Bonkowsky v. Bonkowsky

• Decision Date: 10 February 1982
• Docket Number: No. 81-270,81-270
• Parties: , 23 O.O.3d 188 BONKOWSKY, Appellant, v. BONKOWSKY, Appellee.
• Court: Ohio Supreme Court

Page 152

69 Ohio St.2d 152

431 N.E.2d 998, 23 O.O.3d 188

BONKOWSKY, Appellant, v. BONKOWSKY, Appellee.

No. 81-270.

Supreme Court of Ohio.

Feb. 10, 1982.

Weisman, Goldberg & Weisman, Fred Weisman and Howard W. Mishkind, Cleveland, for appellant.

Kitchen, Messner & Deery and Charles W. Kitchen, Cleveland, for appellee.

PER CURIAM.

Appellant raises the previously reviewed issues that interspousal immunity policy discriminates against spouses without a valid or rational purpose, and deprives them of equal protection of the law under Section 2, Article I of the Ohio Constitution and under the Fourteenth Amendment to the United States Constitution. The additional argument raised by appellant is that such policy should not be followed in this state where there is shown to be liability insurance present under which policy the spouse's claims may be satisfied.

The policy in Ohio relative to the principle of interspousal immunity has most recently been reaffirmed in Varholla v. Varholla (1978), 56 Ohio St.2d 269, 383 N.E.2d 888, wherein the majority of this court (Justice William B. Brown, dissenting), at pages 269-270, 383 N.E.2d 888, stated:

"The same issue was before this court in Lyons v. Lyons (1965), 2 Ohio St.2d 243, 208 N.E.2d 533, where we held that such actions were barred by interspousal immunity. Our reasons were threefold: (1) the immunity promotes marital harmony by discouraging otherwise litigious spouses from pursuing real or fanciful claims to the detriment of the family unit; (2) the immunity prevents fraud and collusion at the expense of tactically disadvantaged insurance companies; and (3) as this involves a matter of public policy, changes in this area must emanate from the General Assembly, not the courts."

Relative to the argument that the constitutionality of this principle should be viewed in the same manner as this court had determined the unconstitutionality of R.C. 4515.02, the guest statute in Ohio, this court stated at page 270, in the opinion:

"We think it sufficient to state that the interspousal immunity doctrine, with its inherent differential treatment of spouses and non-spouses, reasonably relates to the legitimate state interest of fostering marital harmony and preventing fraud and collusion. The difference between this doctrine and R.C. 4515.02 lies in the higher state concern for regulating marriage and the greater potential for fraud stemming from the marital relationship, where an insured defendant spouse stands to benefit personally from losing a lawsuit instituted by his spouse. * * * "

Appellant argues here, as appellant did in Varholla, that the reasons supportive of the basic principle of interspousal tort immunity are no longer viable in Ohio. Answering, this court, in Varholla, held that appellant's contention could not be accepted "in disregard of clear precedent."

We are in agreement with the thought that legal precedent should not be a straitjacket to an appropriate change of the legal policies of this state, especially where those policies are established by the common law pronouncements of this court. However, where this court has recently reviewed and spoken upon the viability of such policies, precedent of such pronouncements should be given a great deal of weight.

This is the stance of the issues raised herein challenging the doctrine of interspousal immunity. Having recently considered these policies in Varholla, and since nothing of import affecting that holding has subsequently taken place-other than the relatively short passage of time-we shall adhere to our previously pronounced position.

Additionally, we feel it necessary to point out that the fact that an insurance policy was in existence here is not a distinguishing factor in this case, as compared with Lyons or Varholla, supra. As previously noted, this court, in Varholla, discussed the interspousal immunity doctrine specifically in the context of an insured defendant spouse. In like manner, in Lyons, the court made specific reference to the involvement of insurance where, at page 245, 208 N.E.2d 533, it was stated: "There is the real danger of fraud or collusion between the spouses in such suits against each other, where insurance is involved."

Based on the foregoing, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

FRANK D. CELEBREZZE, C. J., and LOCHER, HOLMES and KRUPANSKY, JJ., concur.

WILLIAM B. BROWN, SWEENEY and CLIFFORD F. BROWN, JJ., dissent.

LOCHER, Justice, concurring.

In order to analyze the controversy surrounding the doctrine of interspousal immunity one need only consider one simple question: is the doctrine viable in today's society? I agree with the opinion of the court that the doctrine is viable. To hold otherwise would violate the integrity of the family. I also concur in the judgment and reasoning in that opinion, but I wish to expand on one point.

