Appendix — Karam v. Allstate Insurance Co.

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APPENDIX A

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, 1982 TERM

City of Columbus. To Wit: June 22, 1982

Rashid Karam et al.,

Appellants,

No. 81-958

vs.

APPEAL FROM THE COURT

Allstate OF APPEALS

Insurance Co. et al.,

Appellees.

for FRANKLIN County

This cause, here on appeal from

the Court of Appeals for FRANKLIN

County, was heard in the manner

prescribed by law. On consideration

thereof, the judgment of the Court of

Appeals is affirmed for the reasons set

forth in the opinion rendered herein.

and it appearing that there were

reasonable grounds for this appeal, it

la

is ordered that penalty be assessed

herein.

It is further ordered that the

appellee recover from the appellant its

costs herein expended; and that a

mandate be sent to the COMMON PLEAS

COURT to carry this judgment into

execution; and that a copy of this

entry be certified to the Clerk of the

Court of Appeals for FRANKLIN County

for entry.

I, Thomas L. Startzman, Clerk of

the Supreme Court of Ohio, certify that

the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal

of the Court this day

of el °

Clerk

Deputy

2a

70 Ohio St.2d] KARAM v. INS. CO. 227

Statement of the Case

KARAM ET AL., APPELLANTS, v. ALLSTATE

INSURANCE COMPANY, ET AL.,

APPELLEES.

(Cite as Karam v. Allstate Ins. Co.

(1982), 70 Ohio St.2d 227.)

Negligence-Automobile accident-Suit by

child against parent-Parent-child

immunity applicable.

An unemancipated child may not recover

in a tort action instituted against

the administrator of the estate of

the child's mother and her liability

insurance company for personal

injuries received by the child in an

automobile accident alleged to be

proximately caused by the negligent

operation of an automobile, and

which results in the mother's

death. The immunity arising from

the parent-child relationship shall

be recognized even though the

alleged negligenct parent has

deceased. (Teramano v. Teramano, 6

Ohio St.2d 117, followed.)

(No. 81-958-Decided July 23, 1982.)

Appeal from the Court of Appeals for

Franklin County.

3a

On August 14, 1978, Rose Karam was

operating a motor vehicle which was

involved in an accident on Dublin Road,

Franklin County, Ohio, with another

motor vehicle. Rose Karam and other

passengers in her vehicle were killed

in the accident. Injured in the

accident was Rashid Karam, Rola Karam,

and Rita Karam, who were minor children

of Rose Karam and her husband Maurice

Karam and resided in their parents’

home at the time of the accident.

On January 15, 1980, Maurice Karam,

as father and next of kin of the three

children, instituted suit in the Court

of Common Pleas of Franklin County

against himself as administrator of the

estate of Rose Karam, the Allstate

Insurance Company and the Buckeye

Insurance Company seeking to recover

damages on behalf of the children. The

complaint averred the two insurance

companies had issued contracts of

liability insurance covering Rose Karam

and that the proceeds of the insurance

policies were not assets of the

decedent's estate. Maurice Karam

joined individually in the complaint

seeking recovery for hospital and

medical expenses and for loss of

society, companionship, and future

services of his children.

4a

228 JANUARY TERM, 1982. [70 Ohio St.2d

Opinion, per STEPHENSON, J.

On May 22, 1980, the court sustained

a Civ. R. 12(B) (6) motion to dismiss

filed by the insurance companies. On

November 26, 1980, the court entered a

summary judgment in favor of Maurice

Karam as administrator of Rose Karam'‘s

estate.l Upon appeal to the Court of

Appeals, the judgment was affirmed.

The cause is now before this court

pursuant to the allowance of a motion

to certify the record.

Messrs. Wolske & Blue and Walter J.

Wolske, Jr., for appellants.

Messrs. Crabbe, Brown, Jones, Potts

& Schmidt, Mr. Theordore D. Sawyer and

Mr. David J. Richards, for appellees.

STEPHENSON, J. This appeal requires

us to determine the scope of the Ohio

rule of parental immunity which bars

5a

the recovery in a tort action by a

child against its parent based upon

personal injuries proximately caused by

negligent conduct of the parent.

Appellants, in their first proposition

of law, do not argue for a total

abrogation of the rule, but rather urge

this court to hold the rule inapplic-

able where, as here, the parent alleged

to be negligent is deceased and

liability insurance proceeds alone

would be the source for the payment of

any judgment granted in favor of the

child.

The rule that a parent is immune

from liability in a tort action

instituted against the parent by a

child is universally recognized as one

judicially created in Hewlett v. George

(1891), 68 Miss. 703, 9 So. 885, and,

unlike interspousal immunity, has no

common law origin. The rationale in

Hewlett for the rule is that such an

accion disturbs the domestic peace and

harmony of the family and is contrary

to public policy.

After its pronouncement in Hewlett,

the rule, subject to certain excep-

tions, was adopted in practically all

jurisdictions and represented to

overwhelming weight of authority.2 A

6a

Opinion, per STEPHENSON, J.

principal reason articulated in support

of the rule, in addition to the family

tranquility reason, was the danger of

fraud and collusion by reason of the

widespread existence of liability

insurance. Sorensen v. Sorensen

(1975), 369 Mass. 350, 339 N.E.2d 907;

Guess v. Gulf Ins. Co. (1981), 96 N.M.

’ ° ; Streenz v. Streenz

(1970, 106 Ariz. 86, 471 P.2d 282.

Additional reasons relied upon to

support the rule were (1) depletion of

the family exchequer, (2) the

possibility of inheritance by the

parent of the amount recovered in

damages by the child, and (3)

interference with parental care,

discipline, and control. Trevarton v.

