Allstate Insurance v. Kyong Ho Kim

RAKER, Judge,

dissenting, joined by CATHELL, J.

I respectfully dissent. I would reverse the judgment of the Circuit Court for Montgomery County and hold that abrogat*301ing the doctrine of parent-child immunity in this case impairs the obligation of contracts under the United States Constitution because, under the circumstances presented herein, the impairment is substantial.

Article I, § 10 of the United States Constitution provides, in part, that “No State shall ... pass any ... Law impairing the Obligation of Contracts.” When Allstate and the insureds entered into an insurance contract, Maryland law prohibited an unemancipated minor from suing a parent for negligence. The insurance contract, and the premiums paid therefore, presumed that this immunity was in effect, and the premiums reflected the risk to Allstate based on that immunity. Negligence claims between parents and minor children were not a contemplated risk under the policy when it was issued. Allstate, therefore, would not have set aside reserves to cover such claims. The retroactive application of statutory abrogation of parent-child immunity will permit causes of action to be filed by children against their parents for negligence for the preceding twenty-one years-from the time the children reach age eighteen plus three years for the statute of limitations to run-as well as suits by parents against children for at least three years. Such exposure can hardly be termed unsubstantial. See Maryland Code (1974, 2002 RepLVol.) § 5-201 of the Courts and Judicial Proceedings Article. Moreover, allowing such suits would permit suits where the evidence may be scant, misplaced, or never collected because the insurance carrier relied on the defense of parent-child immunity. Allstate was justified in relying on the defense of immunity.

I would find that the impairment of this insurance contract is substantial and that retroactive abrogation of parent-child immunity is not reasonable and necessary to address an important social problem. I would hold that the statutory abrogation of parent-child immunity applies prospectively to those injuries caused by negligence that occurred on or after the statute’s effective date.1 Accordingly, I would reverse.

*302Judge CATHELL has authorized me to state that he joins in this dissenting opinion.

. Numerous states, when abrogating parent-child immunity in whole or part, apply the new rule prospectively. See, e.g., Fields v. Southern *302Farm Bureau Cos. Ins. Co., 350 Ark. 75, 87 S.W.3d 224, 231-32 (2002); Rigdon v. Rigdon, 465 S.W.2d 921, 923 (Ky.1971); Black v. Solmitz, 409 A.2d 634, 640 (Me.1979); Am. Family Ins. Co. v. Ryan, 330 N.W.2d 113, 115 (Minn.1983); Vickers v. Vickers, 109 N.H. 69, 242 A.2d 57, 58 (1968); Schwartz v. U.S. Rubber Corp., 112 N.J.Super. 595, 272 A.2d 310, 313-14 (Law Div.1971), aff'd, 118 N.J.Super. 128, 286 A.2d 724 (App.Div.1972); Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123, 124-25 (1978); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193, 199 (1963).