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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!


1A series of U.S. statutes, beginning in 1839, that expanded the rights of married women to act independently from their husbands in legal matters.


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.

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