The Parental Immunity Doctrine: Is Insurer Bad Faith an Exception or Should the Doctrine Be Abolished?
A young boy visiting his father in Florida spent an enjoyable evening fishing off one of the area’s many fishing bridges. Around 11 p.m., the father and son loaded their gear in a car owned by the father’s wife and headed for home. Along the way, both were seriously injured when a car turned in front of them, causing a collision that propelled the little boy into the dashboard and resulted in a traumatic brain injury. Witnesses to the crash confirmed that, although the turning car violated the right of way, the father was speeding and his headlights were not on, thus, contributing to the accident. The child’s mother brought a claim against both the father and the father’s wife for the son’s injuries and offered to resolve the claim for the meager policy limits of the stepmother’s liability insurance policy. Despite overwhelming evidence, the insurance company refused to settle the claim and, after years of litigation and a verdict substantially in excess of the policy limits, the insurance company was later found to be in bad faith. Unfortunately, in Florida the child may never realize the full measure of his damages despite the insurer’s bad faith due to the doctrine of parental immunity.
Origin of the Doctrine
Unlike the doctrine of interspousal immunity, which originated in the common law of England, parental immunity has been traced to the 1891 decision of the Mississippi Supreme Court in Hewellette v. George, 9 So. 885 (1891). In Hewellette, the court refused to permit a minor daughter, although married and separated from her husband, to bring suit against her mother for injuries allegedly caused by the mother. The court reasoned that “the peace of society, and of the families composing society” was best served by a public policy that prohibited a child from bringing an action against a parent for injuries.1
In Florida, the doctrine of parental immunity was first established in 1970 in the case of Orefice v. Albert, 237 So. 2d 142 (Fla. 1970). Previously, the Florida Supreme Court had held that, while public policy forbade tort suits between spouses, actions by one spouse against a third party were not barred, even if the injuries arose from the negligence of the other spouse.2 In Orefice, the mother of a minor killed in an airplane crash brought suit for herself individually and as parent of the child against the pilot, the child’s father and co-owner of the aircraft, and the other co-owner, Albert. The court held that the public policy of protecting family members from suits by other family members did not shield other parties who were otherwise liable. However, with regard to the mother’s individual action, the court made it clear: Suits between spouses or between children and their parents would not be permitted. The purpose of this policy, the court reasoned, was to “protect family harmony and resources.”3 The issue seemed closed.
Cracks in the Armor: Ard and Waite
In 1982, the Florida Supreme Court again revisited the issue of parental immunity in Ard v. Ard, 414 So. 2d 1066 (Fla. 1982). In that case, Mrs. Ard faced a claim brought by her infant son who was seriously injured when she negligently uploaded him from a motor vehicle, placing him in a perilous position where he was run over by another vehicle. The court noted that protecting the family unit was a significant public policy behind parental immunity, as was reducing the available assets of the family through a lawsuit which would reduce the amount available for support and education of the family and protection of the family as a whole. The court, however, was mindful of the growing trend toward abrogating or limiting parental immunity.4 It also appreciated that the development and widespread use of liability insurance supplanted the need to immunize parents from liability for injuries that they cause to their children. The court cited approvingly from Sorensen v. Sorensen, 339 N.E.2d 907 (1975), in which the Supreme Judicial Court of Massachusetts stated: “[W]hen insurance is involved, the action between parent and child is not truly adversary. . . far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal, the easing of the family financial difficulties stemming from the child’s injuries….” The court further noted that, in the absence of parental immunity, Mrs. Ard would be liable for all of the injuries she caused, and the effect of the immunity was to bar an otherwise valid action brought by her son against her. The court recognized that there had been a recent trend toward abrogating or limiting parental immunity and that, rather than depleting the family assets, the family would be protected when recovery is allowed from an insurance policy. The court, thus, held that, “because of the changes in the conditions which fostered its underlying policies,” parental immunity was waived to the extent of available insurance coverage, but not otherwise.
Following similar reasoning, the Florida Supreme Court also recognized in 1988 that the doctrine of interspousal immunity was no longer applicable when the public policy reasons for applying it no longer existed.5 Later, in Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), the court noted that changing conditions and a growing trend of 32 states that had abrogated the doctrine left Florida in a “shrinking minority” that no longer justified adherence to the doctrine.
