*1 CO., Corpora- TRANSAMERICA INSURANCE Foreign ROYLE, Appellant v. WILLIAM D. tion, Plaintiff and Kay Mary Haines, Person; Conservator a Protected Byron Joyce D. Haines, Haines Wilson Defendants Respondents. No. 82-187.
Submitted Nov.
1982.
Decided Jan.
Tim D. argued, Billings, for amicus curiae. opinion MR. JUSTICE HARRISON delivered the Court. by way of
This case comes from the Federal District Court 1 of the rules of this Court. pursuant certification to Rule to defend or company’s obligation At issue is an insurance being by are sued their provide coverage parents for who daughter. following two issues:
Judge Russell Smith has certified in a auto insur- policy 1. “Is the ‘household exclusion’ [of ance], Safety Respon- not under the Motor Vehicle certified sibility valid?” in brought against
2. “Is a immune from action tort him by emancipation?” his children under the 1980, Mary Kay injured Haines was
On November in which her passenger She was a a car auto accident. Mary Kay is injuries, mother As a result of her driving. was by Mary Kay’s fa- quadriplegic. now a The car was owned Haines, by ther, was insured Tran- Byron Reverend con- The insurance Company. samerica Insurance exclusion clause” which excludes tained a “household by who is related “bodily any person for to coverage blood, insured], person if that adoption marriage, [the household at the time loss.” resides [the insured’s] Mary Kay, an action Royle, as conservator for filed Mr. County re- in Lake against the Haines State Court demanded that Transamerica damages. cover The Haines Transamerica provide coverage. assume their defense Court claim- in Federal District refused and filed an action insurance contract. The it had no under the obligation in state court declaratory judgment parents sought then asking be the “household exclusion clause” declared invalid. That action Court was removed to Federal and con- 6, 1982, May solidated with the Transamerica action. On Judge Smith Russell certified the two issues to this Court. plaintiff’s
In view the issue boils to whether or down 61-6-301(1), MCA, not prohibits family section exclusion pertinent clause an automobile part, “Every the above cited reads: owner a motor ve- . loss continuously hicle. .shall provide insurance resulting liability imposed by law for bodily injury or from any person. . death damage property .” added.) (Emphasis argues simply
Plaintiff statute does void the requires clause because the statute coverage “liability words, In other imposed law.” recognizes parental Montana suit from children Mr. liable; then Haines Mrs. cannot since there would “liability imposed by not be law” the *3 family exclusion clause Although valid. not stated by plaintiff, it follows question from their view that the first to be by this is parent-child immunity decided Court the question. agree. We Our decision on issue number two will control our words, decision on issue number one. In other we recognize parental immunity, then the exclusion clause valid; is versa, vice if parent-child immunity does not exist, then the exclusion clause must be invalid virtue of 61-6-301(1), later, section MCA. As is we find discussed that a child maintain an action his negligence arising out of motor of a vehicle. Thus, is reaching exclusion clause invalid. Before immunity question, dispel concerning must confusion is- sue number one. 1979, required
Prior to
certain
only
persons
Montana law
law,
security.
demonstrate
and maintain financial
That
books,
which is
still
called the Motor Vehicle
(Sections
Safety
61-6-101,
Responsibility
seq.) Only
Act.
et
those who
license
to a con-
had
driver’s
revoked due
vehicle laws
viction or forfeiture of bail of certain motor
i.e.,
security,
obtain
required
were
to demonstrate financial
61-6-131(1)
liability
and 61-
policy.
insurance
See sections
6-132(1)(a),
Thus,
required
were
MCA.
“bad drivers”
insurance,
carry liability
liability
of the insurer
61-6-103(6)(a),
policies
under those
was “absolute.” Section
words,
MCA. In other
such a
could not contain ex-
certify that
company
clusions. The insurance
would then
61-6-133,
driver,”
Only
MCA.
had insured the “bad
driving privileges.
regain
then could the bad driver
Court,
Act,
Safety Responsibility
This
interpreting
required
ordinary policies,
policies
held that
or those
Boldt v. State
under
could contain exclusions.
Northern
33;
Farm Mutual
(1968),
P.2d
151 Mont.
Exchange
Company
Assurance
v. Truck Insurance
Specifically, ordinary policies
151 Mont.
not contain drivers) contain (policies good could under Act exclusions.
However, liability mandated insur- 1979 the required certify to the Every ance. vehicle owner is now county he an automobile possesses treasurer “in in- appears insurance It from the briefs case, Policy was ‘certified’ subject stant having proof owner of the vehicle [the Haines] bodily injury complied requiring the law insurance for with ” Thus, policy was certified by ‘any person.’ *4 liability insurance but requiring mandatory under the law Responsi- Safety Vehicle was not certified under the Motor Safety under the bility Act. Had the been certified Assurance Boldt Northern Responsibility the exclusion is the result would be that control and invalid.
177 When issue, Smith was Judge saying framed he this 1 case does not involve a under Part certification 61, Chapter 6, MCA; Safety of Title Act. Responsibility Instead, this case arises Part 3 of same under title and chapter, mandatory liability protection. the law requiring parts The two are independent. 61-6-136, MCA,
Section precludes any relationship be- part: tween the parts. two That section states in part “[t]his apply policies shall not be held to or affect to of automobile insurance against which now hereafter required by any other law this state. . .” Other to part part exists show that 1 independent. 3 are See Queen (1981), State Farm v. St.Rep. 7 See Insurance, (1980). Am.Jur.2d Automobile Section conclusion, In part 1 title chapter 6 and the cases Boldt and Northern Assurance are controlling to issue. specifically, More on statutory restrictions policies ap contained section 61-6-103 do not ply policies to purchased fulfill requirements of Part 3, Mandatory Liability Protection.
