Unah by and Through Unah v. Martin , 676 P.2d 1366 ( 1984 )

ALMA D. WILSON, Justice.

This appeal presents us with the opportunity to review our adherence to the rule of parental immunity which bars an unemanci-pated minor child from bringing an action for ordinary negligence against his parent.¹

In this case, Nathan Unah, an unemanci-pated minor child, was injured in an automobile accident allegedly caused by the combined negligence of his father, defendant Freeland Unah, and defendant A.F. Martin. Nathan, by and through his mother and next friend, Mary Jane Unah, and Mary Jane Unah, individually, brought this action to recover for personal injuries Nathan has suffered as a result of the accident. On the basis of parental immunity, defendant Unah filed a motion for summary judgment, which was granted. Plaintiff Unah appeals this ruling and urges this Court to either completely abrogate the doctrine of parental immunity, or at least to abrogate it in cases where a child under the age of emancipation suffers injuries resulting from a parent’s negligent operation of a motor vehicle.

A survey of the jurisdictions reflects that the modern trend is either to abolish or to modify the doctrine of parental immunity.² This Court’s view, as expressed in Tucker v. Tucker, 395 P.2d 67 (Okl.1964), heretofore has been to enforce the doctrine where suit was brought by a minor child for injuries suffered due to a parent’s ordinary negligence. In Tucker, the plaintiff, a minor child, sued for damages caused by his mother’s negligence in operation of an automobile. In the interest of preservation of the family and protection of the parent-child relationship, we upheld the rule of immunity. In Tucker, and again in Workman v. Workman, 498 P.2d 1384 (Okl.1972), we responded to the argument advanced that the existence of the parent’s public liability insurance militated against the reason for parental immunity — by stating that Oklahoma had no compulsory liability insurance law, and unless and until it appeared that the insured parent be legally obligated to pay, we would not consider the question of insurance.

The time to which we deferred in Tucker and Workman has arrived, for in 1976, provision for compulsory automobile liability insurance came into force in Oklahoma. Laws 1976, c. 176, § 1, operative December 11, 1976, now as amended, 47 O.S.Supp. 1983, § 7-601. After review of our prior decisions and consideration of authorities as hereafter discussed, we have concluded that an unemancipated minor may recover to the extent of his parent’s liability insurance coverage for injuries caused by the parent’s negligent operation of a motor vehicle.

The origin of parental immunity in American jurisdictions can be traced to a single case, Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), where the Supreme Court of Mississippi sought to protect “the repose of families and the best interests of society” by forbidding minor children to assert claims for personal injuries suffered at the hands of the parent. The Hewellette court refused to allow a child to maintain a false imprisonment action against her mother for maliciously confining her in an insane asylum. That case was followed by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), and Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). In the McKelvey case the Tennessee court denied a minor the right to sue her parents for cruel and inhuman treatment, and in the Roller case, the Washington court denied a minor the right to sue her father who had raped her. The doctrine established in this triology of cases became popular to protect not only the interests of the family, but likewise where liability insurance was available, to protect the insurer against collusive actions between parent and child. See Black v. Solmitz, 409 A.2d 634, 636 (Me.1979). Although readily accepted by most jurisdictions, the doctrine has been criticized by legal commentators and judges alike. See, e.g., Prosser, Law of Torts, § 122 (4th ed. 1971); 1 Harper & James, Law of Torts, § 8.11 at 650 (1956); McCurdy, “Torts Between Parent and Child,” 5 Vill.L.Rev. 521 (1960).

An examination of the case law shows that courts applying the doctrine have relied on several policy reasons for upholding parental immunity. In Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980), five frequently cited justifications are identified: (1) disturbance of domestic harmony and tranquility; (2) interference with parental care, discipline, and control; (3) depletion of family assets in favor of the claimant at the expense of other children in the family; (4) the possibility of inheritance by the parent of the amount received in damages by the child; and (5) the danger of fraud and collusion between parent and child. Of these, the domestic tranquility policy is the rationale most frequently offered. See 1 Harper and James, Law of Torts § 8.11 at 649.

We are of the opinion that today these policy reasons lose much persuasive force and provide no longer a sound basis for disallowing recovery by an unemanci-pated minor child for injuries caused by a parent’s negligent operation of a motor vehicle. 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. We agree with the view expressed in Streenz v. Streenz, 106 Ariz. 86, 88, 471 P.2d 282, 284 (1970), that “[wjhere such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent’s insurance carrier.” Disruption of domestic tranquility is much less likely where the minor child can be compensated for his losses under the parent’s liability coverage, which additionally eases any financial strain on the family resulting from the accident. We find further support in a leading case, Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907, 914 (1975), where it was succinctly stated that “[wjhen insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child’s medical care and support without depleting the family’s other assets.” Accord, Williams v. Williams, 369 A.2d 669 (Del.1976). Under these circumstances, the effect such suit would have on parental discipline or the parent-child relationship is realistically negligible.

The possibility of fraud and collusion by family members against the insurance carrier has also been cited as a prominent reason for denying suit by a minor child against his insured parent. This view is readily countered with the argument that the possibility of fraud or collusion exists to a degree in any case, and that as a part of the fact-finding process, reliance is well-placed on the triers-of-fact to detect collusive and fraudulent claims. While it may be possible that some collusive claims will succeed, we do not believe apprehension of them justifies a blanket denial of meritorious claims. See Transamerica Ins. Co. v. Royle, 656 P.2d 820 (Mont.1983); Soren-sen, supra.

