Karam v. Allstate Ins. Co.

• Decision Date: 23 June 1982
• Docket Number: No. 81-958,81-958
• Citation: 436 N.E.2d 1014,70 Ohio St.2d 227
• Parties: , 24 O.O.3d 327 KARAM et al., Appellants, v. ALLSTATE INSURANCE COMPANY et al., Appellees.
• Court: Ohio Supreme Court

Page 227

70 Ohio St.2d 227

436 N.E.2d 1014, 24 O.O.3d 327

KARAM et al., Appellants, v. ALLSTATE INSURANCE COMPANY et al., Appellees.

No. 81-958.

Supreme Court of Ohio.

June 23, 1982.

Syllabus by the Court

An unemancipated child may not recover in a tort action instituted against the administrator of the estate of the child's mother and her liability insurance company for personal injuries received by the child in an automobile accident alleged to be proximately caused by the negligent operation of an automobile, and which results in the mother's death. The immunity arising from the parent-child relationship shall be recognized even though the alleged negligent parent has deceased. (Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d 375, followed.)

On August 14, 1978, Rose Karam was operating a motor vehicle which was involved in an accident on Dublin Road, Franklin County, Ohio, with another motor vehicle. Rose Karam and other passengers in her vehicle were killed in the accident. Injured in the accident was Rashid Karam, Rola Karam, and Rita Karam, who were minor children of Rose Karam and her husband Maurice Karam and resided in their parents' home at the time of the accident.

On January 15, 1980, Maurice Karam, as father and next of kin of the three children, instituted suit in the Court of Common Pleas of Franklin County against himself as administrator of the estate of Rose Karam, the Allstate Insurance Company and the Buckeye Insurance Company seeking to recover damages on behalf of the children. The complaint averred the two insurance companies had issued contracts of liability insurance covering Rose Karam and that the proceeds of the insurance policies were not assets of the decedent's estate. Maurice Karam joined individually in the complaint seeking recovery for hospital and medical expenses and for loss of society, companionship, and future services of his children.

On May 22, 1980, the court sustained a Civ.R. 12(B)(6) motion to dismiss filed by the insurance companies. On November 26, 1980, the court entered a summary judgment in favor of Maurice Karam as administrator of Rose Karam's estate. ¹ Upon appeal to the Court of Appeals, the judgment was affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Wolske & Blue and Walter J. Wolske, Jr., Columbus, for appellants.

Crabbe, Brown, Jones, Potts & Schmidt, Theodore D. Sawyer and David J. Richards, Columbus, for appellees.

STEPHENSON, Justice.

This appeal requires us to determine the scope of the Ohio rule of parental immunity which bars the recovery in a tort action by a child against its parent based upon personal injuries proximately caused by negligent conduct of the parent. Appellants, in their first proposition of law, do not argue for a total abrogation of the rule, but rather urge this court to hold the rule inapplicable where, as here, the parent alleged to be negligent is deceased and liability insurance proceeds alone would be the source for the payment of any judgment granted in favor of the child.

The rule that a parent is immune from liability in a tort action instituted against the parent by a child is universally recognized as one judicially created in Hewlett v. George (1891), 68 Miss. 703, 9 So. 885, and, unlike interspousal immunity, has no common law origin. The rationale in Hewlett for the rule is that such an action disturbs the domestic peace and harmony of the family and is contrary to public policy.

After its pronouncement in Hewlett, the rule, subject to certain exceptions, was adopted in practically all jurisdictions and represented the overwhelming weight of authority. ² A principal reason articulated in support of the rule, in addition to the family tranquility reason, was the danger of fraud and collusion by reason of the widespread existence of liability insurance. Sorensen v. Sorensen (1975), 369 Mass. 350, 339 N.E.2d 907; Guess v. Gulf Ins. Co. (1981), 96 N.M. 27, 627 P.2d 869; Streenz v. Streenz (1970), 106 Ariz. 86, 471 P.2d 282.

Additional reasons relied upon to support the rule were (1) depletion of the family exchequer, (2) the possibility of inheritance by the parent of the amount recovered in damages by the child, and (3) interference with parental care, discipline, and control. Trevarton v. Trevarton (1963), 151 Colo. 418, 378 P.2d 640; Borst v. Borst (1952), 41 Wash.2d 642, 251 P.2d 149; 43 Harvard L.Rev. 1030, 1056.

In a growing number of jurisdictions the parental immunity rule has been in many recent cases reconsidered and abrogated, mostly in part, ³ upon the basis that the traditional reasons relied upon to support the rule are no longer persuasive, particularly the domestic tranquility and collusion rationale. ⁴ See Annotation 41 A.L.R.3d 904, Liability of Parent for Injury to Unemancipated Child Caused by Parent's Negligence.

