Chevron Oil Co. v. Huson, 404 U.S. 97 , 92 S.Ct. 349 , 30 L.Ed.2d 296 (1971). Accord, Cumberland Capital Corp. v. Patty, 556 S.W.2d 516 (Tenn.1977).

Defendant contends that the overruling of Hance v. Haun, supra, and our departure from the rule barring derivative suits for the wrongful death of a spouse resulting from the other spouse’s intentional tort mandates our giving the decision in the instant ease prospective application only since retroactive application would prejudice defendant who “could have reasonably believed at the time of the incident in question that he was immune from civil liability for his acts” and would impose an enormous burden of litigation upon Tennessee courts. We find defendant’s contentions to be without merit. We cannot accept that defendant would intentionally kill his spouse in reliance upon the doctrine of inter-spousal immunity as a shield from civil liability or that any spouse has heretofore placed reliance thereon in committing an intentional tort against the other spouse.

In Rogers v. Yellowstone Park Co., supra, the Supreme Court of Idaho abrogated the doctrine of interspousal immunity in its entirety and made its decision applicable to the litigants at bar, to all actions pending on the date the Rogers decision became final, and to all actions arising thereafter. Id. 539 P.2d at 577-78. Accord, MacDonald v. MacDonald, supra, at 75; Shook v. Crabb, supra, at 620; Merenoff v. Merenoff, supra, 388 A.2d at 963-64.

Our sense of fairness dictates that we adopt a similar “pipeline approach” here. We therefore think that this decision is not the type that requires pure non-retroactive application of the rule in question and apply our decision allowing wrongful death suits resulting from intentional torts between spouses to the litigants at bar and to those claimants who have filed similar wrongful death actions in which final judgment had not been rendered on the date of the release of the above decision. Otherwise, this decision is applicable only to those wrongful death suits resulting from intentional torts committed after the date of this opinion’s release.

Defendant’s petition to rehear is denied.

COOPER, BROCK, HARBISON and DROWOTA, JJ., concur.