Farmers Insurance Group v. Reed

ON REHEARING

HUNTLEY, Justice.

On October 17, 1978, Thomas and Betty Reed gave their daughter, Cindy, permission to operate the family pickup. Darrell Hamilton, Jr., and his brother, Kevin, were passengers in the pickup. Shortly before 11:00 p.m., Cindy allowed Darrell to operate the pickup. Darrell was unable to negotiate a curve, and the vehicle rolled several times. As a result of injuries sustained in this accident, Kevin Hamilton was killed. At the time of the accident, Darrell was 16 years old, and Kevin was 10.

Following the accident, Darrell and Karen Hamilton, parents of Darrell, Jr., and Kevin, filed an action naming Thomas and Betty Reed, Cindy Reed as an individual, *850and their son Darrell Jr. as defendants, seeking medical and funeral expenses, and general damages occasioned by the loss of their son Kevin. The complaint alleged that Kevin’s death resulted from the negligent operation of the vehicle by Darrell, Jr. It was also alleged that Cindy Reed was negligent and careless in entrusting the % ton, 4-wheel drive pickup to Darrell, Jr.

We granted rehearing, primarily, because the Montana Supreme Court recently held that Montana’s newly enacted compulsory insurance law (which is identical to Idaho’s) invalidated an auto insurance policy’s household exclusion clause. Transamerica Insurance Co. v. Royle, 656 P.2d 820, 824 (Mont.1983). The doctrine of parent-child immunity could have been a defense for the insurance company to avoid the statutory requirement that “ ‘[e]very owner of a motor vehicle ... shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death ... suffered by any person ...’” Transamerica, 656 P.2d at 821 (quoting Mont. Code AM. § 61-6-301(1) (1980)) (emphasis deleted in part). The Montana court held, however, that parent-child immunity did not apply to bar automobile negligence actions between family members. Transamerica, 656 P.2d at 824.

The number of states allowing an intrafamily automobile negligence action now totals almost thirty. UnahBy and Through Unah v. Martin, 676 P.2d 1366, 1367-68 (Okla.1984). See, Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L.Rev. 489, 528-32 (1982) [hereinafter cited as Hollister]; Since November, 1983, every state which has considered intrafamily immunity in the context of negligently caused automobile accidents and household exclusion clauses has allowed intrafamily suits in this narrow area and invalidated the exclusion clause in the insurance contract. This list includes Oregon, Wyoming, Ohio, Oklahoma and Colorado. Meyer v. State Farm Mutual Automobile Insurance Co., 689 P.2d 585, 589-90 (Colo.1984); Dorsey v. State Farm Mutual Automobile Insurance Co., 9 Ohio St.3d 27, 457 N.E.2d 1169, 1171 (1984); Unah, 676 P.2d at 1370; Winn v. Gilroy 681 P.2d 776, 784-85 (Or.1984); Allstate Insurance Co. v. Wyoming Insurance Department, 672 P.2d 810, 813-14 (Wyo.1983). The statutory and public policy analysis expressed herein, and in those recent decisions, requires that this Court withdraw its prior opinion and, by this decision, reverse and remand for trial.

The history of how parent-child immunity arose in the common law of many states was extensively recounted in Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980), and need not be repeated here. Suffice it to say that the 1891 Mississippi decision, Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), which established the doctrine had no basis in English common law and relied solely on perceived public policy existing in the last century. Though quickly adopted by many other states, several exceptions allowing intrafamily lawsuits were also rapidly incorporated. The common law exceptions now total at least nine, including suits (a) against the estate of another family member, (b) where the parent is acting in his business capacity, (c) where a willful or malicious tort is involved, (d) where the suit is for a partnership accounting, (e) for depletion of assets, or over a (f) contract, (g) property dispute, or (h) by a child against his parents for injuries caused by negligent operation of a motor vehicle. The last exception (now recognized in many states) allows intrafamily suits in automobile negligence actions where liability insurance is present. This final exception is fast becoming standard even in the handful of states which still have blanket intrafamily immunity. See, Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135, 138-39 (1980); Pedigo v. Rowley, 101 Idaho at 202-03, 610 P.2d at 561-62; Transamerica, 656 P.2d at 823; Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66, 71-72 (1966); Hollister, at 509-11; Note, Pedigo v. Rowley: Parental Immunity in Idaho, 17 Idaho L.Rev. 301, 304-06 (1981).

Contrary to a widespread assumption, the general doctrine of intrafamily *851immunity has never been incorporated into Idaho common law. Intrafamily immunity was accepted and applied in Pedigo only in the explicitly narrow area of negligent parental supervision. Pedigo, 101 Idaho at 205, 610 P.2d at 564. However, we decline to herein broaden the scope of the doctrine in Idaho, and will not apply it to shield insurance companies in automobile negligence actions. We leave to another day the question of whether, under other circumstances, the intrafamily immunity doctrine should be expanded beyond the narrow limits established in Pedigo.