The issue of parental immunity was first before this court in Signs v. Signs (1952), 156 Ohio St. 566, 103 N.E.2d 743. In Signs, a seven- -year-old child had instituted suit to recover for injuries suffered from the alleged negligence of a partnership, of which her father was a partner, in the maintenance and operation of a gasoline pump. After a review of the historical development of the rule, the court held that "(a) parent in his business or vocational capacity is not immune from a personal tort action by his unemancipated minor child." Unarticulated, but implicit in such syllabus language, is that the rule of parental immunity was in force in Ohio.

In Teramano v. Teramano (1966), 6 Ohio St.2d 117, 216 N.E.2d 375, the issue of parental immunity was again before this court. In Teramano, the plaintiff was an unemancipated child who was struck in the driveway of his home by an automobile operated by his father who it was alleged was operating his automobile at a high speed and under the influence of intoxicants. The court, in denying the right of recovery, and after concluding that the father's conduct was not intentional or malicious, held the following:

"1. A parent is immune from suit by his unemancipated minor child for tort unless facts of the case are sufficient to show abandonment of the parental relationship. (Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743, explained.)

"2. A malicious intent to injure existing in the conduct of a parent toward his minor unemancipated child evidences abandonment of the parental relationship. Malicious intent to injure in such cases may be actual or implied.

"3. Where the petition filed by an unemancipated minor against his parent, seeking damages for personal injuries, alleges that the injuries were willfully inflicted but it becomes apparent upon the opening statement of plaintiff's counsel that the acts complained of were not done with a malicious intention to injure or were not such acts as would justify a presumption of malicious intent to injure, a verdict should be directed for defendant."

The Court of Appeals below in the case sub judice affirmed, essentially, upon the basis that there being no abandonment in the sense of volitional action by Rose Karam in the termination of her relationship with the appellants and no evidence of malicious intent otherwise existing, the holding in Teramano was controlling.

Appellants essentially argue that the focus should not be on a wooden application of the concept of abandonment, as that term is defined as embracing intentional action, but rather upon the fact that when the parent is deceased, liability insurance coverage exists and all remaining family members join in the suit; thus, the basic rationale of the rule respecting disturbance of family tranquility does not exist and the parental immunity rule should not apply. Assuming, arguendo, there is merit in such argument, there still exists an important public policy aspect which requires consideration.

In adjudicating the issue of parental immunity, courts have frequently drawn an analogy to the doctrine of interspousal immunity in support of the rule. Although the analogy has been criticized in that the origins of the two doctrines are historically distinct, nevertheless both involve inter-family litigation and rest in part upon the same ground, i.e., that of public policy in the prevention of fraud and collusion. ⁵

Understandably, therefore, courts in jurisdictions having in effect a doctrine of interspousal immunity have relied upon the existence of interspousal immunity to support the parental immunity doctrine. Downs v. Poulin (Me.1966), 216 A.2d 29; Luster v. Luster (1938), 299 Mass. 480, 13 N.E.2d 438. By the same token, when a jurisdiction has abrogated the doctrine of interspousal immunity, courts have utilized such rejection in abrogating parental immunity upon the basis that a principal supporting underpinning, i.e., fraud and collusion, having been rejected in interspousal litigation, it was equally without merit in parental immunity adjudication. Hebel v. Hebel (Alaska 1967), 435 P.2d 8; Gibson v. Gibson (1971), 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648; Black v. Solmitz (Me.1979), 409 A.2d 634; Turner v. Turner (Iowa 1981), 304 N.W.2d 786; France v. A. P. A. Transport Corp. (1970), 56 N.J. 500, 267 A.2d 490; Plumley v. Klein (1972), 388 Mich. 1, 199 N.W.2d 169; Guess v. Gulf Ins. Co., supra, 96 N.M. 27, 627 P.2d 869.

As noted in Varholla v. Varholla (1978), 56 Ohio St.2d 269, 270, 383 N.E.2d 888, this court in Lyons v. Lyons (1965), 2 Ohio St.2d 243, 208 N.E.2d 533, approved interspousal immunity with one of the three principal reasons being articulated as, "the immunity prevents fraud and collusion at the expense of tactically disadvantaged insurance companies." In Bonkowsky v. Bonkowsky (1982), 69 Ohio St.2d 152, 431 N.E.2d 998, this court reaffirmed its adherence to the doctrine of interspousal immunity.

We view Bonkowsky as foreshadowing our holding herein inasmuch as we cannot logically accept as meritorious the collusion...