Bentley v. Bentley

172 S.W.3d 375, 2005 Ky. LEXIS 285, 2005 WL 2316180
CourtKentucky Supreme Court
DecidedSeptember 22, 2005
Docket2003-SC-1051-DG
StatusPublished
Cited by5 cases

This text of 172 S.W.3d 375 (Bentley v. Bentley) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bentley v. Bentley, 172 S.W.3d 375, 2005 Ky. LEXIS 285, 2005 WL 2316180 (Ky. 2005).

Opinions

Opinion of the Court by Justice COOPER.

In Thompson v. Thompson, 264 S.W.2d 667 (Ky.1954), our predecessor court held that a parent could not maintain an action in tort against his or her unemancipated minor child for injuries arising out of the child’s negligent operation of a motor vehicle. We now conclude that we should depart from this aspect of intra-family immunity, and overrule Thompson.

Appellee, David Bentley, filed suit in the Greenup Circuit Court for damages arising out of a two-vehicle accident that occurred on September 24, 2000. Bentley was a passenger in a vehicle owned and insured by his wife, Carol Bentley, and being operated at the time by his daughter, Megan Bentley. He sued Megan in tort, and also sued the insurer, American International South Insurance Company, asserting “bad faith” refusal to settle his claim against Megan in violation of the Unfair Claims Settlement Practices Act (UCSPA). KRS 304.12-230. The insurer’s refusal to settle was specifically premised upon the holding in Thompson. The record of the Greenup Circuit Court contains no proof, by way of interrogatory, admission, or stipulation, that Megan Bentley was David Bentley’s daughter, that she was a minor, or that she was unemancipated. Nevertheless, the trial court dismissed the complaint, accurately noting that Thompson had never been overruled. The Court of Appeals reversed, holding in a “not to be published” opinion that “Thompson is no longer good law.” Bentley v. Bentley, No.2002CA-001455-MR, slip op. at 9, 2003 WL 22801134 at *4 (Ky.App. Nov.26, 2003). Of course, neither a circuit court nor the Court of Appeals has authority to overrule precedents of this Court or our predecessor court. SCR 1.040(5); SCR 1.030(8)(a); Charash v. Johnson, 43 S.W.3d 274, 277 nn.2 & 3 (Ky.App.2000). Because both parties and both lower courts have assumed that Megan Bentley is David Bentley’s unemancipated minor child, we [377]*377choose to address the issue despite the inadequacy of the record.

In Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970), our predecessor court abrogated the concept of “parental immunity” that precluded a child from suing his or her parent in tort, “except in the two following situations: (1) where the negligent act relied on for a recovery involves the reasonable exercise of parental authority over the child, and (2) where the alleged negligent act involves the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.” Id. at 923. Parental immunity first entered our jurisprudence in Harralson v. Thomas, 269 S.W.2d 276 (Ky.1954), a case rendered four months after Thompson was decided. Rigdon indicated that it was addressing the immunity created by Harralson, and did not mention Thompson at all. Rigdon, 465 S.W.2d at 922.

The principle that a parent may not prosecute a tort action against his or her unemancipated minor child is a recognized corollary to parental immunity. Mauk v. Mauk, 12 Ohio St.3d 156, 466 N.E.2d 166, 167 (1984). Such actions are far rarer than tort actions by the child against the parent — perhaps because an adult is more likely to injure a child than vice versa. However, the Restatement (Second) of Torts § 895G (1979) recommends abolition of all parent-child immunities with some exceptions, viz:

(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.

(Emphasis added.) The Comment to subsection (2) cites commonplace incidents of family life as an exception to the rale of liability:

A child thoughtlessly leaves his skates in a hallway and the parent trips over them or slides on them and falls, or a parent delays fixing a slightly broken step or calling in a carpenter to do it and the child falls as a result; these occurrences are normally regarded as commonplace incidents in family life and usually treated as accidents rather than the basis for imposing legal liability.

Rest. (2d) Torts § 895G cmt. k.1

The reporter’s notes to Section 895G state that as of 1979, seventeen jurisdictions had abolished parent-child immunity in its entirety (erroneously citing Rigdon as including Kentucky in that category), and that eight additional states have abolished the immunity if the tort arises out of the operation of a motor vehicle. Rest. (2d) Torts § 895G reporter’s notes. At least six jurisdictions have specifically held that a parent can sue his or her unemanci-pated minor child for damages arising out of the child’s negligent operation of a motor vehicle. Jagers v. Royal Indem. Co., 257 So.2d 806, 808 (La.Ct.App.1972); Ales v. Ales, 650 So.2d 482, 487 (Miss.1995); Guterman v. Guterman, 66 N.J. 69, 328 A.2d 233, 234 (1974); Price v. Price, 19 Ohio App.3d 245, 483 N.E.2d 1222, 1223-24 (1985); Silva v. Silva, 446 A.2d 1013, 1017 (R.I.1982); Erie Indem. Co. v. Kerns, 179 W.Va. 305, 367 S.E.2d 774, 776 (1988). Such holdings are consistent with the public policy behind our Motor Vehicle Reparations Act (MVRA), KRS 304.39-010, et seq., and our holdings in Bishop v. Allstate [378]*378Insurance Co., 623 S.W.2d 865, 866 (Ky. 1981), and Lewis v. West American Insurance Co., 927 S.W.2d 829, 835 (Ky.1996), that household exclusion clauses in policies of automobile liability insurance are contrary to that public policy.

The concept of parental immunity did not exist in the English common law and appears to have been fashioned out of whole cloth in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). Rest. (2d) Torts § 895G cmt. b. The justifications usually advanced for parent-child immunity are:

(1) Public interest in maintaining family harmony and tranquility.
(2) Maintenance of parental authority and discipline.
(3) Prevention of fraud and collusion.
(4) Preservation of equal distribution of the family exchequer.

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Bentley v. Bentley
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Bluebook (online)
172 S.W.3d 375, 2005 Ky. LEXIS 285, 2005 WL 2316180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bentley-v-bentley-ky-2005.