New Hampshire Ins. Co. v. Fahey

• Decision Date: 21 January 1982
• Citation: 430 N.E.2d 1193,385 Mass. 137
• Parties: NEW HAMPSHIRE INSURANCE COMPANY v. William D. FAHEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1193

430 N.E.2d 1193

385 Mass. 137

NEW HAMPSHIRE INSURANCE COMPANY v. William D. FAHEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 1981.

Decided Jan. 21, 1982.

Jean A. Nicolazzo, Newton, for plaintiff.

Frank T. Wojcik, Scituate, for defendant.

Before HENNESSEY, C. J., and WILKINS, ABRAMS and NOLAN, JJ.

WILKINS, Justice.

On April 13, 1978, at the age of sixteen, the defendant, while operating his father's motor vehicle without authority, negligently caused damage to that vehicle. The vehicle was insured by the plaintiff (insurer), and the insurer paid the father the amount of the damage, less a $200 deductible. Because the son was using the vehicle without authority, he was not an "insured" under his father's policy. The son had no liability insurance coverage applicable to the damage to the motor vehicle. The insurer brought this action against the son to recover the amount of the loss it paid to the defendant's father. The insurance policy contained a subrogation clause. We conclude that the insurer, as subrogee, is entitled to judgment against the defendant son for the amount of the loss it paid.

The action was commenced in the Third District Court of Eastern Middlesex and decided in favor of the defendant on a motion for summary judgment, accompanied by a stipulation of facts. On report to the Appellate Division of the District Courts, the defendant again prevailed. In its opinion, the Appellate Division concluded that it was bound by this court's decision in Sorensen v. Sorensen, 369 Mass. 350, 352-353, 339 N.E.2d 907 (1975), which abrogated parental immunity in motor vehicle accidents "to the extent of the parent's automobile liability insurance coverage."

The Appellate Division noted that the holding in the Sorensen case, that parental immunity was abrogated only to the extent of the insurance coverage, had been seriously questioned. In Lewis v. Lewis, 370 Mass. 619, 630 n.4, 351 N.E.2d 526 (1976), which concerned interspousal immunity, this court followed the logic of the reasoning in the Sorensen case, but not its holding, and declined to limit liability in interspousal tort actions to cases where insurance coverage was available. Subsequently, one Justice of this court expressly disavowed the availability of insurance as an essential element for recovery where a child brings a motor vehicle tort action against his or her parent. Pevoski v. Pevoski, 371 Mass. 358, 362-363, 358 N.E.2d 416 (1976) (Quirico, J., concurring). Although, as will be seen, we need not answer the question whether the availability of insurance is essential to recovery in a motor vehicle tort personal injury action between parent and child, these recent opinions suggest that the availability of insurance may indeed be irrelevant.

Here, we are concerned with a tort claim for damage to a motor vehicle and not one for personal injuries. The two pre-Sorensen opinions of this court establishing immunity in actions between parent and child were carefully limited to their facts and involved claims for negligently caused personal injury. Oliveria v. Oliveria, 305 Mass. 297, 300, 25 N.E.2d 766 (1940) (parent v. minor child). Luster v. Luster, 299 Mass. 480, 484, 13 N.E.2d 438 (1938) (minor child v. father). Intrafamily immunity has never been recognized in contract disputes or in disputes concerning property. Sorensen v. Sorensen, supra at 353, 339 N.E.2d 907. See 1 F. Harper & F. James, Torts § 8.11, at 647-648 (1956); W. Prosser, Torts § 122, at 865 (4th ed. 1971). Nor has there been intrafamily immunity for tort...