Recognizing that parental immunity should not extend to the negligent operation of an automobile by a parent, courts in other states have held that, under such circumstances, a child can bring an action against a parent.6 In fact, at least 24 states now have either abrogated the doctrine of parental immunity altogether or have held that, as a general rule, a parent may be liable to a child for injuries caused by the parent’s negligence.7
In the factual scenario described at the beginning of this article, the question arises whether the owner of the vehicle, the child’s stepmother, would be entitled to the same immunity as the negligent parent operating the vehicle. No Florida case has ever extended the doctrine of parental immunity to a stepparent. However, there are circumstances where Florida law recognizes a distinction between a parent and a stepparent, with a stepparent having fewer legal rights. For example, the Florida Probate Code’s definition of “parent” specifically excludes a stepparent.8 Chapter 934 relating to children and families in need of state services excludes a stepparent from the definition of “relative.”9 Florida courts also have recognized a distinction between a stepparent and a natural or adoptive parent.10 Courts in other jurisdictions have not extended parent-child tort immunity to stepparents and grandparents, even if the doctrine remained viable as to the natural parent.11 The courts recognizing a stepparent’s immunity appear to limit the immunity provided by the doctrine to situations in which the particular facts indicate that the stepparent stood in loco parentis to the injured child.12
Is Insurer Bad Faith Tantamount to “Available Insurance Coverage?”
In Florida, an insurance carrier owes a duty of good faith to its insured and must investigate the facts, fairly consider reasonable settlement offers, and settle if possible where a reasonably prudent person would do so when faced with the prospect of paying the total recovery.13 An insurance company acts in bad faith in failing to settle a claim against its insured within the policy limits when, under all of the circumstances, it could and should have done so, had it acted fairly and honestly toward the insured and with due regard for the insured’s interests.14 An insurance company that acts in bad faith is liable for any judgment entered against its insured, even if the judgment exceeds the policy limits.15
The stated purpose of the parental immunity doctrine is to preserve family harmony and to protect family resources. The Florida Supreme Court has already recognized in Ard that changing conditions and the increasing availability of liability insurance coverage warranted waiver of immunity, at least to the limits of available insurance coverage. The doctrine should also be waived when the insurance company for a parent has failed in its duty to exercise good faith. If the insurance company found to be in bad faith remains responsible to the full extent of a child’s claim for damages, the public policy purpose of the parental immunity doctrine would be served. There would be no possibility that the child’s lawsuit would deplete the family’s resources or promote disharmony to the family. To the contrary, as in Ard, the action would not be truly adversary and family harmony would be promoted because the child’s significant damages would be compensated by the parent’s insurance company rather than by the family’s resources.
Florida had recognized that an insurance carrier’s liability in excess of its policy limits may depend upon the determination of the issue of bad faith. In Allstate v. Sutton, 707 So. 2d 760 (Fla. 2d DCA 1998), Sutton sued her insurance carrier, Allstate, which insured her for uninsured motorist benefits of $100,000. She made a pretrial demand for judgment of the policy limits, which was rejected by Allstate. The jury awarded her over $392,000 in damages, well above the required 125 percent of the demand for judgment that Sutton had made. Although the trial court limited the final judgment to the policy limits of $100,000 pending the outcome of the bad faith suit subsequently filed, it nevertheless awarded Sutton attorneys’ fees and costs in excess of the policy limits. The district court held that payment of the attorneys’ fees would be contingent upon a judicial determination of bad faith. In essence, it granted to Sutton the right to recover attorneys’ fees to which she would not be entitled but for a determination of bad faith to be made later. Similarly, a child’s right to recover damages in excess of the policy limits against a parent would depend solely upon a determination that the parent’s insurance company acted in bad faith.
Like the doctrine of interspousal immunity, it is time for Florida to recognize that the public policy reasons for applying parental immunity no longer exist, particularly where a determination of bad faith would require an insurance carrier to bear full responsibility for the damages caused by, and otherwise borne by, a negligent parent. Florida should join the growing trend of jurisdictions that have either abrogated the doctrine completely or make an exception in the case of an insurance company that acts in bad faith. To continue to cling to this outmoded doctrine under such circumstances would discourage insurance carriers from discharging their duty of good faith claims handling and, in fact, reward them when they exercise bad faith.
1 Ironically, however, the court noted that an exception might be made if, by the daughter’s marriage, the “relation of parent and child had been finally dissolved, insofar as that relationship imposed the duty upon the parent to protect and care for and control, and for the child to aid and comfort and obey….” Even then, it seemed that the court recognized exceptions to family immunity when the circumstances of the particular case so warranted.
