Sussman, Karen L.

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Recent Developments: Interspousal Tort Immunity

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University of Baltimore Law ForumVolume 14Number 1 Fall, 1983 Article 21983Recent Developments: Interspousal Tort ImmunityKaren L. SussmanFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Legal Ethics and Professional Responsibility CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationSussman, Karen L. (1983) "Recent Developments: Interspousal Tort Immunity," University of Baltimore Law Forum: Vol. 14 : No. 1 ,Article 2.Available at: http://scholarworks.law.ubalt.edu/lf/vol14/iss1/2Recent Development:Interspousal Tort ImmunityKaren L. SussmanIn Boblitz v. Boblitz, 296 Md. 242, 462A.2d 506 (1983), the Court of Appeals ofMaryland abrogated the doctrine of in-terspousal tort immunity. This doctrineprohibited a person from suing his or herspouse in any tort action.In Boblitz, the wife brought a tort actionagainst her husband for injuries she sus-tained in a motor vehicle accident. Shealleged negligence against her husbandin his operation of the motor vehicle. Thehusband filed a motion for summary judg-ment, relying on a Maryland case, Hud-son v. Hudson, 226 Md. 521, 174 A.2d339 (1961), in which the interspousal tortimmunity rule was upheld. The trial courtgranted summary judgment relying onHudson, as cited in Lusby v. Lusby, 283Md. 334, 345, 390 A.2d 77, 82 (1978),finding that the interspousal tort immunityrule was still good law in Maryland. How-ever, in Boblitz the court of appeals ab-rogated the interspousal immunity rule asto cases sounding in negligence.The court's opinion begins by tracingthe history of the doctrine of interspousalimmunity. This doctrine was created byjudicial decisions and was based on thearchaic concept that by marriage, "thehusband and wife are one person in law;that is, the very being or legal existenceof the woman is suspended during themarriage, or at least is incorporated andconsolidated into that of the hus-band .. " 296 Md. at 244, 462 A.2d at507 citing Blackstone. As the court of ap-peals pointed out, the doctrine would moreaptly be called "a rule in derogation ofmarried women."In 1898, the Maryland legislature en-acted the "Married Women's Act" (codi-fied as MD. ANN. CODE, art. 45 § 5), whichwas the first recognition of women's rightsseparate from those of their husbands.This act gave married women the right tocontract for themselves, to contract withtheir husbands, and to sue or be sued intheir own name. Unfortunately, the Actdid not specifically give women the rightto sue their husbands for actions in tort.In 1910, the Supreme Court of the UnitedStates in Thompson v. Thompson, 218U.S. 611 (1910) found that the District ofColumbia's Married Women's Act, an actsimilar to Maryland's, was not intendedto give a right of action in tort to a wifeagainst her husband. Subsequent litiga-tion in many jurisdictions concerning thecontinuing viability of the interspousal tortimmunity rule was heavily influenced bythe Thompson decision.At the time of the Boblitz decision, thirty-five states had abrogated the inter-spousal tort immunity doctrine either fullyor partially. Two states imposed the doc-trine by statute.In its decision, the Court of Appeals ofMaryland examined some of the reasonsasserted for retaining the interspousal tortimmunity rule: the unity of husband andwife will be preserved; interspousal tortactions will destroy the harmony of themarital relationship; retention of the doc-trine will prevent collusive and fraudulentclaims; retention of the doctrine will guardagainst an increase in trivial claims; di-vorce and criminal courts furnish ade-quate redress; and change is solely withinthe purview of the legislature.The court held that these reasons donot withstand careful scrutiny. The courtfurther stated that the rule was unsoundin the circumstances of modern life. Whilethe court did not explicitly state the basisfor its holding, it was in accord with themajority of states.Citing decisions from other jurisdictionsin which the interspousal tort immunityrule was abrogated, the court proceededpoint by point to dispel the arguments forretaining the doctrine. As to the argumentthat it would destroy the unity of husbandand wife: "[t]he doctrine ... cannot besupported by an antiquated and narrow'unity' doctrine that perpetuates the fictionof female disability if not inferiority ... "Fernandez v. Romo, 646 P.2d 878, 881(Ark. 1982). In response to the argumentthat it would disrupt family harmony: "[i]tis difficult to perceive how any law barringaccess to the courts for personal injurieswill promote harmony .. " Coffindafferv. Coffindaffer, 244 S.E. 2d 338 (W.Va.1978). As to prevention of collusive andfraudulent claims: "It would be a sadcommentary on the law if we were to ad-mit that the judicial processes are so in-effective that we must deny relief to aperson otherwise entitled simply becausein some future case a litigant may be guiltyof fraud or collusion. Once that conceptwas accepted, then all causes of actionsshould be abolished. Our legal system isnot that ineffectual." Klein v. Klein, 58Cal.2d 692, 376 P.2d 70, 73 (1962). Inresponse to adequate redress being(Continued on p. 18)Quickee Offset.inc.