Trevarton (1963), 151 Colo. 418, 378

P.2d 640; Borst v. Borst (1952), 41

Wash. 2d 642, 251 P.2d 149; 43 Harvard

L. Rev. 1030, 1056.

In a growing number of jurisdictions

the parental immunity rule has been in

many recent cases reconsidered and

abrogated, mostly in part,3, upon the

basis that the traditional

va

reasons relied upon to support the rule

are no longer persuasive, particularly

the donestic tranguility and collusion

rationale. See Annotation 41

A.L.R.3d 904, Liability of Parent

70 Ohio St.2d) KARAM v. INS. CO. 231

Opinion, per STEPHENSON, J.

for injury to Unemancipated Child

Caused by Parent's Negligence.

The issue of parental immunity was

first before this court in Signs v.

Signs (1952), 156 Ohio St. Se. In

Signs, a seven-

232 JANUARY TERM, 1982 [70 Ohio St.2d

Opinion, per STEPHENSON, J.

year old child had instituted suit to

recover for injuries suffered from the

alleged negligence of a partnership, of

which her father was a partner, in the

maintenance and operation of a gasoline

pump. After a review of the historical

development of the rule, the court held

that “[a] parent in his business or

vocational capacity is not immune from

a personal tort action by his

unemancipated minor child.” Unartic-

ulated, but implicit in such syllabus

language, is that the rule of paental

immunity was in force in Ohio.

In Teramano v. Teramano (1966), 6

Ohio St.2d 117, the issue of parental

immunity was again before this court.

In Teramano, the plaintiff was an

unemancipated child who was struck in

the driveway of his home by an

automobile operated by his father who

it was alleged was operating his

automobile at a high speed and under

the influence of intoxicants. The

court, in denying the right of

recovery, and after concluding that the

father's conduct was not intentional or

malicious, held the following:

"1. A parent is immune from suit by

his unemancipated minor child for tort

unless facts of the case are sufficient

to show abandonment of the parental

relationship. (Signs v. Signs), 156

Ohio St. 566, explained.)

10a

"2. A malicious intent to injure

existing in the conduct of a parent

toward his minor unemancipated child

evidences abandonment of the parental

relationship. Malicious intent to

injure in such cases may be actual or

implied.

"3. Where the petition filed by an

unemancipated minor against his parent,

seeking damages for personal injuries,

alleges that the injuries were

willfully inflicted but it becomes

apparent upon the opening statement of

Plaintiff's counsel that the acts

complained of were not done with a

malicious intention to injure or were

not such acts as would justify a

presumption of malicious intent to

injure, a verdict should be directed

for defendant.”

The Court of Appeals below in the

case sub judice affirmed, essentially,

upon the basis that there being no

abandonment in the sense of volitional

action by Rose Karam in the termination

of malicious intent otherwise existing,

the holding in Teramano was controlling.

lla

DOO SP

70 Ohio St.2d] KARAM v. INS. CO. 233

Opinion, per STEPHENSON, J.

Appellants essentially argue that

the focus should not be on a wooden

application of the concept of

abandonment, as that term is defined as

embracing intentional action, but

rather upon the fact that when the

parent is deceased, liability insurance

coverage exists and all remaining

family members join in the suit; thus,

the basic rationale of the rule

respecting disturbance of family

tranquility does not exist and the

parental immunity rule should not

apply. Assuming, arguendo, there is

merit in such argument, there still

exists an important public policy

aspect which requires consideration.

In adjudicating the issue of

parental immunity, courts have

frequently drawn an analogy to the

doctrine of interspousal immunity in

support of the rule. Although the

analogy has been criticized in that the

Origins of the two doctrines are

historically distinct, nevertheless

both involve inter-family litigation

and rest in part upon the same ground,

i.e., that of public policy in the

prevention of fraud and collusion.5

Understandably, therefore, courts in

jurisdictions having in effect a

doctrine of interspousal immunity have

l2a

relied upon the existence of

interspousal immunity to support the

parental immunity doctrine. Downs v

Poulin (Me. 1966), 216 A.2d 29; Luster

v. Luster (1938), 299 Mass. 480,

N.E.20 438. By the same token, when a

jurisdiction has abrogated the doctrine

of interspousal immunity, courts have

utilized such rejection in abrogating

parental immunity upon the basis that a

principal supporting underpinning,

i.e., fraud and collusion, having been

rejected in interspousal litigation, it

was equally without merit in parental

immunity adjudication. Hebel v. Hebel

(Alaska 1967), 435 P.2d 8; Gibson v.

Gibson (1971), 3 Cal.3d 914, 92 Cal.

Rptr. 288, 479 P.2d 648; Black v.

Solmitz, (Me. 1979), 409 A.

Turner v. Turner (Iowa 1981), 304

We ?

l3a

234 JANUARY TERM, 1982, [70 Ohio St.2d

Opinion, per STEPHENSON, J.

France v. A.P.A. Oy eS Corp.

(1970), 56 N.J. 500, A.2d 490;

Plumley v. Klein (1972), 388 Mich. l,

199 N.W.2d 169; Guess v. Gulf Ins. Co.,

supra (96 N.M. 27).

As noted in Varholla v. Varholla

(1978), S& Unio St.2d 269, 270, this

court in Lyons v. Lyons (1965), 2 Ohio

St.2d 243, approved interspousal

immunity with one of the three

principal reasons being articulated as,

"the immunity prevents fraud and

collusion at the expense of tactically

disadvantaged insurance companies." In

Bonkowsky v. Bonkowsky (1982), 69 Ohio

St.2d 152, this court reaff’.mxed its

adherence to the doctrine o.

interspousal immunity.

We view Bonkowsky as foreshadowing

our holding herein inasmuch as we

cannot logically accept as meritorious

the collusion argument to support a

doctrine of interspousal immunity and

yet find the same argument insubstan-

tial in child-parent litigation. This

is particularly so when, as here, the

surviving parent occupies the positions

of plaintiff, in both a representative

and individual capacity, and also of

defendant in a representative capacity,

and the children seeking damages are

under his cutody and control and

dependent upon him for care and

support. ®

l4a

For the above reasons, we reject

appellants’ first proposition of law

and adhere to the rule of parental

immunity for negligent acts by a parent

as enunciated in Teramano v. Teramano,

supra.

