Walker v. State Farm Mutual Automobile Insurance Company

• Citation: 765 So.2d 1224
• Decision Date: 25 August 2000
• Docket Number: No. 33,781-CA.,33,781-CA.
• Parties: William Dale WALKER, et al., Plaintiffs-appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-appellees.
• Court: Court of Appeal of Louisiana (US)

765 So.2d 1224

William Dale WALKER, et al., Plaintiffs-appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-appellees.

No. 33,781-CA.

Court of Appeal of Louisiana, Second Circuit.

August 25, 2000.

Tyler & Johnson by Tommy J. Johnson, Shreveport, Counsel for Appellants.

Deal & Cook by Philip T. Deal, Monroe, Counsel for Appellees, Susan Walker and State Farm Mutual Automobile Insurance Company.

Corkern & Crews by Ronald E. Corkern, Jr., Natchitochches, Counsel for Appellee, State Farm Fire & Casualty Company.

Before STEWART, CARAWAY and PEATROSS, JJ.

CARAWAY, J.

Following an automobile accident in which their father was killed in a vehicle driven by their mother, the minor children instituted this wrongful death and survival action against the family's insurers and their mother. The suit was filed by the children's uncle, who was appointed provisional tutor, and was met with an exception of no right of action on behalf of the mother. Recognizing the application of Louisiana's parent-child immunity statute, the trial court granted the exception and dismissed the suit by the children against their mother. We affirm.

Facts and Procedural History

On July 17, 1998, a tragic automobile accident occurred when the family van being driven by Susan Walker ("Susan") collided with the rear of a tractor-trailer rig on Interstate 20 in Warren County, Mississippi. Susan's husband, Frank M. Walker, Jr., and her daughter, Nina Walker, were killed in the accident. Susan and her son, Slade Walker ("Slade"), were also injured in the crash.

This suit was filed by William Dale Walker, as the court appointed tutor for Susan's minor children, Carmen Elizabeth Walker ("Carmen") and Slade, and by Frank's adult children from a prior marriage, Meredith Ashley Walker and Brooke Katherine Walker. Named as defendants were Susan Walker and her two liability insurers, State Farm Fire and Casualty Company of Monroe and State Farm Mutual Automobile Insurance Company of Bloomington, Illinois. Carmen and Slade assert a wrongful death and survival action against Susan for the death of their father. Additionally, Slade asserts a tort claim against his mother for his personal injuries. These claims, which are the subject of this appeal,¹ were dismissed by the trial court on Susan's exception of no right of action pursuant to Louisiana's procedural bar prohibiting actions by unemancipated minor children against their parents, La. R.S. 9:571 (hereinafter the "Statute"). The minor children now challenge the application of the Statute to the facts of this case, and alternatively, they challenge the constitutionality of the Statute as a bar to their claims.

Exception of No Right of Action

The Louisiana jurisprudence has considered the application of immunity statutes through the exception of no right of action. See, Myhre v. Erler, 575 So.2d 519 (La.App. 5th Cir.1991) ("It is well settled that the interspousal immunity created by this statute does not destroy any cause of action which one spouse may have against the other. The effect of this statute is to bar the right of action which one spouse has against the other for any such cause of action."); Gremillion v. Caffey, 71 So.2d 670 (La.App. 1st Cir.1954); Smith v. Southern Farm Bureau Cas. Ins. Co., 174 So.2d 122, 247 La. 695 (1965).

The exception of no right of action challenges whether the plaintiff has an actual interest in bringing the action. La. C.C.P. art. 927(A)(5); Grocery Supply Co. v. Winterton Food Stores, 31,114 (La. App.2d Cir.12/9/98), 722 So.2d 94, 98. Whether a plaintiff has a right of action depends on whether the plaintiff belongs to a particular class of persons to whom the law grants a remedy for the alleged grievance, or whether the plaintiff has an interest in judicially enforcing the right asserted.

Unlike the trial of an exception of no cause of action, evidence is admissible on the trial of an exception of no right of action to "support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition." La. C.C.P. art. 931; Morton v. Washington Nat. Ins. Co., 420 So.2d 1019 (La.App. 145th Cir.1982); North Cent. Utilities, Inc. v. East Columbia Water Dist., 449 So.2d 1186 (La.App. 2d Cir.1984).