The relevant statute in the case at bar reads:

49-233. Required Motor Vehicle Insurance. — (a) Every owner of a motor vehicle ... shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by maintenance or use of a motor vehicle____

I.C. § 49-233 (1978) (emphasis added).

Farmers Insurance Company issued a policy to the Reeds, and its language tracks almost exactly the “any person” language in the statute. The company agreed:

“To pay all damages the insured becomes legally obligated to pay because of:
(A) bodily injury to any person ... arising out of the ownership maintenance or use ... of the described automobile or non-owned automobile.” (Emphasis added.)

However, unlike the statute, the insurance contract contains a clause which excludes coverage for household members. This is in spite of the clear legislative mandate ordering coverage extended for damage, injury or death suffered “by any person.” This type of exclusion in a liability insurance policy leaves completely unprotected those family members injured when another family or household member is at the wheel in a negligently caused automobile accident. Unless the defendant can show that something shields it from the statutory obligation “imposed by law” to pay damages caused by the policy holder to “any person,” the household exclusion clause is flatly and unmistakably in violation of Idaho’s compulsory insurance law.

Traditionally, insurance companies have been relieved from their obligation “imposed by law” to compensate by the intrafamily immunity doctrine. If there is intrafamily immunity in Idaho in the context of automobile accidents, then the household exclusion clauses are valid. If there is no intrafamily immunity shield, the household exclusion clauses are invalid statutorily and as against public policy.1

We will first explain why we decline to implement the immunity in this narrow area. Thereafter, we will examine whether the statute and public policy completely invalidate the exclusion clause.

Essentially, two factors support the intrafamily immunity: (1) preservation of family harmony and (2) prevention of collusion or fraud. Pedigo, 101 Idaho at 203, 610 P.2d at 562. It was feared that family harmony in certain areas would be disrupted because of the acrimony engendered when family members are pitted as adversaries against each other, and because a judgment might erode the family financial base. But today, the presence of mandatory automobile liability insurance completely undercuts that rationale in this area. Thus, we feel that allowing an action, and subsequent recovery to the extent of the coverage under the automobile liability insurance, will enhance rather than disrupt family harmony. The Oklahoma Supreme Court recently adopted this approach in responding to the family disharmony argument:

Disruption of domestic tranquility is much less likely where the minor child can be compensated for his losses under *852the parent’s liability coverage, which additionally eases any financial strain on the family resulting from the accident.

Unah, 676 P.2d at 1369. The court added:

While the existence of liability insurance — in this case compulsory coverage — does not create liability, its presence is significant, and cannot be ignored in the determination of whether our courts should continue to deprive unemancipated minors the right enjoyed by all other individuals.

Id. See also, Streenz v. Streenz. 106 Ariz. 86, 471 P.2d 282 (1970).

In overturning the Idaho automobile guest statute, our analysis was similar:

The explanation may have had validity in 1931 when the guest statute was first enacted, but today, the widespread incidence of liability insurance has destroyed the basis for the argument. Because of liability insurance, the statute [like the household exclusion clause herein] appears to result in the protection of insurance companies, not generous hosts, from lawsuits by negligently injured guests. The fact that insurance companies are the real beneficiary of the guest statute’s protection is made clear by the second justification of the guest statute of prevention of collusive lawsuits which is discussed below. The guest statute cannot be reasoned to promote hospitality by protecting hosts from lawsuits by guests.

Thompson v. Hagan, 96 Idaho 19, 22, 523 P.2d 1365, 1368 (1974).

The second major reason advanced by insurance companies in favor of applying the intrafamily immunity doctrine is prevention of fraud or collusion. This Court disposed of that argument in Thompson, and in Rogers v. Yellowstone Park Company, 97 Idaho 14, 539 P.2d 566 (1975), when we declined to let insurance companies hide behind the interspousal immunity shield:

Implicit in respondent’s argument is that the judicial system is inadequate to safeguard against collusion in tort actions between spouses. We reject this contention, for courts in this state presently weed out fraud and collusion in other cases not involving actions between spouses.
We find nothing unusual or peculiar in interspousal suits to frustrate the capability of the judicial system to avoid or anticipate such abuses.

Id. at 17, 539 P.2d at 569. See also, Mutual of Enumclaw Insurance Co. v. Wiscomb, 97 Wash.2d 203, 643 P.2d 441 (1982).

For the reasons expressed above, we decline to preclude intrafamily automobile negligence actions by judicially broadening the family immunity doctrine in Idaho. Therefore, the liability of the insurance companies to pay on their automobile liability insurance policies remains a “liability imposed by law.” I.C. § 49-233 (1978).

When this Court considered the validity of household exclusion clauses in Porter v. Farmers Insurance Company of Idaho, 102 Idaho 132, 627 P.2d 311 (1981), I.C. § 49-233 was not controlling because that statute was not in effect at the time of the 1975 accident involved in the case. However, with the Idaho compulsory insurance statute enacted into law and applying to this action, we must compare the household exclusion clause with the statutory language. As noted earlier in this opinion, the language in the statute is in direct conflict with the household exclusion clause now present in virtually every automobile insurance policy throughout the state. When considering the same issue, and an identically-worded statute, in last year’s Transamerica case, the Montana Supreme Court unanimously held:

The effect of the language of the Mandatory Insurance Law requires the liability policy to protect against bodily injury and property damage to “any person.” In so providing, the legislature has expressly outlawed the “household exclusion.”