As a second proposition of law

appellants assert the court erred in

sustaining a motion to dismiss the two

insurance companies. We agree that

this was error, but not prejudicial.

Although the general rule is that no

direct action is permissible by an

injured party against a tortfeasor's

liability insurance company, the right

of action against the company arising

under R.C. 3929.20 only after the

tortfeasor has obtained a judgment

against the insured which is unpaid,

this court enunciated an exception in

the second paragraph of the syllabus in

Heuser v. Crum (1972), 31 Ohio St.2d

90, as follows:

“Where it is alleged in an action

for bodily injuries that

15a

70 Ohio St.2d) KARAM v. INS. CO. 235

Concurring and Dissenting Opinion,

per C. BROWN, J.

such injuries were proximately caused

by the negligence of a decedent and

that he had a policy of insurance

insuring him against liability for such

negligence, anc it does not appear that

any other claims covered by such

insurance have been asserted, such

action may be brought against the

executor or administrator of such

decedent, and decedent's liability

insurer, at any time within the statute

of limitations on such actions without

presenting a claim against the estate

within the time specified in R.C.

2117.06 or R.C. 2117.07, and timely

service of summons upon the insurer-

defendant is sufficient to commence the

action." (Emphasis added.)

Under the facts herein, the

exception is applicable and joinder

proper. However, inasmuch as we have

rejected appellants’ first proposition

of law, the error is necessaily

harmless.

Accordinly, the judgment of the

Court of Appeals, is affirmed.

Judgement affirmed.

VICTOR, LOCHER, HOLMES and

KRUPANSKY, JJ., concur.

l6a

SWEENEY, Acting C. J., and C. BROWN,

J., concur in part and dissent in part.

STEPHENSON, J., of the Fourth

Appellate District, sitting for

CELEBREZZE, C.J.

VICTOR J., of the Ninth Appellate

District, sitting for W. BROWN.

CLIFFORD F. BROWN, J., concurring in

part and dissenting in part. The

reasons given by this court in this

case to support the parental immunity

for negligent acts by a parent toward a

child, namely, “that of public policy

in the prevention of fraud and

collusion" and preservation of domestic

peace, harmony and tranguility, are the

same flimsy rationalizing and

irrelevant nonsense used to give

continuing life to the interspousal

immunity doctrine in Bonkowsky v.

Bonkowsky (1982), 69 Ohio St.2d 152.

Just as Justice William B. Brown in his

dissents in Varholla v. Varholla

(1978), 56 Ohio St.2d 269, 271-275, and

Bonkowsky, supra, at pages 156-162,

recognized the need for eliminating

spousal immunity, the urgency for the

death of the parental immunity rule is

equally compelling. This

17a

236 JANUARY TERM, 1982 [70 Ohio St.2d

Concurring and Dissenting cesses

per C. BROWN, J.

Clarion call has been recognized by

more than half of our states. See,

e.g., Sisler v. Seeberger (1979), 23

Wash. App. 612, 596 P.2d 1362; Lee v.

Comer (W. Va. 1976), 224 S.E.2d 271;

Gibson v. Gibson (1971), 3 Cal.3d 914,

92 Cal. Rptr. 288, 479 P.2d 648;

Streenz v. Streenz (1970), 106 Ariz.

86, 471 P.2d 282; Badigan v. Badigan

(1961), 9 N.Y¥.2d 472, 215 N.Y. Supp.2d

35; 41 A.L.R.3d 964-970, Section 13;

see footnote 4 herein.?

Nothing in the record before us, nor

any statistical data dehors the record,

supports the finding of this court in

this case or in Teramano v. Teramano

(1966), 6 Ohio St.2d 117, that family

tranguility is preserved or that fraud

is prevented by the parental immunity

defense which unjustly shackles the

innocent injured victims, the Karam

Plaintiffs, permitting them to suffer a

wrong without a remedy. Such a

judicial finding is from the dream

world, unrealistic and pure drivel.

One might just as validly speculate

that the parental immunity rule exists

to pull the chestnuts out of the fire

for the liability insurance companies

by reducing in small measure their

18a

- a

total insurance benefits payable,

expecting and hoping thereby that

insurance premiums will be reduced

slightly for all policy holders,

including the judges who sustain this

ridiculous immunity rule which serves

no good and promotes nothing but evil.

This rule is solely a product of

judicial selfishness, entirely devoid

of compassion and a sense of justice.

The rationale that barring the minor

Karam plaintiffs from pursuing a tort

claim sounding in negligence against a

deceased parent's estate will somehow

promote family hamony and felicity and

preserve parental care, discipline and

control completely escapes.® Since

the tortfeasor parent

19a

oe

ee oe

—s

70 Ohio St.2d] KARAM v. INS. CO. 237

Concurring and Dissenting Opinion,

| per C. BROWN, J.

named as defendant in the legal action

is now deceased, such action can have

no effect whatever on the discharge of

the sur-

20-

238 JANUARY TERM, 1982. [70 Ohio St.2d

Concurring and Dissenting Opinion

per, C. BROWN J.

viving parent's responsibilities, nor

can it disrupt the harmony of the

surviving family members. Rather, a

successful suit by the Karm children

against the deceased parent's admini-

strator, the children thereafter

obtaining the liability insurance

benefits to satisfy such claims, would

ease the financial burdens caused by

the bodily injuries, thereby promoting

family harmony. When the reasons for a

rule cease the rule should cease.

Therefore parental immunity should be

abrogated.

Even if Ohio preserves the parental

immunity rule generally, at a minimum,

an exception should be carved in this

case, so that parental mmunity is

rendered inapplicable by the death of

the parent. This exception has been

established in many other jurisdic-

tions. Union Bank & Trust Co. v. First

Nat. Bank & Trust Co. (C.A. 5, 1966),

362 F.2d 311, affirmed following

remand, 396 F.2d 795; Thurman v.

Etherton (Ky. 1970), 459 S.W.2d 402;

rennecke v. Kilpatrick (Mo. 1960), 336

S.W.2d 66; Dean v. Sm ith (1965), 106

N.H. 314 3 Palosey v.

