Stepho v. Allstate Ins. Co.

• Decision Date: 28 April 1989
• Docket Number: No. A89A0140,A89A0140
• Citation: 382 S.E.2d 154,191 Ga.App. 494
• Parties: STEPHO v. ALLSTATE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 154

382 S.E.2d 154

191 Ga.App. 494

STEPHO v. ALLSTATE INSURANCE COMPANY.

No. A89A0140.

Court of Appeals of Georgia.

April 28, 1989.

Rehearing Denied May 9, 1989.

Certiorari Granted July 13, 1989.

Edgar L. Crossett III, Atlanta, for appellant.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, Fain, Major & Wiley, Thomas E. Brennan, Atlanta, for appellee.

BIRDSONG, Judge.

The facts giving rise to this litigation show that Stephen Stepho maintained a household in which were resident with him four sons and a daughter. Stephen Stepho owned a pick-up truck which was insured by Allstate Insurance Company. Named insured in that policy were Stephen Stepho and his adult son, Saad Stepho. On October 4, 1987, Stephen Stepho authorized, by telling, his adult son, Saad, to use the pick-up truck on the son's business. On October 4, 1987, Stephen Stepho's minor son, Nashwan Stepho, aged 14, was a passenger in Stephen's car while being operated by his adult son, Saad. Nashwan was one of the four natural sons resident in Stephen Stepho's home. While operating the vehicle, Saad was involved in an accident, resulting in personal injury to his brother, Nashwan. On pages 5-6 of the insurance policy issued to Stephen Stepho, naming Stephen and Saad as insureds, appears the following: "Exclusions--What is not covered. This coverage does not apply to liability for ... (6) bodily injury to any person related to a person insured by blood ... and residing in that person's household." Stephen Stepho on behalf of his minor son, Nashwan, brought this complaint for personal injuries suffered by Nashwan against his adult, emancipated son Saad, and against Allstate Insurance Company, apparently on the theory that the accident and injury were caused by an uninsured motorist. Allstate moved for summary judgment which was granted. It is that grant that forms the basis of this appeal. Held:

At the outset we can eliminate from our consideration in this case the application of laws dealing with uninsured motorist coverage. As pertinent, uninsured motor vehicle as defined by the policy in question is one which is not covered, coverage is legally denied by the insurer or does not meet minimal coverage amounts. Allstate in this case disputes coverage only if the contractual exclusionary clause is applicable. It is undisputed that the automobile in which Saad and Nashwan were traveling at the time of the accident was an insured vehicle. See Roderick v. Intl. Indem. Co., 183 Ga.App. 393, 394(3), 358 S.E.2d 923.

Appellants, father and son, present for our consideration the mixed question of the interaction of the doctrines of family immunity and contractual exclusions based upon familial relationships.

In the case of Arnold v. Arnold, 189 Ga.App. 101, 375 S.E.2d 225, affirmed 259 Ga. 150, 377 S.E.2d 856, this court considered the doctrine of family immunity. The reason underlying that doctrine generally is recognized to be that lawsuits between parent and child incite to disruption of family harmony and encourage fraud or collusion. In the Arnold case, supra, this court held that blood relationship was not the only or overriding condition. The case recognized that the family immunity doctrine was pertinent primarily between spouses and parents and unemancipated children. Litigation between parents and emancipated and/or adult children may not be so proscribed. See Reese v. Reese, 142 Ga.App. 243, 247, 236 S.E.2d 20; Davis v. Cox, 131 Ga.App. 611, 614, 206 S.E.2d 655; Wright v. Wright, 85 Ga.App. 721, 725(1), 70 S.E.2d 152. This court held specifically in the Arnold case, supra, 189 Ga.App. at p. 103, 375 S.E.2d 225: "Logic dictates that these legal principles would be equally applicable to suits brought by an unemancipated minor sibling against an adult sibling who is residing in the same parental household as the suing sibling."

It is apparent that if this court dealt only with the family immunity doctrine, Nashwan as an unemancipated sibling, would be entitled to sue in tort his emancipated brother Saad, even though they dwell together in the parental home. Arnold, supra at 104, 375 S.E.2d 225.

However, the grant of summary judgment in this case is not based on the general doctrine of family immunity, but specifically upon the...