2 May v. Palm Beach Chemical Co., 77 So. 2d 468 (Fla. 1955); Ward v. Baskin, 94 So. 2d 859 (Fla. 1957).
3 The court cited May v. Palm Beach Chemical Co., 77 So. 2d 468 (Fla. 1955), approvingly, noting that, in that case, the plaintiff was injured by her negligent husband who was driving his employer’s car with permission. The court refused to impute the negligence of the husband to the plaintiff and, while barring her action against her husband on the basis of the family relationship, permitted the action by the wife against the employer because of the dangerous instrumentality doctrine.
4 “While many states still recognize this immunity, [footnote omitted] the changes in contemporary conditions have caused numerous jurisdictions to restrict this doctrine where the policies behind it have lost their viability…a majority of the decisions deal with the negligent operation of a motor vehicle by one of the parents.” The court noted 24 jurisdictions that had either abolished or limited the application of family immunity.
5 Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988).
6 Cates v. Cates, 619 N.E.2d 715 (Ill. 1993) (negligent operation of automobile by parent is not conduct inherent to parent-child relationship since such conduct does not represent parent’s decisionmaking in disciplining, supervising, or caring for child); Clark v. Estate of Rice ex rel. Rice, 653 N.W. 2d 166 (Iowa 2002) (negligent operation of vehicle by parent is not conduct inherent to parent-child relationship and does not absolve parent from tort liability for such negligence); Lee v. Mowett Sales Co., 342 S.E.2d 882 (N.C. 1986) (though parental immunity still applicable in the state, exception made for child’s injuries resulting from parent’s operation of motor vehicle); Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1989) (unemancipated minor could bring action for injuries resulting from father’s alleged negligent operation of motor vehicle since such operation did not involve “reasonable exercise of parental authority or exercise of parental discretion”); Sias ex rel Mabry v. Wal-Mart Stores, Inc., 137 F. Supp. 2d 699 (S.D. W. Va. 2001); Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992) (failure to buckle minor passenger’s seat belt cannot be considered act of parental authority or discretion and is, therefore, exception to parental immunity).
7 Annot., 6 A.L.R. 4th 1066.
8 Fla. Stat. §731.201(26).
9 Fla. Stat. §984.03(45).
10 O’Dell v. O’Dell, 629 So. 2d 891 (Fla. 2d D.C.A. 1993) (court lacked authority to order visitation between stepfather and former stepson). See also Meeks v. Garner, 598 So. 2d 261 (Fla. 1st D.C.A. 1992) (Chapter 61 makes no provision for visitation between unrelated parties, such as between a child and one who is not a parent, grandparent, or great-grandparent) (emphasis added); Hippen v. Hippen, 491 So. 2d 1304 (Fla. 1st D.C.A. 1986) (it is well-settled that a person has no legal duty to provide support for a minor child who is neither his or her natural or adopted child) (emphasis added); K.A.S. v. R.E.T., 914 So. 2d 1056 (“[A] stepparent. . . does not acquire all of the rights or assume all of the obligations of a natural parent”); Tubbs v. Teeple, 388 So. 2d 239 (Fla. 2d D.C.A. 1980) (“[O]bviously, a stepdaughter is not a descendent of her stepparent, and, therefore, the statute cannot save the gift to her from lapsing”).
11 Warren v. Warren, 650 A.2d 252 (Md. 1994); Gulledge v. Gulledge, 367 N.E.2d 429 (Ill. 1977) (parental immunity does not include those having temporary control or custody of a minor, such as grandparents or others).
12 See annotation at 6 A.L.R. 4th 1066 at §4.
13 Boston Old Colony Ins. Co. v. Guiterrez, 386 So. 2d 783 (Fla. 1980).
14 Fla. Std. Jury Instr. (Civ.) MI 3.1.
15 Thompson Commercial Union Ins. Co. of New York, 250 So. 2d 259 (Fla. 1971). For first-party liability of insurance companies. See Fla. Stat. §624.155.
Robert N. Heath, Jr., is certified by The Florida Bar as a specialist in civil trial law and by the National Board of Trial Advocacy as a civil trial advocate. He is a partner with McDonald, Fleming, Moorhead, Green, Smith, Blankenship, Heath & de Kozan, LLP, in Pensacola and practices in the areas of personal injury/wrongful death and insurance law. He received a B.A. from Auburn University and a J.D. from Florida State University.
This column is submitted on behalf of the Trial Lawyers Section, Robert Earl Mansbach, Jr., chair, and D. Matthew Allen, editor.