Tepper (1962), “71 N.J. Super 294, 176

2la

70 Ohio St.2d] KARAM v. INS. CO. 239

Concurring and Dissenting Opinion,

per C. BROWN J.

818; Parks v. Parks (1957), 390 Pa.

287, 135 A.2d 65; 41 A.L.R.3d, 944-946.

Nor is the argument convincing that

such suits result from collusion and

are a source of fraud on the courts.

Modern civil procedure and discovery

tools available to both the courts and

the “tactically disadvantaged insurance

companies" will easily meet the

challenge of spurious or fraudulent

Claims. See Bonkowsky, supra, at page

163.

As it did in Bonkowsky, this court

again misses an opportunity to abrogate

an outmoded immunity doctrine. While

respecting the principle of stare

decisis, the need for modification and

modernization in the law is equally

compelling. "Modification implies

growth. It is the life of the law."

Washington v. Dawson & Co. (1924), 264

U.S. 219, 236 (Brandeis, J., dissenting

opinion.)

Recognizing that where liability

insurance exists, the domestic

tranguility argument has no validity,

and being confident that our adversary

system is capable of rooting out fraud

and collusion, I would join the ever

increasing number of enlightened

jurisdictions and overturn the

22a

—_— as «=

judicially created shibboleth of

“parental immunity” to give injured

minors their rightful day in court. As

I did in Bonkowsky, I dissent from a

decision which does not serve the

purpose of justice.

I concur in that part of the

judgment of this court affirming the

dismissal by the trial court of the two

insurance companies as defendants.

SWEENEY, Acting C.J., concurs in the

foregoing concurring and dissenting

opinion.

23a

FOOINOTES

1 Although the entry granting

summary judgment is general in form, we

presume the trial court intended by its

judgment to deny relief upon the

individaul claim of Maurice Karam, as

well as the claims of the minors, upon

the basis the claim was one for

consequential damages or barred by the

rule of interspousal immunity, or both,

and thus the judgment was final and not

interlocutory by reason of Civ. R.

54(B).

2 The generally recognized

ions were summarized in Gibson v.

Gibson (1971), 3 Cal.3d 914, at page

918, 92 Cal. Rptr. 288, 290, 479 P.2d

648, thusly: “No sooner had American

courts, including our own, embraced the

parental immunity doctrine than they

began to fashion a number of qualifica-

tions and exceptions to it. In

Martinez v. Southern Pacific Co.,

Supra, 45 Cal.2d 244, we allowed an

emancipated minor to sue her parent for

simple negligence; in Emery v.

(1955), 45 Cal.2d 421 [289 P.2d ast,

we held that willful or malicious torts

were not within the scope of the

immunity. Courts in other states

compounded the doctrine's

idiosyncrasies in decisions permitting

tort actions by minors against the

estate of a deceased parent (Davis v.

24a

+. ee ee

Smith (3d Cir. 1958), 253 F.2d 286;

Dean v. Smith (1965), 106 N.H. 314 [211

410]; Brennecke v. Kilpatrick (Mo.

1960), 336 S.W.2d 68); against the

parent in his business capacity (Si

v. Si (1952), 156 Ohio St. 566 [10

N.E. 43]; Borst v. Borst (1952), 41

Wn.2d 642 (251 P.2d 149]; Lusk v. Lusk

(1932), 113 W. Va. 17 [166 S.E. 538);

Dunlap v. Dunlap, Supra, 84 N.H. 352);

and against the parent's employer under

respondeat superior for the tort of the

parent within the scope of his

employment. (Stapleton v. Stapleton

(1952), 85 Ga. App. 728 [70 S.E.2d

156]; O'Connor v. Benson Coal Co.

(1938), 310 Mass. 145 [16 N.E.2d 636);

Mi-Lady Cleaners v. McDaniel (1938),

235 Ala. 469 [179 So. 908, 116 A.L.R.

639]; Chase v. New Haven Waste Material

Corporation (1930), 111 Conn. [150 A.

, A.L.R. 1497].)*

3 The identifiable reason for

only partial abrogation of the rule is

a general consensus of opinion that

certain areas of conduct inherent in

the parent-child relationship involving

the exercise of discretion must be

entitled to immunity. See Section 895G

of the Restatement of Torts 2d (1979)

and commentary thereto. A marked lack

of unanimity in accommodating this area

of immunity exists in those

jurisdictions which have abrogated the

immunity rule. Courts have ranged from

25a

—

undertaking to judicially enunciate

certain exceptions, as in Goller v.

White (1963), 20 Wis.2d 402, 122 N.W.2d

193, i.e. "(1) [w)here the alleged

negligent act involves an exercise of

parental authority over the child, and

(2) where the alleged negligent act

involves an exercise of ordinary

parental discretion with respect to the

provision of food, clothing, housing,

medical and dental services, and other

care" (Id. at 413); to adoption in

Gibson v. Gibson, oupha (3 Cal.3d 914),

at page 921, of immunity under a test

of “what would an ordinary reasonable

and prudent parent have done in similar

circumstances?"; confinement to

abrogation in negligent driving cases

only with precise areas of immunity to

be subsequently developed in future

adjudication, Hebel v. Hebel (Alaska

1967), 435 P.2d 8; together with two

jurisdictons restricting recovery

solely to liability insurance proceeds,

Sorenson v. Sorenson (1975), 369 Mass.

, 339 N.E.2 , and Williams v.

Williams (Del. 1976), 369 A.2d 669.

The Goller exceptions have been

criticized in Gibson v. Gibson, supra,

at page 921, and Anderson v. Stream

(Minn. 1980), 295 N.W.2d 595, 598; the

reasonable parent exception has been

the subject of criticism in Pedigo v.

Rowley (1980), 101 Idaho 201, S16 P.2d

560; and the abrogation of immunity

only in automobile negligence cases

26a

ee

together with restricing recovery to

insurance proceeds rejected in Black v.