Transamerica, 656 P.2d at 823.

We now reach the same conclusion. Therefore, we hold that the household exclusion clause is in violation of I.C. § 49-*853233 (1978). Consequently, the clause is unenforceable, and void as against public policy.

Were this Court to hold otherwise, the following inequities currently existing would continue:

(1) A family is making a trip on the freeway. If a negligently caused accident occurs with the father at the wheel, all family members in the household receive no compensation from the liability insurance policy, even if they are seriously injured or paralyzed for life. However, the friends and relatives of the family riding in the same car will be compensated for their injuries by the father’s policy. They fall outside the household exclusion clause.
(2) If a son just home from college (and therefore outside the exclusion clause) takes the wheel at a rest stop, everyone is immediately cloaked with coverage; but if the mother or sister trade with him when they stop for gas, the coverage is suddenly no longer in force.
(3) When the family friend riding with them slips behind the wheel, the liability coverage reappears.
(4) The neighbor next door could be driving behind the first family’s car with the children of the two families mingled between the cars, and both cars could be negligently involved in an automobile accident. In such a case, the insurance companies (with their household exclusion clauses) will compensate only those injured children or spouses who, by some quirk of fate, happened to climb into the car with an immediate family member not at the wheel.

These examples demonstrate the obvious: liability insurance protection for Idaho families fades in and out as family members move from car to car or switch from driver to driver.

The Washington Supreme Court unanimously voided household exclusion clauses, and in addressing the problem said:

This exclusion becomes particularly disturbing when viewed in light of the fact that this class of victims [the family] is the one most frequently exposed to the potential negligence of the named insured.
Typical family relations require family members to ride together on the way to work, church, school, social functions, or family outings.
Consequently, there is no practical method by which the class of persons excluded from protection by this provision may conform their activities so as to avoid exposure to the risk of riding with someone who, as to them, is uninsured.

Wiscomb, 643 P.2d at 444.

The New Jersey Supreme Court has also spoken to the inequity of stripping family members of coverage but allowing it for everyone else:

... [T]here is something wanting in a system of justice which permits strangers, friends, relatives and emancipated children to recover for injuries suffered as a result of their driver’s negligence but denies this right to the driver’s spouse and minor children who are also passengers in the same vehicle.

Immer v. Risko, 267 A.2d 481, 488 (N.J.1970) (emphasis added).

The supreme courts in the four states contiguous to Idaho which have considered the identical kind of intrafamily automobile negligence action have unanimously reached a result that disallowed the exclusion clause as it stood in the contract and lifted the intrafamily immunity to allow the suit. Transamerica, 656 P.2d at 823 (Montana); Estate of Neal v. Farmers Insurance Exchange, 93 Nev. 348, 566 P.2d 81, 83 (1977); Wiscomb, 643 P.2d at 466 (Washington); Allstate, 672 P.2d at 813-14 (Wyoming).

Two approaches in regard to the extent of recovery are followed in the majority of states which allow intrafamily actions in automobile negligence. Hollister, at 510-11. The first approach does not specifically limit recovery to the limits of the family’s insurance policy. Id. When those state supreme courts applying this rule al*854lowed suit or voided the exclusion clause, they either neglected, or decided not, to limit recovery. The practical consequence is that the judgment could occasionally be substantially beyond the limits of the family’s insurance policy.

The second approach, represented by the high court decisions of Oklahoma, Massachusetts and Delaware, limits any recovery to the extent of the automobile liability insurance policy. Williams v. Williams, 369 A.2d 669, 672 (Del.1976); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907, 909 (1975); Unah, 676 P.2d at 1370. We think this is the better approach, and therefore we adopt it. Therefore, we hold that intrafamily actions may be maintained in this narrow area, but only up to the limits of the automobile liability insurance policy.

In view of our holding above, we find it unnecessary to address the negligent entrustment of an automobile issue raised by the plaintiffs.

This decision shall be prospective in effect in a manner similar to the treatment utilized in Thompson v. Hagan, 96 Idaho 19, 25, 523 P.2d 1365, 1371 (1974) when the court had under consideration the constitutionality of the automobile guest statute. Accordingly the decision shall be applicable to this action, all actions pending as of December 31, 1984, and all actions arising subsequent to that date.

Reversed and remanded for further proceedings consistent herewith. Costs to appellants.

BISTLINE, J. and HARGRAVES, J. Pro Term, concur.2

. This is the precise reasoning used by the Montana Supreme Court in Transamerica and the Wyoming Supreme Court in Allstate in their recent rulings on the identical question, and it provides a helpful framework in which to present the analysis of the issues involved herein.