1314 Texas St. Suite 400 
Houston, TX 77002
Tel (713) 236-1818
Fax (281) 768-2439
HomeFirm OverviewFamily LawFirm NewsCollaborative LawCriminal LawSecurities DisputesAttorney ProfilesNewsletterDirectionsContact Us
NEWSLETTER
Family Law April 17, 2014
 
Family Law
Business
 

Parents May Recover for Loss of a Child's Consortium

Husbands and wives have traditionally been entitled to recover damages for "loss of consortium."  In cases where a spouse is ...(more)

 

"Excess Alimony" Tax Rules for Divorce Payments

Most divorces involve a division of property between the spouses. If there are children from the marriage, the parent not ...(more)

 

Loss of Consortium Damages When a Child is Severely Injured

Although "loss of consortium" damages are traditionally associated with spousal relationships, modern cases have extended the right to recover them ...(more)

 

Tax Treatment of Divorce-Related Payments

Prior to filing for divorce, various federal tax considerations should be reviewed due to their potentially profound implications. Among the ...(more)

 

Family Law In The News

Restraining orders are vital for abuse victims

Leave child support legislation alone

How To Cope With Your Husband's Financial Threats During Divorce

Dad files $130M lawsuit after son in Utah is given up for adoption

Deschutes County piloting program for family law disputes

Limitations on Intra-Family Lawsuits


Over the years, intra-family immunity from lawsuits against other family members developed; "parental immunity" and "spousal immunity." Some have suggested that these immunities were part of a body of rules that historically limited tort recoveries in general. At one time, there was even a certain stigma to bringing a lawsuit against another family member for damages.
 
This radically changed in the latter half of the 20th Century, when courts (and laws) began to expand liabilities and recoveries for a number of reasons. Not all states recognized the doctrines of parental and spousal immunity from suit, but most states did. Recently, however, more states have abandoned or created exceptions to these doctrines.
 
Spousal Immunity from Suits
"Common law" is generally a body of legal principles derived from traditions, laws, and lawsuit results. Much of common law is derived from English legal history and traditions, but certain U.S. states passed laws specifically incorporating English common law principles into their own state laws. The doctrine of spousal immunity existed at common law. It prevented one spouse from suing another for personal injury.
 
The doctrine evolved from the perception that a married couple is a unit, and therefore it made no sense for a legal unit to sue itself. Other rationales included the preservation and protection of the family, as well as the assets and integrity of the family.
 
Spousal immunity was accepted and enforced by most U.S. states at one time. It has now been completely abolished by the majority of states. Even in states that still recognize and apply the doctrine, exceptions have been developed or enacted into law. One example of an exception is that a spouse may not be barred from suing for damages arising out of intentional physical and/or sexual abuse by the other spouse. Another common exception is a right to sue and recover from a spouse for negligence arising out of a car accident.
 
Parental Immunity from Doctrine
The doctrine of parental immunity evidently originated in an 1891 Mississippi Supreme Court case; the court refused to allow a daughter to sue her mother for confining her to an insane asylum. Other state courts adopted and further developed the doctrine that parents cannot be sued by their children for parental actions against them while they were minors (in some states, the doctrine also prevents suit by parents against minor children).
 
A variety of public policy reasons were advanced for granting parental immunity, including:
  • Preservation of domestic harmony and tranquility
  • Avoiding depletion of family assets for a member at the expense of the rest of the family
  • The danger of fraud and collusion between parent and child where insurance is involved
  • Avoiding interference with parental care, discipline, and control
  • The possibility of inheritance by the parent of the amount recovered
Changes in the Doctrine
By the last half of the 20th Century, however, the parental immunity doctrine also was being questioned and, in some jurisdictions, completely abolished. In many states, exceptions to the doctrine were enacted or judicially developed, such as that it does not apply in the following circumstances:
  • Where there is physical or sexual abuse by the parent and/or failure to protect the child by the other parent. In some states it must be intentional abuse ("willful and wanton"), while in other states even negligent abuse claims are allowed. One rationale for this exception is that where there has been child abuse, there can be little "domestic harmony" and "family unity" left to preserve.
  • Cases where a child is injured in an automobile accident through the negligence or fault of the parent. The courts and legislatures allowed this exception chiefly because of the increase in liability insurance. The family's resources are no longer at risk; in effect, the child is suing the insurance company of the parent. The exception is partly based on the existence of the insurance to satisfy the judgment.
  • Where the child would not be suing the parent in his or her capacity as a parent. For example, a father operates a bus company and his daughter is injured while riding the bus. The daughter would not be suing the parent for conduct arising out of exercise of parental duties, but rather for conduct arising out of the parent's business. A similar exception applies for parents sued by employees who happen to be their children.
  • "Emancipated" children may usually sue for negligence and injury, even if arising out of actions otherwise considered parenting. The definition of emancipation varies depending on the jurisdiction, but usually is a combination of factors such as attaining a certain age and/or not living at home.
In many jurisdictions, parental immunity remains viable outside of exceptions adopted (i.e., when exercising parental supervision and discipline rights). The doctrine may also extend to protect step and adoptive parents. Those who function "in loco parentis," in place of parents in supervisory roles (such as teachers) may also be covered by the doctrine and may therefore be immune from a lawsuit.
 
Insurance and "Household Exclusion" Clauses
Courts have found a variety of ways to justify abolishing or creating exceptions to parental and spousal immunity. Courts were often unconvinced of any special risk of collusion among family members in making claims. Insurance companies were not as confident and many responded by including "household exclusion" clauses in auto policies. Such clauses can preclude coverage for bodily injury to the insured or any member of the insured's family residing in the household.

Household exclusion clauses been widely criticized by the courts and others. As a result some states prohibit such clauses, while other states allow enforcement only for amounts that exceed a statutory minimum recovery.

© 2013 NextClient.com, Inc.  All rights reserved.