Solmitz (Me. 1979), 409 A.2d 634, 639, —

as “[t]hose limitations seem to us

objectionable as suggesting that the

decision to restrict immunity is based

on expediency rather than on correct

legal principles. In our view such

decisions are difficult to defend

against the charge that they effect a

result more appropriately reserved for

legislation. Furthermore, the

Massachusetts rule tailoring abrogation

to the amount of the parent's

automobile liability insurance leads to

difficulties by unavoidably introducing

the fact of defendant's insurance, and

the amount of it, as elements of a

Claim or defense."

Given the inability of courts to

agree, when the parental immunity rule

is vartially abolished, of the areas in

which it should be retained, it would

appear a reasonable conclusion that

abrogation in any event should emanate

from the General Assembly with the

scope of immunity abolished and

remaining precisely drawn for the

benefit of litigants, bench and Bar.

4 The parental immunity doctrine

has not been initially adopted, or if

adopted, has been abrogated in whole or

in part in the following jurisdictions:

1. Alaska, Hebel v. Hebel, supra.

2. Arizona, Streenz v. Streenz

(1970), 106 Ariz. 86, 471 P.2d 262.

27a

3. California, Gibson v. Gibson,

supra.

4. Connecticut, Gen. Stat.

Section 52-572c (1981 Rev.).

5. Delaware, Williams v.

Williams, supra.

6. Hawaii, Tammashiro v. De Gama

(1969), 51 Haw. 74, 450 P.2d 998.

7. Iowa, Turner v. Turner (1981),

304 N.W.2d 786.

8. Kansas, Nocktonick v.

Nocktonick (1980), 227 Kan. 785, 611

P.2d 135.

9.Kentucky, Thurman v. Etherton

(1970), 459 S.W.2d 402; Rigdon v.

Rigdon (1971), 465 S.W.2d 921.

10. Massachusetts, Sorensen v.

Sorensen, supra.

1l. Maine, Black v. Solmitz, supra.

12. Michigan, Plumley v. Klein

(1972), 388 Mich. 1, 199 N.W.2d 169.

13. Minnesota, Silesky v. Kelman

(1968), 281 Minn. 431, 161 N.W.2d 631;

Anderson v. Stream, supra.

14. Missouri, Fugate v. Fugate

(1979), 582 S.W.2d 663.

15. New Hampshire, Briere v.

Briere (1966), 107 N.H. 432, 224 A.2d

16. New Jersey, France v. A.P.A.

Set Corp. (1970), 56 N.J. 500,

67 A.

17. New Mexico, Guess v. Gulf Ins.

Co. (1981), 96 N.M. 27, P. °

18. New York, Gelbman v. Gelbman

(1969), 23 N.¥.2d 434, 245 N.E.2d 192.

28a

- ee ms

19. Nevada, Rupert v. Steinne

(1974), 90 Nev. 357, 528 528 P.2d 1013.

20. North Carolina, Gen. Stat.

Section 1-539.21 (1981 Supp.).

21. North Dakota, Neuvelle v. Wells

(1967), 154 N.W.2d 364.

22. Pennsylvania, Falco v. Pados

(1971), 444 Pa. 372, 282 A.2d 351.

23. South Carolina, Elam v. Elam

(1980), 275 S.C. 132, 268 S.E.2d 109.

24. Virginia, Smith v. Kauffman

(1971), 212 Va. 181, 183 S.E.2d 190.

25. Vermont, Wood v. Wood (1977),

135 Vt. 119, 370 A.2d 191.

26. Washington, Merrick v.

Sutterlin (1980), 93 Wash. 2d 411, 610

P.2d 891.

27. West Virginia, Lee v. Comer

(1976), 224 S.E.2d 721.

28. Wisconsin, Goller v. White,

a.

The Supreme Court of Florida has

not decided the issue of parental

immunity. However, several appellate

courts in Florida have decided the

issue with conflicting results. See

Ard v. Ard (Fla. App. 1981), 395 So.2d

586; Horton v. Unigard Ins. Co. (Fla.

App. 1978), 355 So. 54.

The following jurisdictions

continue to follow the doctrine of

parental immunity:

1. Alabama, Owens v. Auto Mutl.

Indem. Co. (1937), 235 Ala. 9, 177 So.

): nae

29a

—-

2. Arkansas, Thomas v. Inmon

(1980), 268 Ark. 221, 594 S.W.2d 853.

3. Colorado, Horton v. Reaves

(1974), 186 Colo. 149, 526 P.2d 304;

Hansen v. Hansen (Colo. App. 1979), 608

P.2d 365.

4. Georgia, Wisenbaker v. Zeigler

(1976), 140 Ga. App. 90, 230 S.E.2d 97.

5. Idaho, Pedigo v. Rowley, supra.

6. Illinois, Gerrity v. Beatt

(1978), 71 111.2d 47, 373 N.E.2d 1323;

Illinois Nat'l Bank & Trust Co. v.

Turner (1980), 83 Ill. App.3d 234, 403

N.E.2d 1256.

7. Indiana, Hunter v. State

(1977), 172 Ind. App. 397, 360 N.E.2d

588; Vaughan v. Vaughan (1974), 161

Iné App. 497, 316 N.E.2d 455.

8. Maryland, Shell Oil Co. v.

Pyckman (1979), 43 Md. App. 1, 403 A.2d

379; Montz v. Mendaloff (1978), 40 Md.

App. ’ A.2d 568.

9. Mississippi, McNeal v. Estate

of McNeal (1971), 254 So.2d 521.

10. Montana, State Farm Mutual

Auto Ins. Co. v. Leary, (1975), 168

Mont. 482, 544 P.2d 444.

ll. Nebraska, Pullen v. Novak

(1959), 169 Neb. 211, 99 N.W.2d 16.

12. OQhio, Teramano v. Teramano

(1966), 6 Ohio St. , 216 N.E.

375.

13. Oklahoma, Van Wart v. Cook

(Okla. App. 1976), 557 P.2d 1161.