Particularly persuasive is the New York Court of Appeals reasoning in its rejection of the collusion argument in Gelbman v. Gelbman, 23 N.Y.2d 434, 438, 297 N.Y.S.2d 529, 532, 245 N.E.2d 192, 194 (1969), a leading case dealing with intrafamily tort liability in general, where an injured parent sought to recover against her unemanci-pated son for injuries suffered in an automobile accident. We direct attention to the following language of that court:

“The argument has been advanced that, by permitting suits between parent and child for nonwillful negligent acts, we will be encouraging fraudulent law suits. The argument fails to explain how the possibility of fraud would be magically removed merely by the child’s attainment of legal majority. Nor does the argument pretend to present the first instance in which there is the possibility of a collusive and fraudulent suit. There are analogous situations in which we rely upon the ability of the jury to distinguish between valid and fraudulent claims. The effectiveness of the jury system will pertain in the present situation. The definite and vital interest of society in protecting people from losses resulting from accidents should remain paramount. (See James, Accident Liability Reconsidered; The Impact of Liability Insurance, 57 Yale L.J. 549.)”

Public policy has been the sole justification for adoption and proliferation of the judicially created doctrine of parental immunity. The sweep of this doctrine which developed last century must be adjusted to meet legitimate interests under contemporary standards and conditions. We can no longer countenance the legal anomaly where two minor children, negligently injured in the operation of a motor vehicle, one of them a stranger, could recover compensation for his injuries and the other one, a minor child of the operator of the vehicle, could not. Today, where all other passengers in a car are mandatorily protected by liability coverage it is unfair and against public interest to deprive an unemancipated minor the benefit of recovery. In this regard we further observe that familial harmony is more likely to be disturbed where the family’s fund is depleted because the proceeds from liability insurance cannot be reached.

We are of the opinion that the rule of parental immunity in vehicular negligence cases has no rational basis under present circumstances. We hereby qualify the rule of parental immunity in this jurisdiction to allow an action for negligence arising from an automobile accident brought on behalf of an unemancipated minor child against a parent to the extent of the parent’s automobile liability insurance. This partial abrogation of parental immunity does not create a legal duty where none existed before, rather it simply removes a disability which had previously barred recovery. See, Gelbman, supra. Our holding today is limited to the factual situation before us and is not authority for abrogation of parental immunity to actions in negligence other than automobile accidents, for the concept of protection of family unity and harmony retains its vitality. The significance of the existence of compulsory liability insurance, however, is that in automobile cases it impersonalizes the litigation between child and parent and therefore tends not to undermine the family relationship.

This Court bears the responsibility to change a court-made rule of law when it deems the change necessary in the interests of- justice. Therefore, to the extent that Tucker and Workman would bar recovery in the situation before us, they are overruled, as are Wooden v. Hale, 426 P.2d 679 (Okl.1967) and Hale v. Hale, 426 P.2d 681 (Okl.1967), on this point. Since neither fairness nor any principle of public policy dictates that we give purely prospective application to the change effected by today’s decision, it shall be given effect to this case and, prospectively, to all other factually similar cases occurring after mandate herein is issued. Snethen v. Oklahoma State Union of the Farmers Educ. and Coop. Union of America, 664 P.2d 377 (Okl.1983).

The decision of the District Court granting summary judgment is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.

BARNES, C.J., and LAVENDER, J., concur. HODGES, DOOLIN and OPALA, JJ., concur specially. SIMMS, V.C.J., and HARGRAVE, J., dissent.

1 . As a prefatory matter we note that we have indicated in dicta that a parent's liability for intentional torts in civil suits is not within the realm of parental immunity. See Tucker v. Tucker, 395 P.2d 67 (Okl.1974) and Wooden v. Hale, 426 P.2d 679 (Okl.1967).

2 . Those jurisdictions which have abrogated parental immunity, either partially or entirely include: Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970); Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971); Conn.Gen.Stat. § 52-572(c) (Supp.1981); Williams v. Williams, 369 A.2d 669 (Del.1976); Ard v. Ard, 395 So.2d 586 (Fla.App.1981); Petersen v. City & County, 51 Haw. 484, 462 P.2d 1007 (1969); Schenk v. Schenk, 100 Ill.App.2d 199, 241 N.E.2d 12 (1968); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1971); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Black v. Solmitz, 409 A.2d 634 (Me.1979); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); Transamerica Ins. Co. v. Royle, 656 P.2d 820 (Mont.1983); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); N.C.Gen.Stat. § 1-539-21 (Supp.1981); Nuelle v. Wells, 154 N.W.2d 364 (N.D.1967); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Silva v. Silva, 446 A.2d 1013 (R.I.1982); Elam v. Elam, 275 S.C. 132, 268 S.E.2d 109 (1980); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980); Lee v. Comer, 224 S.E.2d 721 (W.Va.1976); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963).

States which have adopted and retained the immunity: Owens v. Auto Mut. Indem. Co., 235 Ala. 9, 177 So. 133 (1937); Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Eschen v. Roney, 127 Ga.App. 719, 194 S.E.2d 589 (1972); Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980); Vaughan v. Vaughan, 161 Ind.App. 497, 316 N.E.2d 455 (1974); Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972); Montz v. Mendaloff, 40 Md.App. 220, 388 A.2d 568 (1978); McNeal v. Administrator of Estate of McNeal, 254 So.2d 521 (Miss.1971); Bahr v. Bahr, 478 S.W.2d 400 (Mo.1972), overruled on other grounds, Fugate v. Fugate, 582 S.W.2d 663 (Mo.1979); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959); Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d 375 (1966); Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Campbell v. Gruttenmeyer, 222 Tenn. 133, 432 S.W.2d 894 (1968); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971); Oldman v. Bartshe, 480 P.2d 99 (Wyo.1971).