Jilani by and Through Jilani v. Jilani

MAUZY, Justice,

concurring.

I concur in the court’s decision to allow an unemancipated minor child to pursue a *674 cause of action against his or her parent for the negligence of a parent in operating a motor vehicle. The doctrine of parental immunity should only be retained with respect to acts which involve a reasonable exercise of parental authority or the exercise of parental discretion in providing for the care and necessities of a child. In all other cases this judicially created doctrine should be abandoned.

In reviewing various decisions upholding the doctrine of parental immunity, I find four basic premises upon which the doctrine is based: First, the doctrine allegedly preserves the domestic peace, harmony and tranquility of the family unit; second, the doctrine allegedly prevents the possibility of fraud and collusion; third, the doctrine allegedly prevents the potential depletion of the family funds; and fourth, the doctrine allegedly inhibits interference with parental discipline and control.

In regard to the first rationale, it is hard to perceive how suits based in tort will destroy the harmony and tranquility of the family unit while property and contract actions do not. A disruption to the family peace is far more likely to occur as a result of the tortious conduct itself, rather than as a result of allowing a redress of the wrongful action which led to the injury.

When this court abrogated the doctrine of interspousal immunity in Price v. Price, 782 S.W.2d 316 (Tex.1987), we noted, “it is difficult to fathom how denying a forum for the redress of any wrong could be said to encourage domestic tranquility.” Id. at 318 . Other courts have analyzed the family harmony rationale, and similarly rejected it as unmeritorious. See e.g., Briere v. Briere, 107 N.H. 432 , 224 A.2d 588 (1966); Gelbman v. Gelbman, 23 N.Y.2d 434 , 297 N.Y.S.2d 529 , 245 N.E.2d 192 (1969); Falco v. Pados, 444 Pa. 372 , 282 A.2d 351 (1971); Plumley v. Klein, 388 Mich. 1 , 199 N.W.2d 169 (1972); Rupert v. Stienne, 90 Nev. 397 , 528 P.2d 1013 (1974); Elam v. Elam, 275 S.C. 132 , 268 S.E.2d 109 (1980). See also, Dorsey v. State Farm Mut. Auto. Ins. Co., 9 Ohio St.3d 27, 30 , 457 N.E.2d 1169 (1984).

Furthermore, if a defendant has purchased liability insurance and a child sues to collect such insurance, there is little possibility of any disruption of family harmony if the child is allowed recovery. This is especially true when the suit arises out of an automobile accident. In such cases, the nominal defendant parent usually will suffer no loss because insurance coverage is mandated by statutory law in Texas. As the Supreme Judicial Court of Massachusetts noted:

When 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. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal — the easing of family financial difficulties stemming from the child’s injuries.

Sorensen v. Sorensen, 369 Mass. 350, 362 , 339 N.E.2d 907, 914 (1975). Although I adhere to the principle that the mere existence of insurance should not create a cause of action where none otherwise exists, 1 it is appropriate and relevant to consider liability insurance as one factor because of its prevalent nature.

The second justification fpr prohibiting parent-child suits, the possibility of collusive lawsuits, was rejected by this court when it abolished interspousal immunity in Price v. Price, 732 S.W.2d 316 (Tex.1987). In Price, we noted that our system of justice is capable of ascertaining the existence of fraud and collusion and therefore concluded that the mere possibility of a fraudulent claim should not be the basis for denying recovery. Similarly, in Kirchner v. Crystal, 15 Ohio St.3d 326 , 474 N.E.2d 275 (1984), the court held:

The deterrent effect of a perjury charge, extensive and detailed pretrial discovery procedures, the opportunity for cross-examination and the avoidability of summary judgment motions are but a few examples of the tools available to our judicial *675 system in exposing fraudulent claims in any type of lawsuit.

There is no justifiable reason why we should not continue to adhere to the principle that our legal system is equipped to reduce the possibility of fraud.

In analyzing the applicability of the “depletion of family funds” argument, it is interesting to note that this rationale is never applied for the purpose of protecting the wrongdoer’s children against claims of strangers injured by the parents’ negligent conduct. In Sneed v. Sneed, 705 S.W.2d 392 (Tex.App.— San Antonio 1986, writ ref’d n.r.e.), the court allowed a suit on behalf of a child against his deceased parents’ estate, and held, “it is hard to understand why a child may not be compensated for an injury by his parent while a stranger will be allowed to deplete the ‘family fund’ to the detriment of the tortfeasor’s children.” Id. at 397 .

Under current Texas law, a parent whose negligent operation of an automobile causes personal injury can be sued by his spouse, nephews and nieces, aunts and uncles and all relatives, but not his children. If our legislative and judicial branches have determined that personal injury actions by other relatives will not place an impermissible strain on the family fund, a suit by an unemancipated child will likewise not overly burden the family financial resources.

Under Texas law, drivers and owners of automobiles are required to purchase liability insurance. 2 Assuming the owner of a car complies with this mandate, there will be little or no depletion or exhaustion of family funds if the insurance coverage is adequate.

