Claims Adjusting and the Laws of Immunity
July 2009
Ah, summertime! Time to go outside and do
all those fun things with the family. Trips to the beach for fun in the sun,
playing Frisbee at the park with Fido, cruising around the lake in the
family boat looking for that perfect fishing spot, or, when the fishing is
no good, tubing across the boat wake and bouncing like crazy!
by Elise Farnham
Illumine Consulting
Summer is the time for families to gather together to enjoy each other
and create happy memories they will take with them their entire lives. Those
are the joys of summer.
Unfortunately, insureds don't often consider how
things could go wrong. A three-car pileup on the interstate on the way to
the beach caused by a "texting" Dad, and Junior in the backseat is thrown
from the car. Fido taking exception to the 2-year-old grabbing his Frisbee
and bites the child. And boats? They just reek of danger. Hitting a snag
that tips the boat, knocking little sister into the lake, oh, and she
doesn't have her lifejacket on, and she can't swim. Or, while watching the
water skier, you hit another boat, throwing Auntie into the upright seat,
bruising her. Or, throwing out your fishing line, you accidentally catch
your wife in the eye with the hook. Need I go on?
What happens when family
members accidentally injure each other? But for insurance, there would be no practical reason for a family member to sue
another. After all, such an action would disrupt the family harmony and for
no real purpose. The family assets are already being used to pay for related
expenses. A judgment may serve to realign family assets, but with the
payment of court costs and attorney fees, it would be prohibitive to bring a
tort action.
With insurance, there are certainly "no-fault" coverages that
provide payment for expenses related to treatment of the injuries
sustained—medical payments coverage, personal injury protection, and so on.
But what if the injured family member believes the actions of the tortfeasor
constitute negligence and incurs damages that would not be covered under the
available no-fault coverage?
Family Immunity Statutes
Family
immunity statutes were developed in common law to restrict the rights of a
family member in bringing a tort action against another family member. For
the most part, these immunity laws were developed to maintain the peace and
harmony of the family.
Husband and Wife
With respect to a husband
and wife, the traditional basis in common law required the wife to sue in
the name of her husband; she had no rights of her own. The advent of the
Married Women's Property Rights Acts1 emancipated
wives who could now bring suit and be sued in their own names. Most courts
held that these acts did not do away with interspousal immunity, and in
fact, served to impose the same disability on the husband as on the wife
insofar as immunity from tort action is concerned. There were a few courts,
however, who took the opposite position reasoning that if the legislature
had wanted the interspousal immunity to stand, they could have done so by
stating this in the Married Women's Acts.
As society has advanced, the
concept of interspousal immunity has come under scrutiny. Most legal
scholars believe that a spouse who injures the other should not be immune
from liability in tort. They acknowledge that the tortious act may
eventually lead to divorce and a distribution of present and future assets;
however, the divorce action is not meant to provide compensation for past
injury or damages.
The courts seem to agree, at least in the case of interspousal immunity
that a:
… reason given for the disability is the notion that to allow a
married person to sue his or her spouse for tort damages would be to destroy
the peace and tranquility of the home. On reflection, we are convinced that
this is a conclusion without basis. If a state of peace and tranquility
exists between the spouses, then the situation is such that no action will
be commenced or that the souses—who are, after all, the best guardians of
their own peace and tranquility—will allow the action to continue only so
long as their personal harmony is not jeopardized. If peace or tranquility
is nonexistent or tenuous to begin with, then the law's imposition of a
technical disability seems more likely to be a bone of contention than a
harmonizing factor.
Freehe v. Freehe,
500 P.2d 771 (Wash. 1972).
The court spoke again when
considering situations involving intentional torts. In the case of
Bogen v.
Bogen, 12 S.E. 649 (1941), the husband was ruled not exempt
from responsibility for intentionally harming his wife.
The states have
also eroded interspousal immunity for suits brought after the marriage has
been terminated and for suits against persons vicariously liable for the
tort committed by the spouse. For instance, it is not uncommon for an
individual to be injured by a negligent spouse who is working in the course
and scope of employment. The injured spouse would be allowed to bring an
action against the employer who is vicariously liable for the acts of its
employee.
Where the parties are permanently separated or divorced, there
would be no peace or harmony to protect. Many separated or divorced spouses
maintain a single residence, either because of lack of finances to purchase
or rent other space, due to disagreement over who should be awarded the
residence, or for the children. Questions of negligence arise and must be
investigated when one spouse is injured due to the negligence of the
estranged spouse. The same reasoning applies in the case in which the
spouse is injured by the negligent spouse who dies as a result of the event.
Death ends the family relationship and, once again, there is no peace or
harmony to protect. The injured spouse has a right of action against the
estate of the negligent deceased spouse.
Parent and Child
The
family immunity issues also extend to parent and child relationships. The
basis in common law precluded an action by the child against the parent to
preserve harmony in the family and parental authority. There are
exceptions—for the vicarious liability of a third party due to the
negligence of either a parent or child, as well as exceptions in cases in
which the negligent party (parent or child) is deceased.
In states
recognizing parent and child immunity consider the child's age of majority
or emancipation when determining if an action is barred. Generally, the
child's age as of the date of accident is the determining factor. Once the
child reaches the age of majority or is emancipated, there is no further
reason to be concerned for the harmony of the family unit and therefore no
immunity for the negligent parent or child.
The Insurance Effect
With the advent of insurance, the environment has dramatically changed and
the courts have begun to take insurance availability into consideration. In
the case of Gelbman v. Gelbman, 245 N.E.2d 192 (N.Y. App.
1969), the court felt that the existence of compulsory insurance effectively
waived immunity of an unemancipated child to his mother. Other courts have
found similarly, reasoning that the existence of insurance and the payment
of an insurance settlement may, in fact, enhance harmony in the family by
giving the family the means to pay the costs it has incurred on behalf of
the injured family member.
Today, most states do not recognize immunity
for unintentional acts within the first degree of consanguinity. It is the
responsibility of the claim representative to fully investigate for
negligence as is the case for any third-party action.
So, yes, the family
at play can mean extra work for the adjuster!
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author's employer or IRMI. Expert Commentary articles
and other IRMI Online content do not purport to provide legal, accounting, or other
professional advice or opinion. If such advice is needed, consult with your attorney,
accountant, or other qualified adviser.