Ard v. Ard

• Decision Date: 29 April 1982
• Docket Number: No. 60475,60475
• Citation: 414 So.2d 1066
• Parties: Sylvia Elaine ARD, a/k/a Elaine Clary Ard, and Allstate Insurance Company, Petitioners, v. Douglas Perry ARD, as Guardian Ad Litem for Benji Dwain Clary, Respondent.
• Court: Florida Supreme Court

Page 1066

414 So.2d 1066

Sylvia Elaine ARD, a/k/a Elaine Clary Ard, and Allstate Insurance Company, Petitioners, v. Douglas Perry ARD, as Guardian Ad Litem for Benji Dwain Clary, Respondent.

No. 60475.

Supreme Court of Florida.

April 29, 1982.

Edward P. Nickinson, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for petitioners.

John E. Venn, Jr. of Smith, Sauer & Venn, Pensacola, for respondent.

Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.

McDONALD, Justice.

The First District Court of Appeal has certified both that the following question is of great public importance and that its decision is in direct conflict with decisions of other district courts on the same question of law: ¹

WHETHER AN UNEMANCIPATED MINOR CHILD MAY MAINTAIN A NEGLIGENCE ACTION AGAINST HIS PARENT.

We have jurisdiction. ²

Benji Dwain Clary is the minor son of Sylvia Elaine Ard. The complaint alleged that she negligently unloaded him from a motor vehicle, thereby placing him in a dangerous and perilous position and that the infant sustained serious injuries when he was run over by another vehicle. It further alleged that, at the time of the accident, Sylvia Elaine Ard was covered by liability insurance with defendants, Allstate Insurance Company and Travelers Insurance Company.

The defendants raised the doctrine of parental immunity as a defense, and the trial court granted a motion for summary judgment on the basis of that immunity. On appeal, the First District reversed the trial court and allowed an action by an unemancipated minor child against his parent.

While we reaffirm our adherence to parental/family immunity, we hold that, in a tort action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent's available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent.

The doctrine of parental/family immunity did not have its origin in the common law of England as did interspousal immunity. See Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). Rather, this doctrine has been traced back to a Mississippi case which based its decision on the "peace of society ... [and] the repose of families." Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891).

Florida adopted this rule and has recognized it in several cases. Orefice v. Albert, 237 So.2d 142 (Fla.1970); May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla.1955). In Orefice the mother of a child killed in an airplane crash sought recovery in both her and her son's names from the owners of the plane. One owner was the boy's father, and, as to that claim, the trial court dismissed the suit. The court also dismissed the suit on behalf of the boy's estate brought against the father's estate. In affirming the dismissals this Court stated:

It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources.

237 So.2d at 145. Further, this Court has recognized the duty of parents to nurture, support, educate, and protect minor children, and a child has a right to enforce the discharge of this duty. Finn v. Finn, 312 So.2d 726 (Fla.1975). To reduce the available assets of the family through a straight suit is to reduce the amount available for support, education, and protection of the family as a whole.

Protecting the family unit is a significant public policy behind parental immunity. We are greatly concerned by any intrusion that might adversely affect the family relationship. Litigation between family members would be such an intrusion.

Recently, there has been a trend toward abrogating or limiting parental immunity. While many states still recognize this immunity, ³ the changes in contemporary conditions and public policy have caused numerous jurisdictions to restrict this doctrine where the policies behind it have lost their viability. In the jurisdictions that have abolished or limited the application of the doctrine, ⁴ a majority of the decisions deal with the negligent operation of a motor vehicle by one of the parents.

For many of these states, a major justification for this abrogation has been the development and widespread use of liability insurance. The presence of this type of insurance cannot create a liability where none previously existed, but, rather, forms the basis for the recognition of the change in conditions upon which the public policy behind the immunity is based. Several policy reasons have been relied on to justify this immunity. They include the preservation of domestic harmony and tranquility; depletion of the family assets in favor of the claimant at the expense of the other family members; danger of fraud and collusion between the parent and child when insurance is involved; interference with parental care, discipline, and control; and the possibility of inheritance by the parent of the amount recovered by the child. ⁵

Those courts that have recognized the use of insurance in their consideration of the question point out the fallacies that form the basis of several of these policies. In Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975), an unemancipated minor brought suit by her mother and next friend against her father for injuries received in an automobile collision. In a thorough examination of the immunity and the policy behind it, the Supreme Judicial Court of Massachusetts held that in a tort action for negligence (a) arising from an automobile accident and (b) brought by an unemancipated minor child against a parent the doctrine of parental immunity would be abrogated to the extent of the parent's automobile liability insurance coverage. The court stated:

[I]nsurance cannot create liability where no legal duty previously existed ..., it remains, nevertheless, a proper element in a discussion of the public policy supporting abrogation of parental immunity. "Where such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent's insurance carrier." Streenz v. Streenz, 106 Ariz. 86, 88 (1970).

369 Mass. at 362, 339 N.E.2d at 914. In analyzing the effect of allowing suit where liability insurance is involved the court stated:

When insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child's medical care and support without depleting the family's other assets. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal--the easing of the family financial difficulties stemming from the child's injuries.

Id. (footnotes omitted).

When recovery is allowed from an insurance policy the claimant will not force a depletion of the family assets at the expense of the other family members. As stated in Sorensen, rather than a source of disharmony, the action is more likely to ease the financial difficulties stemming from the injuries.

The possibility of fraud or collusion by family members in dealing with liability insurance has traditionally been an argument in favor of both parental and interspousal immunity. We recognize that the possibility of fraud exists in every lawsuit but reject the contention that such possibility still forms a valid justification for denying a child compensation for injuries negligently inflicted by the parent when the immunity is waived by the presence of insurance. On this point we agree with the comments that the Indiana Supreme Court made when it discussed fraudulent collusion between spouses in Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794, 797 (Ind.1972):

The possibility of fraud and collusion exists in all litigation. However, we are not convinced that the danger is so great when the plaintiff and defendant are also husband and wife that judicial relief should be summarily denied. Furthermore, it should not be overlooked that the testimony of both parties will be extremely vulnerable to impeachment at trial on the grounds of bias, interest and prejudice. The trial court's responsibility, indeed, its duty, to properly instruct the jury on the credibility of witnesses and the rules governing the weight of evidence will remain unchanged, and, as was stated in United States v. Freeman (2d Cir. 1966), 357 F.2d 606, 620, "... it cannot be presumed that juries will check their common sense at the courtroom door."

Allowing a waiver of immunity where there is liability insurance is a recognized policy in this state. In section 733.702, Florida Statutes (1979), the legislature has allowed for waiver of the three-month statute of limitations for filing claims on a decedent's estate in any proceeding to establish the liability of either the decedent or the personal representative for which there is casualty insurance protection. This extends to the limit of the casualty insurance protection. That section contains rigid deadlines as to the filing of claims and demands to close decedents' estates. In recognizing that an estate could be closed and claims against it still adjudicated, permitting late claims when covered by liability insurance allows for the swift administration of estates while still providing for equitable settlement of negligence actions.

Similarly, when the legislature waived the doctrine of sovereign immunity as to the torts of state and municipal employees and agencies, the original statute allowed...