In reviewing the fourth rationale for parental immunity, that it inhibits interference with parental discipline and control, the rule developed in Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971) gives adequate protection from any such interference. In Felderhoff , this court retained the immunity rule with respect to acts of ordinary negligence which involve a reasonable exercise of parental authority or ordinary parental discretion with respect to provision for the care and necessities of the child. An automobile negligence case does not involve a reasonable exercise of parental authority or the exercise of parental discretion. See Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1971); Schneider v. Coe, 405 A.2d 682 (Dela.1979); Turner v. Turner, 304 N.W.2d 786 (Iowa 1981).

After reviewing the policy reasons supporting the doctrine of parental immunity, I am convinced that they do not justify denying plaintiff the right to pursue a cause of action in this case. Had there been passengers in the car other than children of the parent driver, those passengers could bring suit against the driver for personal injuries. To allow a recovery here to all relatives, friends or acquaintances, but not to the driver’s own children, would be a denial of the children’s right to legal redress.

Although the doctrine of parental immunity was originally designed to protect parents, in the vast majority of these cases, the only party to benefit from the doctrine is the parents’ liability insurance carrier. If given the choice, what parent would elect to insure every person in the world against his negligence except his own children? Parents in this state would be outraged if they knew that the doctrine, when applied, is now used to bar their children’s claims against the parents’ liability insurance carrier.

The doctrine of parental immunity should be retained with respect to acts which involve a reasonable exercise of parental authority or the exercise of parental discretion in providing for the care and necessities of a child. However, the doctrine was not intended to be used, and should never be used, to shield a liability insurance carrier from the just claims of a minor child.

The best solution to the question presented in this and similar cases is the enactment of a direct action statute. See Continental Gas Co. v. Huizar, 740 S.W.2d 429, 432 (Tex.1987) (Kilgarlin, J., concurring). Such a statute would allow injured persons to pursue a cause of action against a tort- *676 feasor’s liability insurance company. If Texas had a direct action statute, the Jilani children would be suing their father’s liability insurance company, not their father.

When insurance is required by a statute or ordinance, the protection of the insured is not the primary objective of the insurance. Even in the absence of specific language securing to injured persons direct rights under the policy, there is inherent in such a policy an inference of a compulsory undertaking on the part of the insurer to answer in damages to an injured person. “[T]he compulsory insurance requirement of the Texas Motor Vehicle Safety law implies that all potential claimants resulting from automobile accidents are intended as beneficiaries of the statutorily required automobile liability coverage.” Dairyland County Mutual Ins. Co. of Texas v. Childress, 650 S.W.2d 770, 775 (Tex.1983).

The legislature has bestowed on the Insurance Commission the power of approval of “No Action” clauses in standard insurance policies. Those clauses contractually prohibit insurance companies from being named as parties in suits against their insureds.

It is inconsistent with public policy to sanction a situation in which the ultimate beneficiary of policy proceeds is deprived by a provision in the policy of an open, speedy añd realistic opportunity to pursue his right to an adequate remedy at law jointly against the insured and the insurer. The result obtained by such policy restrictions is especially incongruous when the insurer participates in the controversy, not as a joint defendant in the proceeding brought by the injured plaintiff against the insured, but, rather, as the “undisclosed guardian” of the interest and rights of the insured. Under the present system, the injured plaintiff is precluded from having the trial court directly consider in one action all facets of the defendant’s joint and several liability, not only as to the plaintiff’s claim against the insured, but also as to any defenses the insurer has against the insured which might operate to destroy the plaintiff’s claim.

Joinder of the insurer would avoid the potential dangers inherent in the above described situation. Rules of joinder are adopted with the purpose of avoiding multiplicity of suits, and there is no reason why insurance companies should be exempt from the law in this respect. If joinder were allowed initially, all inter-related claims and defenses could be heard and adjudicated reciprocally among all parties, all the cards would be on the table, and the plaintiff would have the same initial rights against insurer as insurer now has against plaintiff. In this manner, the interest of all parties in expeditiously litigating the claim would be furthered.

The argument that a jury is more apt to return a verdict for the injured party, and for a larger amount, if they know the loss is ultimately to fall on an insurance company is untenable. Jurors know all motor vehicle owners in this state are required to carry liability insurance. Those who drive a vehicle are reminded of this fact each time they pay their insurance premiums.

Considering the public policy of avoiding a multiplicity of suits and of eliminating unreasonable impediments in the adjudicative process, I can find no justifiable reason why an insured and insurer should be allowed to employ a “no action” clause to contract away or postpone the legal remedy of a third party, or to impose unusual limitations on a third party’s right to sue adverse parties jointly. See Shingleton v. Bussey, 223 So.2d 713 (Fla.1969).

ROBERTSON, J., joins in this concurring opinion.

. See, e.g., Goiter v. White, 20 Wis.2d 402 , 122 N.W.2d 193, 197 (1963).

. Tex.Rev.Civ.Stat.Ann. art. 6701h, § 1A (Vernon Supp.1988).