Wednesday, June 3, 2009

Suing the Kid for Crashing the Car Into the Garage

Can an unemancipated child be held "legally responsible" to a parent for crashing mom's car into the garage?  A insurer client called and asked me that question yesterday afternoon. 

In New York, the answer is yes.  In 1969, in the case of Gelbman v. Gelbman, the New York Court of Appeals abolished the intrafamily immunity doctrine and permitted a mother to sue her unemancipated minor son for injuries she had sustained in an auto accident while riding as a passenger in a car her son was driving.  Gelbman remains “good law” in New York.

In revoking the rule against child-parent suits for nonwillful torts, first established by the Court in its 1928 decision in Sorentino v. Sorentino, Judge Burke writing for the Court reasoned:
It seems obvious that family unity can only be preserved in this case by permitting the present action.  As one commentator noted, "If the action of the parent against the child is viewed as a manifestation of the parent's right to discipline and punish his child" (Note, 33 St. John's L. Rev. 310, 319) then such an action would be a proper exercise of parental authority, which authority should not be impaired by the doctrine of intrafamily tort immunity.
I see.  As both a parent and defense attorney, I can relate to the "suits as punishment" concept, but what's the consequence for a kid's default?  Grounding?  And if the parent recovers money damages, does the kid never see his allowance again?  If I had only known this when our then 17-year-old, now 21-year-old, daughter boldly declared "watch me!" after her then 15-year-old backseat driving brother excitedly uttered "you're going to hit the garage!" as his sister swung mom's Buick into -- in the fullest and most physical sense of the word -- our garage.  There's a three-year SOL on property damage negligence claims in New York.  You can do the math.  No tolling for a parent's claim against the kid, only the other way around.  Shiznits. 

So aside from the involuntary-servitude-until-majority-if-a-money-judgment-is-obtained ramifications of a parent successfully suing her child, what's in it for the parent?  Is there insurance coverage for the kid crashing the car into the garage?  That was the real question underlying the question my insurer client first asked me yesterday.

The answer to that question is probably yes, as well, believe it or not.  There would be coverage for damage to the garage but not its contents under a homeowner's policy that affords all-risk coverage for the dwelling, such as the HO-3 form, (although there would be no liability coverage for the child under such a policy by reason of its motor vehicle exclusion [see page 16 of 22 of the HO 00 03 10 00 form]).  And, in answer to my client's question of yesterday afternoon, there would also be liability coverage favoring the child under a personal auto policy that provides coverage for "damages for ... 'property damage' for which any 'insured' becomes legally responsible because of an auto accident."  Damaged contents could ostensibly find coverage under the family's personal auto policy.

Parents -- kids not behaving?   Not cleaning their room and damaging the carpeting and walls?  Sue 'em.  Not in Family Court.  Supreme Court.   That'll get their attention.  And your insurers'.  But maybe not the attention you want.  As in the non-renewal kind of attention.


Zuppa said...

During my 3 month stint as a personal injury attorney they gave me a case where the kid was suing his little league team. The moron stepped up to the batter's box as another kid was swinging the bat at pitches. He got nailed. His father was the coach. I was supposed to "coach" the kid into saying his father was the moron for not warning them. The kid -- he was 12 -- had some honor and wanted none of it. At the depo the kid testified to the truth as I told him to. The father as it turned out had constantly warned the team to stay away from the box unless they were hitting. Case dismissed. This led to a fight with the partners and my ouster.

Layers of slime immediately left my body as I walked out the door. They quickly returned when I began defending insurance companies.

Roy A. Mura said...

I think there's an analogy here, but I'll take the intentional walk instead and let a teammate bat cleanup.

Readers -- understand that some who regularly comment here have strong, even polar, opinions. The implication that all who defend insurance companies are slimy is, of course, a prime example of such a polar, and some might say outrageous or even reckless, opinion. My allowing a comment to post does not necessarily mean that I agree or disagree with it. Generally all comments without personal vitriol or animus make it live. And I may not always respond. But you may, if you like.

I have been defending insurance companies and their insureds for over 20 years. In all that time, the one company whose defense instructions I refused to follow for ethical reasons I no longer represent. It pulled all its files. And I never stayed working for an employer or kept representing clients that were slimy or made me feel that way. But that's just me.

zuppa said...

Roy my comment gave equal time. At one point I was highly polarized into believing that everyone who sued should have sucked it up. Defend the City against personal injury cases for some years and it's easy to see why I would feel that way.

During trials I worked very well with MOST insurance company defense attorneys. We would agree to concentrate our fire on the plaintiff and be open about what we would have to say about the other Defendant i.e. in a construction accident case I would tell the lawyer for the contractor: "I am going to have to make it clear that we only owned the property and had nothing to do with the construction."

I have been rear ended three times including once where the guy's car blew up. I never sued or even sought treatment.

I worked with insurance companies plural but far from all insurance companies. I was thoroughly slimed in that experience.

I am in favor of the British system wherein loser pays all of the winning parties legal fees. This would encourage settlements, discourage frivolous suits and unemploy many attorneys.

Tell me Roy with all honesty -- are you in favor of the above.