During the past quarter century, or so, this country has endured numerous threats to the integrity of her fundamental institutions. Critics of the doctrine of interspousal immunity have been at the vanguard of an unrelenting assault upon the family as an institution. The family is rebounding, however.

Critics of the doctrine focus almost exclusively on compensation for injuries. Their argument presumes that insurance will satisfy all needs. Yet, they never explain why suits between uninsured spouses are beneficial. Likewise, they ignore the capacity of the insurance industry to fill any gaps in coverage and prevent familial economic disasters through first-party health, life and income insurance.

These same critics contend that a failure to provide insurance compensation for injuries places a potentially unbearable economic strain on the family unit. This argument, however, presumes that spouses remain in economic unity, or at least mutuality. Under either interpretation, it would appear that society has indeed changed very little.

We should not allow ourselves to presume that every aspect of the so-called "social experiment" of the last two or three decades will endure into the future. ¹ As a people, Americans are getting back to the basics. The family is the basic social unit; and a husband and a wife are the beginnings of a family. As long as that is the case, we should find some means other than interspousal litigation to compensate husbands and wives for their injuries.

FRANK D. CELEBREZZE, C. J., concurs in the foregoing concurring opinion.

WILLIAM B. BROWN, Justice, dissenting.

The majority's decision in this case today should come as a great surprise and be of great concern to the people of Ohio, especially to the female contingent. In upholding the doctrine of interspousal immunity the majority seemingly gives credence to the theory upon which this doctrine was established, namely that a husband and wife are one. (See, generally, 1 Blackstone's Commentaries 442 (1765).) This unity principle is a legal fiction which has long been used to preclude a wife from enjoying the same full legal rights as are afforded her husband. This principle is based on the belief that a wife is the property of her husband, and is totally subordinate to and dependent upon him. In a spirit of equality, the General Assembly passed the Married Women's Act which to a large extent put the wife on an equal legal footing with her husband. The time is long overdue that this court as well recognize the legal individuality of a wife. By abrogating interspousal immunity, this court would emancipate all spouses from the vestiges of this archaic doctrine, and preserve to all every right which they had prior to marriage. I have read the majority opinion, and because I believe it represents an archaic viewpoint based on hollow and unenlightened reasoning, I must respectfully register my strong disapproval.

I previously stated the basis for my objections to the retention of interspousal immunity in my dissent in Varholla v. Varholla (1978), 56 Ohio St.2d 269, 271-275, 383 N.E.2d 888. Briefly, I found the following four major flaws in the majority's reasoning. First, the argument that abolishment of interspousal immunity is a legislative rather than a judicial task is not now nor has it ever been persuasive. The doctrine of interspousal immunity had its origins in common law, and as a judicially created doctrine, it may be judicially abolished. (Sears v. Cincinnati (1972), 31 Ohio St.2d 157, 161, 285 N.E.2d 732, overruling paragraph one of the syllabus in Hyde v. Lakewood (1965), 2 Ohio St.2d 155, 207 N.E.2d 547; Muskopf v. Corning Hospital Dist. (1961), 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Molitor v. Kaneland Community United District No. 302 (1959), 18 Ill.2d 11, 25, 163 N.E.2d 89.)

Next, the rationale underlying the claim that interspousal immunity prevents fraud and collusion is indeed strained. It is unlikely that "a wife's love for her husband is such that she is more likely to bring a false suit against him than a genuine one," (Prosser on Torts (4 Ed.) 863, Section 122) and a similar collusive argument was unanimously rejected by this court when it declared Ohio's guest statute unconstitutional in Primes v. Tyler (1975), 43 Ohio St.2d 195, 331 N.E.2d 723. In addition, there are numerous safeguards against fraudulent claims built into the judicial system. ²

Thirdly, the justification of interspousal immunity on the grounds that it promotes marital harmony is specious and unfounded. "To conclude that forbidding spouses to sue one another promotes domestic peace is a non sequitur. Marital harmony either exists or it does not. The harmonious marriage will not be hurt by allowing one spouse to benefit from the insurance coverage of the other; and the unhappy marriage will not be helped by denying legal rights to an already disgruntled spouse." Varholla, supra, 56 Ohio St.2d at page 273, 383 N.E.2d 888.

Finally, in my opinion, interspousal immunity is unconstitutional and should hence be...