Application of Parent—Child Immunity

The Statute (La. R.S. 9:571) provides as follows:

§ 571. General rule that child may not sue parent

The child who is not emancipated cannot sue:

(1) Either parent during the continuance of their marriage, when the parents are not judicially separated; or

(2) The parent who is entitled to his custody and control, when the marriage of the parents is dissolved, or the parents are judicially separated.

Our supreme court has ruled that the Statute operates only as a procedural bar to an action by a child against his parent and does not destroy the cause of action. Walker v. Milton, 268 So.2d 654, 263 La. 555 (1972).

The parent-child immunity Statute was enacted in 1960 as a revision of the similar immunity provided by former Article 104 of the Code of Practice of 1870. However, even before Article 104 of the Code of Practice was adopted, suits by children against their parents were deplored and discouraged, though not forbidden. See Ruiz v. Clancy, 162 So. 734, 182 La. 935 (1935). The reason why such suits were deemed objectionable was explained in the early decision of Bird v. Black, 5 La. Ann. 189, 196 (La.1850):

"The decisions of this court have not encouraged suits of children against their parents, unless to redress clear and palpable injustice. There are services which parents render to their children, and which it is presumed they performed until the contrary appears, which money cannot buy; and filial duty should restrain the child from exposing the faults of its parents, or worrying them with litigation, unless compelled by extreme necessity."

Furthermore, the court in Ruiz, supra, quoted from a New Hampshire ruling which summarized the purpose of the immunity, as follows:

"Such immunity as the parent may have from suit by the minor child for personal tort arises from a disability to sue, and not from lack of violated duty. This disability is not absolute. It is imposed for the protection of family control and harmony., and exists only where a suit or the prospect of a suit might disturb the family relations. Stated from the viewpoint of the parent, it is a privilege, but only a qualified one."

Two filial duties significant for an understanding of the immunity provided by the Statute are set forth in the Civil Code, as follows:

Art. 218. Parental custody and correction.

An unemancipated minor can not quit the parental house without the permission of his father and mother, who have the right to correct him, provided it be done in a reasonable manner.

Art. 227. Parental support and education of children.

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.

The filial obligation of the parent under Article 227 to monetarily maintain and support the child adequately compensates for the procedural bar of the pursuit of tort damages during the child's minority.

The record indicates that Susan testified and evidence was received at the hearing on Susan's exception of no right of action. The appointment of William Dale Walker as provisional tutor was proven by the introduction of the tutor's letters without any further documentation from the tutorship proceeding. Although the transcript of the testimony is not in the record, the trial court ruled that Susan is "entitled to custody and control of her two minor children." Additionally, statements in the briefs of both parties indicate that the children remain in the actual custody of Susan, as would be expected under the provisions for natural tutorship. La. C.C. arts. 250² and 301.³

Under these circumstances and in view of Susan's obligations as parent and natural tutor, the appointment of William Dale Walker as the provisional tutor is governed by La. C.C.P. art. 4069(A), which provides as follows:

In exceptional cases and for good cause shown, the court may appoint a bank or another person as administrator or tutor of the property of the minor. This appointment may be made upon the court's own motion or upon the motion of the tutor or other person entitled to the tutorship if no tutor has been previously appointed, or upon motion of any interested person after a contradictory hearing with the tutor, administrator, or person entitled to the tutorship or the administration.

As noted in the comments to Article 4069, the appointment of a separate tutor of the minor's property "does not, however, take the care and custody of the minor from the person entitled to it by law." 1998 Revision Comments (a), La. C.C.P. art. 4069. Revision Comment (c) to the article further states:

All articles in this Title dealing with the care of the minor's person apply to the custodian of the person; whereas those dealing with the administration of property apply to the tutor of the property.

Therefore, while William Dale Walker acts as a prudent administrator and must "enforce all obligations of the minor" in accordance with La. C.C.P. art. 4262, Susan "shall have custody of and shall care for the person of the minor" as provided in La. C.C.P. 4261 and in accordance with the filial duties of La. C.C. arts. 218 and 227, supra.

From the above review of the Statute, the substantive and procedural law regarding tutorship, and facts of this case, we conclude that, within the language of the Statute, Susan is "the parent who is entitled to ... custody and control" of Carmen and Slade and thus immune from suit during the children's minority. This ruling is in keeping with the long recognized purpose of the Statute to promote family harmony and to maintain the family control.

Finally, since any suit by an unemancipated minor requires a legal...