dissenting.
The traditional justification for inter-spousal tort immunity is that such immunity tends to promote domestic harmony and affords protection against friendly lawsuits. Perhaps universal liability insurance has effectively eliminated promoting domestic harmony as a reason for interspousal immunity. Now that one spouse can sue the other and thus greatly augment the family coffers, domestic harmony may, in fact, be greatly enhanced. A husband may love his wife all the more if she can make them all wealthy.
I do not suppose that a husband would purposely injure his wife so that she could file suit against him. However, once a fortuitous injury occurs, the husband will not defend himself in a lawsuit his wife brings for her personal injuries. In fact, not only will he admit liability, but he will exaggerate her injuries in order to help increase her recovery. In doing this he will be acting in his own interest. The more money the wife brings into the family, the less the husband will have to work.
With the abrogation of interspousal immunity, interfamily immunity must also fall. The same rationale for abrogating interspousal immunity applies equally to interfamily immunity. By the authority of this case mama can now sue dad and receive damages under the automobile liability policy; a child who slips on the front porch can sue mom and dad and collect damages under the family home owners policy. Families may find it more profitable to sue each other than work. Mom, dad and the kids can take all this insurance money, quit work, move to Hawaii and live happily ever after.
In abrogating interspousal immunity this court and other courts talk about lofty constitutional principles, women’s rights legislation and principles of property law. These courts pretend that insurance is not a factor in their determination. It is a fiction and insurance is the only real factor. In the real world everyone knows that were it not for liability insurance no one would have any concern about abrogating interspousal immunity.
A woman, dancing with her husband (in Chicago or Cheyenne), who injures her back when negligently thrown to the floor would give no thought to suing her husband. The reason being that there is no liability insurance for injuring a wife while dancing. On the other hand, if this same man negligently injures his wife in an automobile accident, as surely as night follows day, he will be sued by her for personal injuries. The reason: there is liability insurance to cover this type of injury. Still courts say with “a straight face” that insurance is not a consideration.
We live in a dream world if we think a suit between husband and wife, for personal injuries, will bear any resemblance to an adversarial proceeding. Abrogation of in-terspousal immunity encourages fraud, and collusion, and facilitates overly friendly lawsuits between husband and wife.
The courts do more than their share to fuel the growth of the rapidly expanding industry of litigation. By creating a new cause of action, this court is making inter-family litigation a cottage industry. This affords employment for more lawyers. If we have more lawyers, we need more judges. Creation of all these new jobs helps redistribute the wealth. Fueling the growth industry of litigation would be an estimable goal if an inexhaustible reservoir of manna existed.
I would affirm the district court.