# Appendix — Karam v. Allstate Insurance Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1006%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1070 ## Text ee ee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1006%3A2. Public record. Not legal advice.