Chase v. Greyhound Lines, Inc.

Neely, Judge,

concurring:

I concur in the majority opinion as it relates to the certified questions presented, and I further concur in the reaffirmation of the family immunity doctrine when the real party in interest is a parent or child. However, it appeared on oral argument that the real party in interest in this case is not the named defendant, but rather a liability insurance carrier. Consequently, I would have requested that supplemental briefs be submitted and the case be re-argued on the specific question of whether the family immunity doctrine should be abrogated when the real party defendant in interest is an insurance carrier.

A holding that the family immunity defense is inappropriate when there is liability insurance would be consistent with our opinion in Lusk v. Lusk, 113 W.Va. 17 , 166 S.E. 538 (1932).

The reasons advanced for continuation of the family immunity doctrine when the real defendant is a parent *460 or cHild are persuasive. Society has an interest in preserving harmony in domestic relations, and avoiding suits for damages by petulant, insolent or ungrateful children which would cause families to be torn asunder. Securo v. Securo, 110 W.Va. 1 , 156 S.E. 750 (1931).

Suit by one minor child against his parents would allow the child to gain an advantage over his brothers and sisters at the expense of the common fund, which has been dedicated to the fair and equal support of all of them. See Small v. Morrison, 185 N.C. 577 , 118 S.E. 12 (1923).

Many states have eliminated the family immunity doctrine where there is an insurance carrier. In Dunlap v. Dunlap, 84 N.H. 352 , 150 A. 905 (1930), a case decided before complete abrogation of the immunity doctrine in New Hampshire in Briere v. Briere, 107 N.H. 432 , 224 A.2d 588 (1966), the New Hampshire court held under the facts of the case, that the existence of liability insurance precluded a successful plea of family immunity. Although the New Hampshire court recognized that the existence of insurance did not create liability where none existed otherwise, the court said that the presence of insurance removed the disability which ordinarily would have barred the suit, as the suit was, in effect, between the son and the insurance company.

I recognize, as the court did in Barlow v. Iblings, 156 N.W.2d 105 (1968-Iowa) that the availability of a cause of action and the presence of liability insurance may lead to fraud, or to collusive or friendly suits. One member of the same family may encourage members of his family to bring an action against him, and then suppress defenses to the detriment of an insurance carrier.

However, that problem appears to be handled adequately in cases like Hebel v. Hebel, 435 P.2d 8 (1967-Alaska), which recognized the possibility of fraud and collusion between the parent and the child, and suggested guarding against such a danger by added caution on the part of the court and the jury in examining and assessing *461 the facts. See also Streenz v. Streenz, 106 Ariz. 86 , 471 P.2d 282 (1970). France v. A.P.A. Transport Corp., 56 N.J. 500 , 267 A.2d 490 (1970); Signs v. Signs, 156 Ohio 566 , 103 N.E.2d 743 (1952); Borst v. Borst, 41 Wash. 2d 642 , 251 P.2d 149 (1952),

In West Virginia a solution of this type would require an exception to the rule forbidding discussion of insurance coverage before a jury.

The prevalence of liability insurance has dramatically changed the economic life of this State. This Court has been reluctant to recognize a fact which juries have long recognized, that insurance coverage changes the nature of a law suit. An insurance contract should no longer be considered exclusively as a contract of indemnity. A right-thinking man, recognizing that all of us are more or less negligent with respect to others on numerous occasions, should purchase insurance not only to protect his own estate, but also to spread the risk of injury.

At one time the law of this State appeared to be moving toward a recognition that liability insurance is more than just a contract of indemnity and establishes rights in third parties. In the case of Lusk v. Lusk, supra, this Court ruled that a daughter, who was a passenger on a school bus, could sue her father, the school bus driver, when there was a liability insurance policy. This case accurately states what I consider the correct rule of law.

The movement of the law in other jurisdictions as well as West Virginia is toward a reevaluation of the law of insurance. Family immunity is merely one area which is ripe for reevaluation. There are many areas of abuse under our current law of insurance, the most notable of which is the difficulty of achieving a fair settlement in a small case which does not warrant the expense of a jury trial. This Court and the bar should be developing law which will encourage conflict to be resolved short of litigation. Our current law provides so many incentives *462 to litigation that it perpetuates conflict rather than encouraging its resolution equitably and expeditiously.

The public conscience should be shocked by the practices of many of the larger and better known insurance companies, who litigate every frivolous technical defense through both the lower and appellate courts in the hope of starving just claimants into an ihequitable settlement. Their practices may be considered by some as just retribution for equally frivolous plaintiffs’ law suits, but courts should resist the temptation to build a system of jurisprudence upon the principle of countervailing injustices.

There are attempts being made in federal courts to curtail these abuses which I feel should be imitated and expanded in the State courts of West Virginia. For example, in Maryland Casualty Co. v. Memorial General Hospital (4th Cir. 1972), decided on December 13, 1972 (unpublished opinion), the circuit court awarded counsel fees to the plaintiff in an action against a surety on a construction bond. There, the court said,

“* * * Save in unusual circumstances, no such recovery is generally permissible, and then traditionally only in equity. Sprague v. Ticonic Bank, 307 U.S. 161, 167 (1939). But this doctrine has been relaxed when the allowance is ‘essential to the doing of justice.’ Rolax v. Atlantic Coast Line R. Co. 186 F 2d 473, 481 (4th Cir. 1951). There is reputable authority, furthermore, for the recovery of attorney’s fees in any kind of suit ‘where an unfounded action or defense is brought or maintained in bad faith, vexatiously, wantonly, or for oppressive reasons.’ 6 Moore’s Federal Practice § 54.77 [2]; Stacy v. Williams, 50 FRD 52 (N.D. Miss. 1970). . ."

However, the only way in which this Court can begin to make strides in the general direction of modernizing the law of insurance in this State is to have the questions exhaustively and competently briefed in this Court.