Mutual of Enumclaw Ins. Co. v. Wiscomb

Decision Date14 April 1980
Docket NumberNo. 7313-3-I,7313-3-I
Citation25 Wn.App. 841,611 P.2d 1304
PartiesMUTUAL OF ENUMCLAW INSURANCE COMPANY, a Washington Corporation, Respondent, v. Maura McGahan WISCOMB, Appellant, Kenneth Kelso Wiscomb, Defendant.
CourtWashington Court of Appeals

Faith Enyeart, Seattle, for appellant.

Peter Jay Visser, LeCocq, Simonarson, Visser & Johnson, Lynden, for respondent.

DURHAM-DIVELBISS, Judge.

Maura Wiscomb appeals from a declaratory judgment denying her coverage under an automobile liability insurance policy because of the family or household exclusion clause.

The facts are undisputed. Maura Wiscomb was seriously injured in a collision between a motorcycle she was riding and an automobile driven by her husband. Both vehicles were insured by Mutual of Enumclaw (Enumclaw), which provided both liability and uninsured motorist coverage.

Maura Wiscomb commenced a lawsuit against her husband, alleging that she suffered personal injuries as a result of his negligence. Her husband tendered the defense to Enumclaw, which refused to defend him, contending that it was relieved of its obligation under the family or household exclusion clause of the policy, which stated:

This policy does not apply . . . to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.

Maura Wiscomb appeals from a declaratory judgment relieving Enumclaw of any obligation to defend or pay damages.

This case presents a question the appellate courts have not yet directly addressed in this state: Is the family or household exclusion clause void because it violates public policy?

The family exclusion clause and the common law doctrine of intrafamily immunity share a common rationale: the avoidance of fraud and collusion in litigation. See generally 46 A.L.R.3d 1024. Thus, to answer the question presented above, we must first trace the development of the common law rule.

Historically, suits between husband and wife were strictly prohibited. One court explained:

At the common law there was a unity between husband and wife, and . . . for all practical purposes, the husband was the unit. The legal rights of the wife were merged in the husband, and were subject to the direction and control of the husband, but neither husband nor wife could sue the other.

Schultz v. Christopher, 65 Wash. 496, 498, 118 P. 629 (1911). However, in recent years, the doctrine of interspousal immunity has been eroded in several important respects. See, e. g., Mattinson v. Mattinson, 128 Wash. 328, 222 P. 620 (1924) (invasion of separate property rights); Johnson v. Ottomeier, 45 Wash.2d 419, 275 P.2d 723 (1954) (action against the personal representative of a deceased spouse); Goode v. Martinis, 58 Wash.2d 229, 361 P.2d 941 (1961) (intentional tort of rape between parties legally separated but awaiting divorce); Manion v. Pardee, 79 Wash.2d 1, 482 P.2d 767 (1971) (tort committed prior to marriage).

Finally, in 1972, the State Supreme Court in Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972) clearly and decisively abolished the doctrine of interspousal immunity. The court considered all of the historical reasons for the common law doctrine and expressly rejected each. These reasons included: (1) the supposed unity of husband and wife, (2) a policy of preserving the tranquility in the home, (3) the argument that the injured spouse has an adequate remedy through the criminal and divorce laws, (4) a concern that interspousal lawsuits would flood the courts with a burdensome number of trivial matrimonial disputes, (5) the desirability of discouraging collusion and fraud where one or both spouses carries liability insurance, (6) the absence of statutory sanctions for intrafamily torts, and (7) the contention that a tort-feasor spouse would benefit from his or her wrongdoing because of community property principles.

In addition to dismissing the traditional reasons upon which the common law doctrine was based, Freehe found the rule contrary to public policy as expressed in RCW 26.16.150, which provides that "(e)very married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property, and to sue and be sued, as if he or she were unmarried."

(T)he statute means what it says and . . . to the extent that a spouse has an individual interest in compensation for personal injuries, the statute allows him or her to bring suit against the tort-feasor spouse.