The effect of the language Mandatory Insurance Law requires liability policy protect against bodily property “any person.” damage provid- so ing, has expressly outlawed the “household exclusion.”
In considering presented, issue whether or not a child can sue parent, her we have reviewed the vast writings by courts, amount of done the subject writers and others and find that further discussion would serve no purpose. useful impression issue one of first jurisdiction do not believe our should be deter case support mined the number of rule authorities which one other, anymore jury than resolve issues should according appear to the number witnesses on one who side or the other.
A comprehensive giving annotation the historic back- “Liability title ground of the doctrine is available under the *5 178 Child Caused Unemancipated Injury
of Parent for in A.L.R.4th 1066. Cases” 6 Negligence Parent’s —Modern is a creature the doctrine agree The cases cited Torts, 122 Prosser, Sect. Law of jurisprudence. American 1971) think that (4th is no reason to that there suggests Ed. torts personal actions for permit English law would child rights between disputes involving property as well as in Canada there are decisions parent. He notes that Pros- Reading both such actions. permitting and Scotland Torts, 2, 8.11 James, Vol. Sect. ser, Law of Harper no founda- (1956), doctrine has concurrence is that English tion in law. is a created immunity judicially
The doctrine of
Mississippi,
the State of
of a case from
arising
doctrine
out
The
George
(1891), Miss.
an action insur- liability automobile prevalence accident case is the in- of automobile the existence “While courts concede ance. existed, none before liability where cannot create surance
179
prevalence
of liability insurance has been held to be a
proper factor to consider in determining
applicability
Nocktonick,
immunity.”
Probably the most persuasive argument against abrogation parent-child possibility is the of fraud and col- Unscrupulous lusion. may attempt families un- recover justified awards from companies. While we recog- nize this possibility, we do not believe it denial of justifies meritorious claims. We agree Supreme with the Court of Kansas which said: possibility of collusion exists to a certain extent in
“[t]he any Every case. day we depend juries and trial judges sift evidence in order to determine the arrive facts and proper Experience verdicts. has shown that the courts are quite adequate for In litigation parent this task. between child, judges juries naturally be mindful of relationship and would be even more on alert for improper conduct.” 611 P.2d at
We have been asked to decide which rule best serves the in justice rule, needs of this state. In setting Montana’s we recognize must that the more recent rejecting pa- decisions rental immunity are indicative of a dis- “growing judicial taste for a rule of sweep disqualified law which one v. injured minors.” Gibson Gibson entire class of Cal.Rptr. 288, Cal.3d 479 P.2d 650. We believe authorities which favor of the abrogation immunity doctrine state the proper approach light modern conception good public conditions and of what is policy. We why enjoy see no reason children should not redress protection legal and the same right same Due fact that enjoy. done them as others to the wrongs impression is a in Montana the fact case of we decisions, our task is made by previous are not encumbered qualify easier have had the rule in than other states who unemancipated that an mi- justice. search of rule,” may parent nor not sue a in tort is a “man-made duty judiciary examining it is of the it to make such requires rule when the has chosen justice to act.
Our issues to us holding limited to the certified immune Court: “Is a from action tort Federal age him brought against by his children under eman- cipation?” certified While issue to us federal tort,” parent. holding a . .in our is limited to court asks “Is parent by actions child under brought motor emancipation injured of a vehicle. To such an not undermine au- allow action does discipline, to substitute thority ju- nor does threaten care and dicial discretion for discretion rear- recognize children. must that there of minor We exercises of discretion and which would Here, special protection merely in a court law. deserve enforcement, liability in an any barrier to the au- remove *7 by unemancipated an minor brought tomobile accident case with cases involv- against parent. When confronted other we will that time deter- immunity, claimed at extent should be privilege mine to what the doctrine recognized. addition, we that hold household due failure to “honor the reasonable
clause is invalid to its Keeton, See expectations” policy. of the of purchaser Provisions, Policy with Rights Insurance Variance (1970). Keeton sets Law Rev. Professor Harvard forth this as follows: applicants expectations objectively
“The reasonable insurance the terms of con- regarding intended beneficiaries will of the though painstaking study tracts be honored even provisions those expectations.” would have negated This policy is adhesion that this justifies contract approach. Court’s of the consideration consumer We hold that a is not from suit brought immune age emancipation involving his child under cases negligence operation a motor vehicle. Consequently, must hold we that a exclusion clause 61-6-301(1), is void and unenforceable because MCA, requires carry motorists to insurance re- loss sulting imposed from law person. any
MR. CHIEF JUSTICE HASWELL JUSTICES DALY, WEBER, SHEEHY and THE HONORABLE LANGEN, JUDGE*, LEONARD H. DISTRICT concur. SHEA, MR. JUSTICE specially concurring: I join majority on the issue of “household exclu- sion” go I another how- step, ever, on question immunity de- simply clare that this Court does not the doctrine recognize it to be recognized, it is a for the question legislature, for the courts.
The majority immunity confines the abolition to “actions brought against parent by a child under the emancipation injured in of a motor ve- But, hicle.” as now long recog- Court has refused to doctrine, possibly nize this we should not decide than has recognize it another context that which presented If parental recog- been here. is to be form, me completely, any nized limited it seems to proper place is the to determine cir- recog- cumstances which should or should not be so public policy questions nized. These are better left to the legislature; ill-equipped we are to undertake that task.
*Sitting for MR. JUSTICE MORRISON.