The parental immunity doctrine: is insurer bad faith an exception or should the doctrine be abolished?

• Author: Heath, Robert N., Jr.
• Position: Florida

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...