14. Oregon, Chaffin v. Chaffin

(1964), 239 Ore. 374, 397 P.2d 771.

ow

15. Rhode Isla 1, Castellucci v.

Castellucci (1963), 96 R.I. 34, 188

A.2d 467.

16. Tennessee, Campbell v.

Gruttemeyer (1968), 222 Tenn. 133, 432

S.W.2d 894.

17. Texas, Felderhoff v.

Felderhoff (1971), 473 S.W.2d 928.

18. Wyoming, Oldman v. Bartshe

(1971), 480 P.2d 99.

5 The tenor of non-syllabus

language in Signs v. Si (1952), 156

Ohio St. 566, can fairly be read to

evidence a skepticism of the rationale

supporting the rule of parental

immunity. Indeed, language from Signs

was utilized in Falco v. Pados, supra,

in support of rejection of the parental

immunity doctrine. In Signs not only

was it stated that the general rule of

the interspousal immunity did not

support parental immunity, the court

further addressed and foun

unpersuasive the fraud and collusion

underpinning for the rule. However,

the language in Signs, decided in 1952,

must be read in light of the strong

policy position respecting fraud and

collusion adopted in the other aspect

of inter-family tort litigation, i.e.,

interspousal, in 1965 in Lyons v. ~

S, 2 Ohio St.2d 243, an tr ths

ence to the parental immunity rule

in die following year in Teramano v.

Teramano, supra.

3la

6 The Supreme Court of Kansas in

Nocktonick v. Nocktonick, supra,

abrogated the doctrine of parental

immunity but retained interspousal

immunity. We view such result as

paradoxical in the same vein as Prosser

on Torts (4 Ed.), 865, fn. 75, which

describes as the “height of

inconsistency" the holdings by some

courts in permitting action by the wife

but denying it to the child.

7 Footnote 4 recognizes 28

jurisdictions have refused to adopt or,

if adopted, have abrogated in whole or

in part the parental immunity doctrine,

whereas only 18 jurisdictions follow

the parental immunity doctrine. The

former category of 28 states will

increase in number while the latter

category will correspondingly decrease

as judicial wisdom spreads. We should

not stand in line until 49 states have

abrogated the immunity doctrine before

we join the union of judicial progress

and improvement of the quality of

justice. It would be a logical and

easy short step now, basing abrogation

of the rule on the excellent rationale

of this court in Signs v. Signs (1952),

156 Ohio St. 566, where we held that a

parent in his business or vocational

capacity is not immune from a personal

tort action by his unemancipated minor

child.

32a

8 As the majority opinion

accurately observes, the opinion by

Judge Woods in Hewlett v. George

(1891), 68 Miss. 703, 711, 9 So. 885,

asserts the parental immunity rule's

purpose is to promote domestic peace

and harmony. However, no empirical

data has ever been adduced in any case

that immunity fulfills such a purpose.

Just because one Judge Woods in 1891 in

Mississippi pronounced an unproven

platitude and thereby judicially

created an immunity rule does not

justify this court or any of the }7

jurisdictions clinging desperately this

shrinking minority view in continuing

to parrot such balderdash.

Similarly, the bald averment that

immunity prevents fraud and collusion

is not uncontradicted truth. We should

recognize that fraud and collusion can

be prevented in any action by an

unemancipated child against his parent,

as did the learned jurists in Sorensen

v. Sorensen (1975), 369 Mass. 350, 365,

339 N.E.2d 907:

"The existence of collusion and

lack of cooperation is not difficult to

establish in the ordinary motor vehicle

accident case. Prompt, effective

insurance company investigtion and

requirement of prompt reports of

accidents to the registry of motor

vehicles and to the insurer quickly

establish the essential facts.

Normally, any attempt at deviation from

33a

the facts by the insured will be

speedily evident and will warrant

disclaimer by the insurance carrier.

The parent is usually represented by

counsel provided by the insurance

company. Such counsel is ever alert to

protect the interests of the insurance

company and ready to expose any

attempts at collusive and fraudulent

conduct. Any overt attempt at

collusion constitutes a criminal

offense and will be punishable as such.

"Some collusive claims may

succeed. But this does not justify the

formulation of a rule of blanket denial

of recovery for all minors. It would

be unjust to bar arbitrarily the claims

of injured minors deserving of relief

solely because some cases may involve

possible collusion between two parties."

The cogent dissent of Justice Mays

in Thomas v. Inmon (1980), 268 Ark.

221, 224-225, 594 S.W.2d 853, disposes

of both the fraud and collusion

rationalization and the parental

harmony canard as follows:

“Although a tort action by a child

against his parent may suggest family

disharmony, generally the real party in

interest is the insurance company which

provides financial protection to the

parent. Just as most tort suits are

not undertaken in the absence of a deep

pocket, few minor children would sue

their parents in the absence of

insurance. Moreover, no greater

34a

disruption of family harmony is caused

by a suit pitting a child against a

parent than a suit pitting brother

against sister or husband against wife

which is allowed. Leach v. Leach, 227

Ark, 559, 300 S.W.2d 15 (1957). As to

the consideration of fraud or

collusion, no greater danger of

collusion exists in child-parent suits

than in other suits among family

members. Although the possibility of

fraud or perjury exists to some degree

in all cases, we do not abolish a cause

of action solely because of that

danger. In short, the likelihood of

family discord or collusive suits is

not significantly enhanced by

permitting child-parent suits and

certainly does not justify abolishing

an unemancipated child's right to be

made financially whole when wrongfully

injured."

Since this Karam case involves

liability insurance held by the

decedent tortfeasor, the rationale

expressed in Streenz v. Streenz, supra,

at 88 is applicable:

"* * * Although we agree with

Hebel, supra, that ‘the existence of

ity ance does not create

liability’ where none existed before,

we think the widespread prevalence of

such insurance is a proper element to

consider. Where insurance is available

to compensate the child for his

injuries, the possiblity of disruption

of family unity and peace is

negligible. * * *"

35a

See, also, 1 Harper & James, The

Lw of Torts 649, Section 8.11; Prosser

on Torts (4 Ed.), 868 Section 122;

McCurdy, Torts Between Parent and

Child, 5 Vill. L. Rev. 521, 546;

Comment, Tort Actions Between Members

of the Family - Husband and Wife -

Parent & Child, 26 Mo. L. Rev. 152, 191.

