Hatzinicolas v. Protopapas

McAULIFFE, Judge,

concurring.

I agree that a child’s legitimate claim against someone who is legally responsible for her injuries should not be snuffed out in its entirety simply because her parent is in the position of one who ordinarily would be required to contribute to the payment of the claim. I do not agree that the solution is to strip away the parent’s immunity.

This child’s claim would ordinarily be against the partnership and its partners. Here, the Plaintiff knew she could *361not maintain a direct action against her father, so he was not named as a defendant, notwithstanding his liability as a general partner. Additionally, the Plaintiff apparently recognized that she could not sue the partnership because a judgment against the partnership would directly impact upon her father. Accordingly, she did what she should have done — she sued the remaining partner, who, if the Plaintiff’s claim is meritorious, has a legal responsibility to respond to her in damages, and who enjoys no immunity from suits by her. The problem arises with respect to contribution. Under ordinary circumstances a partner who must pay a third party because of a partnership liability is entitled to recover contribution from the remaining general partners in proportion to their respective interests. Under the facts of this case, therefore, the father would end up paying one-half of any judgment his daughter obtained against his partner. The impact, then, is precisely the same as if the daughter had named her father as a defendant in the first instance. To allow this result is to defeat the policy of parent-child immunity, and the courts have been quick to recognize that fact. A simple principle has been employed to protect the immunity — the law will not permit to be done indirectly that which may not be done directly. The parent-child immunity should not be defeated by the legal nicety of employing a two-step process to reach the parent’s pocket. Suing the partner, when the obligation, if any, is that of the partnership, affords sure and certain access to the parent’s assets. This access is indirect in the sense that the parent is not sued by the child. The impact, however, is immediately seen and legally certain.

What, then, is to be done to give effect to the principle that one ought not be permitted to do indirectly what he cannot do directly? Two potential solutions are immediately apparent: 1) the claim of the child may be barred entirely; or 2) the child’s claim may be prosecuted, but the parties found responsible for the child’s injury may not require contribution, to which they otherwise would be entitled, from the parent. Both solutions achieve the goal *362of preserving the policy of parent-child immunity. The first solution, however, penalizes the child and allows those who ought to pay to entirely escape liability. The second solution allows recovery by a child who should be compensated, and fulfills the socially desirable goal of requiring those who are responsible for a wrong to respond in damages.

The difficulty with the second solution is that it necessarily deprives the defendants who are found liable to the infant of a right they would otherwise have — the right to recover a part of their payment from a partner. This is not, however, a difficulty without a remedy. The answer is to provide for a reduction in the child’s recovery by the amount which those answerable to the infant could have recovered from the parent by way of contribution had the immunity not existed.1 Employing this procedure the child neither sues, nor recovers from, the parent. The child is permitted to recover from those who are responsible and the responsible parties pay no more than is fair and just.

This method of striking a fair balance between all involved parties is hardly unique. The procedure is analogous to that employed where a joint tort-feasor release has been obtained by one joint tort-feasor. Where the release provides for a pro-rata reduction of the damages recoverable against all other tort-feasors, the party released may not be sued for contribution; however, the remaining defendants suffer no loss because of their right to obtain an appropriate reduction of any judgment against them upon proving that they would be entitled to contribution in the absence of, the release. See Maryland Code (1957, 1986 Repl.Vol.) Art. 50, § 20; Allgood v. Mueller, 307 Md. 350, *363513 A.2d 915 (1986). The doctrine of parent-child immunity has the effect of “releasing” a tort-feasor who would otherwise be liable for contribution. Thus, the two situations are comparable, and I would apply to this case the solution which has already found favor with the Legislature, and which offers the greatest equity to all parties while preserving the parent-child immunity.2

Development of a rule of this sort does not, in my opinion, exceed the legitimate exercise of this Court’s authority. The rule of parent-child immunity is not one of legislative origin, but is a part of the common law. It is the proper function of this Court, at least in the absence of legislative action, to interpret, refine and modify the common law as necessary. Ireland v. State, 310 Md. 328, 331-32, 529 A.2d 365 (1987). It is similarly a proper function of the Court to develop procedures for fair and equitable implementation and preservation of a venerable common law principle, and I propose no more than that.

Finally, I cannot agree with the majority’s reasoning that the parent-child immunity should not apply because the family unit has taken into consideration the potential for financial impact upon a parent. The rationale is that if the family agrees to bring the action, there can be no possible harm to the family unit. To accept that rationale is to abrogate the immunity, because the reasoning has no special application to partnership cases. If the majority intends to generally abrogate the principle of parent-child immunity, it should say so. This justification for today’s result only serves to unsettle other areas of the law of parent-child immunity.

Judges COLE and BLACKWELL agree with the views expressed herein.

. The right to contribution seems clear under the facts of this case. Under other circumstances, it may be necessary to litigate the question of whether the partner sued was acting in the ordinary course of the business of the partnership or with the authority of the other partners. Although there will be occasions when that issue may be litigated in the trial of the child’s claim, ordinarily the better course would be to litigate that issue separately, thereby avoiding the potential for jury confusion and any semblance of an action by the child against the parent.

. Although the right to contribution in the instant case arises from a partnership relationship, I would apply the same principles to an action brought by a child when the right to contribution arises because there are joint tort-feasors. Concededly, this would represent a change in Maryland law. See Ennis v. Donovan, 222 Md. 536, 161 A.2d 698 (1960).