Barber v. Cincinnati Bengals, Inc.

Opinion by Judge ALARCON; Dissent by Judge KLEINFELD. ALARCON, Circuit Judge Dale Barber appeals from the dismissal of the action he filed on behalf of Victoria Cryt-zer’s minor children for loss of parental consortium. The aetion was brought against the Cincinnati Bengals, Inc., and certain members of that football team (the Bengals). Crytzer filed an action against the Bengals on April 10, 1992 for damages for personal injuries and for recision of a release of her claims. The claim for loss of parental consortium arises from the injuries allegedly suffered by Crytzer. On April 9,1993, a jury returned a verdict in favor of the Bengals on Crytzer’s recision claim. Although judgment was entered on [555] Crytzer’s recision claim pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, no judgment disposing of her personal injury claims has been entered. While Cryt-zer’s appeal of the judgment on the recision claim was pending before this court, the district court dismissed her minor children’s claims for loss of parental consortium. The district court ruled that Barber had failed to show that joinder with Crytzer’s action was not feasible as required by Washington law. The court also determined that Crytzer’s release extended to her minor children and extinguished their loss of parental consortium claim. Barber contends that the district court erred in dismissing the minor children’s loss of parental consortium action for failure to join because the allegations of the complaint demonstrate that it was not feasible to do so. Barber also contends that Crytzer’s release of all claims, executed prior to the filing of the minor children’s action, does not ■ bar their independent action for loss of parental consortium under Washington law. We vacate the district court’s order and remand with instructions that the court consider whether, in view of the fact that no separate judgment dismissing Crytzer’s personal injury claims has been entered, joinder or consolidation of this action with Crytzer’s pending causes of action is warranted. We also hold that the district court erred in concluding that, under Washington law, Crytzer’s release extended to and extinguished her minor children’s loss of parental consortium claim. I. Barber commenced this action on May 10, 1993, in Washington state court on behalf of Crytzer’s children for loss of parental consortium. The Bengals removed the action based on diversity jurisdiction. Thereafter, the Bengals filed a motion for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that Barber’s action had not been joined with Crytzer’s action as required by Washington law. The Bengals also asserted that the release of all claims executed by Crytzer extends to her minor children and therefore. extinguished any derivative claims that the children had against the Bengals. In this action, Barber alleges, inter alia, that, as a result of the Bengals’ tortious acts against Crytzer, her children have suffered a loss of parental consortium. The complaint also alleges that this matter could not have been joined with Crytzer’s personal injury claims until the permanency and severity of her injuries were known. In his opposition to the Bengals’ motion to dismiss, Barber asserted that joinder was not feasible, and that Crytzer could not release the claims of her children for loss of parental consortium. In granting the Bengals’ motion, the district court held that Barber’s action should have been joined with Crytzer’s action and that the release barred the children’s claims^ The district court also noted that the court' in Crytzer’s action “issued an order recognizing that plaintiffs pursuit of other claims was precluded and directing entry of judgment pursuant to Rule 54(b).” The district court further ruled that the language of the release upheld in Crytzer’s action “bars all claims, which includes the plaintiffs claims (‘heirs, executors, administrators, and assigns’ are listed in the Release).” ■ We havé read the Rule 54(b) order and judgment filed in Crytzer’s action. The or- ' der directing entry of judgment pursuant to Rule 54(b) in Crytzer’s action reads as follows: As this matter was bifurcated so that the claims relating to the validity of the contract were tried first, and there remain other claims by Plaintiff, as well as counterclaims by Defendants; and as the jury has returned a verdict holding the contract valid and precluding Plaintiffs pursuit of other claims; and as the Court made the following rulings at the close of trial: Granted Defendants’ Motion for Dismissal, pursuant to Rule 50(a), of Plaintiffs claims based on (1) ambiguity, (2) inadequate consideration, (S) violation of public policy, and ft) illegality; there is no just reason for delay and the Clerk of the Court [556] is hereby directed to enter judgment upon the verdict pursuant to Fed.R.Civ.P. 54(b). (emphasis added). The Bengals’ April 6, 1993 Rule 50(a) motion for judgment as a matter of law was directed solely at the insufficiency of Cryt-zer’s remaining legal theories in support of her recision claim. The Bengals did not request dismissal of the personal injury claims in this motion. The court’s direction to the clerk to enter judgment referred to the jury’s verdict on the factual issues regarding the validity of the release. On the same date that the recision claim was dismissed, the clerk entered the court’s judgment. It reads as follows: “It is ORDERED AND ADJUDGED by jury verdict that the contract between plaintiff and defendants is valid.” In reviewing the record and the docket entries, we found no reference to a dismissal of Crytzer’s personal injury claims. Moreover, no separate judgment disposing of Crytzer’s personal injury claims has been entered as required by Rule 58 of the Federal Rules of Civil Procedure. Rule 58 provides in pertinent part that “[e]very judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).” Fed.R.Civ.Pro. 58. Thus, until the court directs the clerk to enter judgment on the personal injury claims, they remain unresolved in the Crytzer matter. In dismissing the loss of parental consortium claims in this matter, the district court was apparently misled into the conclusion that a final judgment dismissing Crytzer’s personal injury claims had been entered. The Bengals' argued before the district court that Barber’s “offer to join the earlier lawsuit after final judgment and appeal is contrary to both state and federal law.” (emphasis added). The Bengals relied on Sohappy v. Smith, 529 F.2d 570, 574 (9th Cir.1976). In Sohappy, we affirmed the district court’s order denying a post-judgment motion for leave to intervene as a matter of right. Id. at 574. We held that the motion to intervene was untimely. We concluded in Sohappy that appellants had “not succeeded in showing any extraordinary or unusual circumstances that would justify their late intrusion into this suit.” Id. Sohappy is not controlling because, contrary to the Bengals’ representation, no final judgment has been entered dismissing Crytzer’s personal injury claims. II. Barber .contends that the district court erred in granting the Bengals’ motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A dismissal for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed de novo. Oscar v. University Students Co-Op. Ass’n, 965 F.2d 783, 785 (9th Cir.) (en bane), cert. denied, — U.S. —, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992): Jurisdiction in this matter is based on diversity and Washington substantive law governs. West v. State Farm Fire and Casualty Co., 868 F.2d 348, 350 (9th Cir.1989) (citation omitted). A district court’s interpretation of state law is also reviewed de novo. Id. (citation omitted). Washington recognizes an independent cause of action for loss of parental consortium. Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190, 195 (1984). In Ueland, the Supreme Court of Washington held that “a child has an independent cause of action for the loss of the love, care, companionship and guidance of a parent tortiously injured by a third party.” Id. The court 'also stated that the “separate [loss of] consortium claim must be joined with the parent’s underlying claim unless the child can show why joinder was not feasible.” Id. (emphasis added). The Supreme Court of Washington did not define the term “feasible” in Ueland. The Bengals ask us to apply the definition of the word “feasible” set forth in Huggins v. Sea Ins. Co. Ltd., 710 F.Supp. 243 (E.D.Wis. 1989). In Huggins, the district court concluded that a child must join in his or her parent’s action unless the claimant can “establish that it was impossible, impractical or not in the child’s best interest for his or her claim to be joined with those of the injured party.” Id. at 250-51 (citations omitted). [557] Huggins is factually distinguishable from the instant matter. In Huggins, the claim for loss of parental consortium was filed after judgment on the merits had been entered in the parent’s underlying tort action. Id. at 245. For that reason, the claim for loss of parental consortium could not be joined because a final judgment on the merits of the parent’s action had been entered. The record in Crytzer’s action shows that her personal injury claims are still pending in the district court. The district court’s conclusion that joinder was no longer feasible was based on its erroneous assumption that a final judgment dismissing Crytzer’s personal injury claims had been entered. III. Barber also contends that the district court erred in ruling that the release signed by Crytzer abolished her children’s rights and remedies against the Bengals. Barber asserts that Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 834 P.2d 6 (1992), expressly prohibits a child’s rights from being abolished where a parent executes a release purporting to terminate a child’s cause of action. The district court concluded that the children’s action for loss of parental consortium is barred because their mother released all claims against the Bengals. The district court stated that “Ms. Crytzer’s valid release of claims against defendants served to prohibit or abolish the underlying tort. Thus, plaintiffs claims are not cognizable.” The district court relied on Conradt v. Four Star Promotions, 45 Wash.App. 847, 728 P.2d 617 (1986), in support of its ruling. In Conradt, the court held that “[n]o claim for loss of consortium will arise if no tort is committed against the impaired spouse.” Id. 728 P.2d at 621. In Conradt, a husband and wife brought personal injury and loss of consortium claims against the operators of a racetrack for injuries the husband sustained in an automobile demolition race. Id. at 619. Prior to the race, Mr. Conradt signed a document entitled “Voluntary Waiver and Release from Liability and Indemnity Agreement,” in which he assumed the risk of injury, and released the promoters and others from liability to himself, his personal representatives, his heirs and his next of kin. Id. at 620 (internal quotations omitted). The court held that Mr. Conradt could not allege a cause of action against the operators of the race track because he assumed the risk of injury by signing the release. Id. The court also concluded that the release precluded Mrs. Conradt’s loss of spousal consortium claim. Id. at 621-22. The court reasoned as follows: No claim for loss of consortium will arise if no tort is committed against the impaired spouse. Here, the injured husband, by signing the release, entered into a contract expressly agreeing to participate in an undertaking posing a known risk. He assumed the risk and evidenced that assumption by signing the release. The husband thus previously abandoned the right to complain if an accident occurred. There can be no actionable negligence where no duty was owed to the person injured. Even though loss of consortium has been held a separate, independent, nonderiva-tive action of the deprived spouse and not affected by the negligence of the impaired spouse, nevertheless, an element of this cause of action is the tort committed against the impaired spouse. Moreover, a consortium claim by a lone spouse will not be recognized where the underlying tort has been prohibited or abolished. Here, because of the release, no cause of action arose from which a court could conclude a tort had been committed upon Mr. Conradt. Therefore, an element of the consortium claim was lacking and summary judgment dismissal was proper. [558] Under Washington law parents may not settle or release a child’s claim without prior court approval. Further, in any settlement of a minor’s claim, Washington law provides that a guardian ad litem must be appointed (unless independent counsel represents the child) and a hearing held to approve the settlement. [557] Id. at 621-22 (internal quotations and citations omitted). In the present case, unlike the circumstances in Conradt, Crytzer executed the release after the allegedly tortious conduct occurred. Barber argues that Conradt is not controlling in light of Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 834 P.2d 6 (1992). We agree. In Scott, the Supreme Court of Washington stated: [558] Since a ‘parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury. We hold that to the extent a parent’s release of a third party’s liability for negligence purports to bar a child’s own cause of action, it violates public policy and is unenforceable. Id. 834 P.2d at 11-12 (footnotes omitted). The district court erred in dismissing the loss of parental consortium claims based on the terms of Crytzer’s release. We vacate the order of dismissal and remand the matter with instructions that the district court determine whether joinder or consolidation of this matter with Crytzer’s personal injury claims is feasible since that matter is still pending. In so holding, we express no view as to whether joinder is still feasible under these circumstances. VACATED AND REMANDED.