To retain in Ohio a parental

immunity rule because it was pronounced

without thorough analysis of its

widespread application and con

by an obscure judge in Mississippi in

1891, and then spread as gospel truth

without further sound analysis in a

minority of jurisdictions, does a

disservice to the cause of justice.

Moreover, Hewlett was an action by

a minor plaintiff against her mother

for “‘willfully, illegally, and

maliciously’ securing her imprisonment

in an insane asylum in order to obtain

her property,” see Sorensen v.

Sorensen, a, at 354. Unlike the

present case, wrongful act

complained of involved the reasonable

exercise of parental authority over the

child, and ordinary parental discretion

with respect to provisions for the care

and necessities of the child. Hewlett

and its progeny, at a minimum,

be confined to the same or similar

situations. See, e.g., Horn v. Horn

(Ky. 1982), 50 U.S.L.W. 2612; Goller v.

White (1963), 20 Wis.2d 402, 122 N.W.2d

Lastly, the suggestion of this

court, see last paragraph of footnote

3, that abrogation of the parental

immunity rule “should emanate from the

General Assembly" is an abdication of

the judicial function. It is an

uncourageous passing of the judicial

buck. What the judges and courts can

create, judges and courts can

eradicate. That is simple law and

logic with its underpinning in common

sense.

37a

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO,

City of Columbus. 1982 TERM

To Wit July 19, 1982

Rashid Karam et al.,

Appellants.,

vs. No. 81-958

HEARING

Allstate Insurance Company

et al.,

Appellees.

It is ordered by the court that

rehearing in this case is denied.

I, THOMAS L. STARTZMAN, of Clerk the

Supreme Court of the State of Ohio, do

hereby certify that the foregoing entry

was correctly copied from the records

of said Court, to wit, from Journal

No. Page

IN WITNESS WHEREOF, I have

hereunto subscribed my name and

affixed the seal of the Supreme

Court this 19th day of July, 1982.

THOMAS L. STARTZMAN, Clerk

38a

a + Sas Se &

APPENDIX B

IN THE COURT OF APPEALS OF

FRANKLIN COUNTY, OHIO

Rashid Karam, Rola Karam,

and Rita Karam, Minors, By

and Through Their Father and

Next Friend, Maurice Karam,

and

Maurice Karam,

Plaintiffs-Appellants,

Ve No. 80AP-963

Allstate Insurance Company,

and

Buckeye Union Insurance Company,

and

Maurice Karam, Administrator

of the Estate of Rose Karam,

Defendants-Appellees.

DECISION

Rendered April 28, 1981

39a

WOLSKE & BLUE,

MR. WALTER J. WOLSKE, JR.,

580 South High Street,

Suite 320,

Columbus, Ohio 43215,

For Plaintiffs-Appellants.

CRABBE, BROWN, JONES, POTTS & SCHMIDT

MR. THEODORE D. SAWYER and

MR. DAVID J. RICHARDS, of Counsel,

2500 One Nationwide Plaza,

Columbus, Ohio 43215,

and

GINGHER & CHRISTENSEN,

MR. JOHN M. MAHOTA, of Counsel,

311 East Broad Street

Columbus, Ohio 43215,

For Defendants-Appellees.

REILLY, J.

This is an appeal from a judgment

of the Court of Common Pleas, Franklin

County, Ohio.

The record shows that an accident

occurred on August 14, 1978 on Dublin

Road in Franklin County, Ohio,

40a

involving vehicles operated by William

E. Chapin and Rose Karam.

Consequently, Rose Karam, her two

nieces and one nephew were killed in

the collision. Plaintiffs Rashid, Rola

and Rita Karam, children of Rose Karam,

sustained injuries from the collision.

Plaintiffs, through their father

and next friend, Maurice Karam, brought

this action to recover for injuries

sustained from the accident in which

their mother negligently collided with

another vehicle. The complaint named

as defendants, Allstate Insurance

Company, Buckeye Union Insurance

Company and Maurice Karam as the

Administrator of the Estate of Rose

Karam.

4la

The trial court by decision and

entry on May 22, 1980, dismissed the

foregoing insurance companies, citing

Chitlik v. Allstate Ins. Co. (1973), 34

Ohio App. 2d 193. Thereafter, on

November 26, 1980, the trial court also

sustained defendant's motion for

summary judgment.

Plaintiffs have now perfected this

appeal, including two assignments of

error:

"I. The trial court erred in

its finding that Familial

Immunity bars Plaintiffs' cause

of action because the doctrine

Goes not adhere under the facts

of the instant case.

II. The trial court erred in

dismissing Plaintiffs" direct

action against decedent's

liability insurers."

42a

Plaintiffs’ first assignment of

error is not well taken. The Supreme

Court wrote in Teramano v. Teramano

(1966), 6 Ohio St. 2d 117, at page 119,

concerning the family immunity doctrine:

"Numerous cases gathered in the

A.L.R. annotation (19 A.L.R. 2d

423) indicate substantial

agreement that no action lies

by the unemancipated minor

against the parent unless the

acts done by the parent are in

his vocational capacity or show

a malicious intention to injure

(rape, murder, punishment

inflicted in malo animo).”"

Furthermore, the first paragraph

of the syllabus in the Teramano, supra,

case reads as follows:

"1. A parent is immune from

suit by his unemancipated minor

child for tort unless facts of

the case are sufficient to show

abandonment of the parental

relationship. (Signs v. Signs,

156 Ohio St. 566, explained.)

43a

Finally, in Teramano, supra, the

Supreme Court delineated the exception

to the family immunity doctrine, at

pages 118-119, as follows:

"* * * That court went on to

say that in the case of

‘malicious injuries’

abandonment of the parental

relationship should be implied.