Freehe v. Freehe, supra at 190, 500 P.2d at 776. The court then went on to conclude at 192, 500 P.2d at 777:

We are cognizant of the longstanding nature of the commonlaw rule of interspousal tort immunity. But we find more impelling the fundamental precept that, absent express statutory provision, or compelling public policy, the law should not immunize tort-feasors or deny remedy to their victims. With this in mind, we have reviewed the stated reasons for the common-law rule, and have found all of them to be insufficient. Therefore, the rule of interspousal disability in personal injury cases is hereby abandoned.

This conclusion is consistent with our position in related areas, such as a minor's right to recover damages from injuries sustained by reason of a parent's negligence. In Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952), the court rejected the common law prohibition against intrafamily suits where gross negligence was claimed. In discussing the "fraud and collusion" justification, particularly where liability insurance was present, the court stated:

The courts may and should take cognizance of fraud and collusion when found to exist in a particular case. However, the fact that there may be greater opportunity for fraud or collusion in one class of cases than another does not warrant courts of law in closing the door to all cases of that class. Courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular cases.

Borst v. Borst, supra at 653, 251 P.2d at 155.

It is clear that the public policy of this state prohibits intrafamily immunity. We must then consider if an insurance company may privately contract to exclude coverage of claims between family members.

Enumclaw argues that United Pac. Ins. Co. v. McCarthy, 15 Wash.App. 70, 546 P.2d 1226 (1976) provides a basis for finding the family or household exclusion clause to be valid. While the court in McCarthy at 74, 546 P.2d at 1229 commented in passing that "(h)ousehold or family exclusionary clauses are customary in automobile policies and their propriety is judicially sanctioned," it did not discuss the clear public policy enunciations found in Freehe or Borst. In a narrow ruling, the McCarthy court held that exclusion of a family member under that particular clause would not render him eligible to proceed under uninsured motorist coverage. Enumclaw further relies on State Farm Mut. Auto. Ins. Co. v. Phillips, 2 Wash.App. 169, 467 P.2d 189, 46 A.L.R.3d 1013 (1970) to support its claim that the exclusion clause has been approved in this state. Phillips did not discuss the question addressed here, but rather was limited to a determination of whether the claimant there fell within the definition of "a member of the family."

Other jurisdictions that have considered the issue have reached conflicting results. See generally Annot., 46 A.L.R.3d 1024 (1972). The family or household exclusion clause has been upheld because of the state's policy supporting interspousal immunity, see, e. g., State Farm Mut. Auto. Ins. Co. v. Leary, 168 Mont. 482, 544 P.2d 444 (Mont.1975), or because the clause did not prevent suit between spouses but only prevented recovery from the insurance company. See, e. g., State Farm Fire & Cas. Co. v. Peckham, 74 Mich.App. 551, 254 N.W.2d 575 (1977). We find these cases unpersuasive. Other courts have held that the family or household exclusion clause is contrary to public policy as expressed in the state's financial responsibility laws. See, e. g., State Farm Mut. Auto. Ins. Co. v. Sivey, 404 Mich. 51, 272 N.W.2d 555 (1978); Estate of Neal v. Farmers Ins. Exch., 566 P.2d 81 (Nev.1977); Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870 (N.D.1975); Stevens v. State Farm Mut. Auto. Ins. Co., 21 Ariz.App. 392, 519 P.2d 1157 (1974).

Although many of the cases cited earlier in this opinion discuss the presence of insurance contracts, they do not specifically answer the question before us. See, e. g., Freehe v. Freehe, supra and Borst v. Borst, supra. We must, therefore, turn to a general consideration of private insurance contracts vis-a-vis public policy.

Traditionally, insurance contracts have been considered to be private contracts between the parties. Sears, Roebuck & Co. v. Hartford Accident and Indem. Co., 50 Wash.2d 443, 313 P.2d 347 (1957); Vandivort Constr. Co. v. Seattle Tennis Club, 11 Wash.App. 303, 522 P.2d 198 (1974). As private contractor, the insurer was permitted to limit its liability unless inconsistent with public policy or statute. Trinity Universal Ins. Co. v. Willrich...

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  • Article Title: the Doctrine of Interspousal Immunity in Utah: Does it Still Exist?
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