"In searching for a rationale

which can be applied in this

and other such cases and by

which tortious conduct of a

parent toward a child can be

judged as actionable or

nonactionable, we note the

reoccurrence of the phrase,

‘abandonment of the parental

relationship,’ in the most of

the well-reasoned cases. If

the parental relationship is

abandoned, the reasons for the

immunity ceases to exist. A

corollary of this rule is that,

where there exists a dual

relationship between parent and

child such as master and

servant, or carrier and

passenger, the domestic

relationship is merely

44a

=e ee

incidental and becomes so

logically irrelevant as to

prevent immunity from

attaching. See annotation, 19

A.L.R. 2d 423, Infant-Tort

Action Against Parent, at page

432.

"This was the real basis of the

judgment of this court in

Signs, A Minor v. Signs, 156

Ohio St. 566, where it was

decided that a parent in his

business or vocational capacity

is not immune from a

personal-tort action by his

unemancipated minor child."

Abandonment involves something

more than severing a relationship. It

concerns the element of choice and

intent to relinquish one's rights or

interests. There is nothing to

indicate that Rose Karam intended or

chose to abandon the relationship with

her children. She did not choose her

own demise and manifestly did not

45a

choose to abandon her children.

Nothing indicates any malicious intent

on Rose Karam's part, nor is there any

evidence of an exception to the

parent-child relationship.

Accordingly, the Teramano, supra,

decision determines this case.

Consequently, plaintiffs’ first

assignment of error is overruled.

Plaintiffs' second assignment of

error is also ne: well taken.

Insurance companies‘ contracts involve

liability only if an insured is

liable. Since there is no liability,

as indicated above, even if there was

error, it would necessarily be

non-prejudicial. Thus, plaintiffs'

second assignment of error is also

overruled.

46a

Whereupon, for the foregoing

reasons, the judgment is affirmed.

Judgment affirmed.

WHITESIDE and McCORMAC, JJ., concur.

47a

IN THE COURT OF APPEALS OF

FRANKLIN COUNTY, OHIO

Rashid Karam et al.,

Plaintiffs-Appellants,

Vv. No. 80AP-963

Allstate Insurance Company

et al.,

Defendants-Appellees.

JOURNAL ENTRY OF JUDGMENT

For the reasons stated in the

decision of this court rendered herein

on April 28, 1981, the assignments of

error are overruled, and it is the

judgment and order of this court that

the judgment of the Franklin County

Court of Common Pleas is affirmed.

48a

_—— lille lt

WHITESIDE, REILLY & McCORMAC, JJ.

By

Judge Archer E. Reilly

ec: Walter J. Wolske

Theodore D. Sawyer and

David J. Richards

John M. Mahota

49a

_ ———

APPENDIX C

COURT OF COMMON PLEAS OF FRANKLIN

COUNTY, OHIO

RASHID KARAM, et al

Plaintiffs

vs. Case No. 80CV-01-235

ALLSTATE INSURANCE COMPANY,

et al.

Defendants.

DECISION

Rendered this 6th day of November,

1980.

TYACK, J.

This cause came on to be hear?

upon oral hearing on the motion of

Defendants for summary judgment. The

matter was submitted on the pleadings

ita

ae

——

>. Ge ae |

+ ~seneee....ielibeditie, . .

ee eee ee

and upon the answers to request for

admissions filed by plaintiffs.

The Court finds that there are no

genuine issues of material fact to be

determined and defendants are entitled

to summary judgment as a matter of law.

Motion for summary judgment is

hereby SUSTAINED. Counsel for

Defendants shall prepare and file

proper Judgment Entry per court rule.

GEORGE E. TYACK, JUDGE

Appearances:

Walter J. Wolske, Jr.

Attorney for Plaintiffs

Theodore D. Sawyer

David J. Richards

Attorney at Defendant

John M. Mahota

Attorney for Co-Defendant

Sla

—-— ee

IN THE COMMON PLEAS COURT OF

FRANKLIN COUNTY, OHIO

RASHID KARAM, ET AL.,

Plaintiffs

Vv. Case No. 80CV-01-235

ALLSTATE INSURANCE JUDGE TYACK

COMPANY, ET AL.,

Defendants

ENTRY

This matter having come on for

hearing upon motion of defendant,

Maurice Karam, administrator, for

summary judgment and the court finding

no genuine issues of material fact to

be determined and that defendant is

entitled to summary judgment as a

matter of law, said motion is hereby

sustained and judgment is accordingly

52a

rendered for defendant, Maurice Karam,

administrator.

JUDGE TYACK

APPROVED:

Submitted by letter of Nov. 10,

but not approved.

WALTER J. WOLSKE, JR.

Attorney for Plaintiffs

580 South High Street

Columbus, Ohio 43215

CRABBE, BROWN, JONES, POTTS & SCHMIDT

ee es

THEODORE D. SAWYER (SAWO1)

Attorney for Defendant

One Nationwide Plaza, 2500

Columbus, Ohio 43215

53a

— te ee

APPENDIX D

28 U.S.C. Section 1257

Final judgments or decrees rendered by

the highest court of a State in which a

decision could be had, may be reviewed

by the Supreme Court as follows:

* = *

{3] By writ of certiorari .

- « where any title,

privilege or immunity is

specially set up or claimed

under the Constitution.

Ohio Constitution Article IV Section 2:

[A] supreme court shall,

until otherwise provided by

law, consist of seven

judges, who shall be known

as the chief justice and

justices. In case of the

absence or disability of the

chief justice, the judge

54a

> -

having the period of the

longest total service upon the

court shall be the acting chief

justice. If any member of the

court shall be unable, by

reason of illness, disability

or disqualification, to hear,

consider and decide a cause or

causes, the chief justice or

the acting chief justice may

direct any judge of any court

of appeals to sit with the

judges of the supreme court in

the place instead of the absent

judge. ...

U.S. Constitution Amend XIV Section 1:

No state shall ., . deprive

any person of life, liberty or

property, without due process

of law. ...

55a