* Specializing in XeroxCopies" Regular Xeroxing" Fabulous Xerox 9400Duplicating" The NEW XeroxCOLOR Copier" Wedding Invitationsand Announcements" Organization Newsletters,Rule Books, Programs andTickets" Fast Photo Offset,Phototypesetting,Duplicating,Printing & BinderyServices" Fine color printing2310 N. Charles St.(Customer Parking)Baltimore, Md. 212180 467-5800States Bankruptcy Court for the Districtof Maryland, Baltimore Division, the judgesets an ideal fee for particular types ofbankruptcy, and issues a Show Causeorder as to why the fee should not bediminished if the amount listed in the pe-tition exceeds the limit the judge has set.The court does not disclose the actualamount of the maximum fees allowable.While this non-disclosure protects somebankruptcy estates from overreaching bythe debtor's attorney, it also deprives at-torneys of guidelines to determine fair andequitable fees. In fact, this practice pro-motes litigation by failing to provide scru-pulous attorneys with assistance in set-ting fees and by chastizing them after thefees are set. With the immense numberof bankruptcy cases filed each year, thereis little chance that each case will be ex-amined to determine if the fees chargedare reasonable. If there is no objection tothe amount, the court allows the com-pensation if it does not exceed its limit.While attorneys have the ethical obli-gation to charge a reasonable fee,30 with-out standards to guide them the task isdifficult. There appear to be three stand-ards applied when dealing with attorneys'fees in bankruptcy: the Code of Profes-sional Responsibility, the BankruptcyCode, and caselaw (such as First Colo-nial). While these standards appear tooverlap, it is unclear how they are in-tended to interact, when they are in-tended to apply, and which takes prec-edence. If the court determines that a feeis excessive, should a complaint be filedwith the Ethics Committee? If a fee isfound to be excessive, is it per se uneth-ical? These questions and more need tobe answered.ConclusionIn order to protect unwary clients andto prevent subsequent litigation, the localbar associations should examine attor-neys' fees and develop recommenda-tions as to what fees are reasonable. Thepresent standards in DR 2-106 areambiguous: "[a] fee is clearly excessivewhen, after a review of the facts, a lawyerof ordinary prudence would be left with adefinite and firm conviction that the fee isin excess of a reasonable fee. '" 31 (em-phasis added.) Without guidelines, the at-torney may, even without so intending,charge a fee that is later considered tobe excessive. The reluctance on the partof the bar associations to establish guide-lines is an overreaction to the prohibitionagainst fixing clearly improper minimumfees.32In the absence of sufficient guidelines,however, attorneys should take it uponthemselves to ascertain reasonable ratesin the community and attempt to keepthem to a minimum. Although the Codeno longer requires economy in fees, thebankruptcy bar should consider it theirethical obligation under DR 2-106 tocharge lower-than-normal fees to clientswho contract for their services becauseof financial problems. Rather than re-maining silent, creditors should also be-come more involved by objecting to feeswhich appear excessive. In many liqui-dation cases, the amount received by thedebtor's attorney for bankruptcy mattersmay equal half of the amount owed tocreditors. These fees, however, do nottrigger the court's alarm by exceeding theamount set for liquidation cases. Height-ened awareness of the ethical obligationshould benefit both the petitioner and thecreditor in many bankruptcy cases.* Kimberly Armstrong is a third-year law stu-dent at the University of Baltimore School ofLaw who has been working in the area ofbankruptcy.Footnotes1 MODEL CODE OF PROFESSIONAL RESPONSIBILITYDR 2-106 (A) (1979). See also EC 2-18(1979).2 Cf. ABA Comm. on Professional Ethics, For-mal Op. 323 (1970).3 Fee Schedules on the Way Out, 59 A.B.A.J.1435 (1973).4 MODEL CODE OF PROFESSIONAL RESPONSIBILITYDR 2-106 (B) (1979).5487 F.2d 161 (3d Cir. 1973); 540 F.2d 102(3d Cir. 1976) (after remand).6 1d. at 161, 167.7 Id.8 Furtado v. Bishop, 635 F.2d 915, 916 (1stCir. 1980); Seigal v. Merrick, 691 F.2d 161,164 (2d Cir. 1980); Chrapliwy v. Uniroyal,Inc., 670 F.2d 760 (7th Cir. 1982); AvalonCinema Corp. v. Thompson, 689 F.2d 137,140 (8th Cir. 1982); Copeland v. Marshall,641 F.2d 880 (D.C. Cir. 1980).9 488 F.2d 714 (5th Cir. 1974).10 Id. at 717-19.11 Lindy Brothers Builders, Inc. v. AmericanRadiator and Sanitary Corp., 487 F.2d 161,(3d Cir. 1973). See also Report of the Pro-ceedings of the Judicial Conference of theUnited States, March 30-31, 1967 at 34 (ascited in Notes of Advisory Committee onRules, 11 U.S.C. Rule 219, Appendix at 1318(1976).12 488 F.2d at 717.13 11 U.S.C. §§ 1-1200 (1976).14 11 U.S.C. § 102 (1978); Bankruptcy Rule219.15 544 F.2d 1298 (5th Cir. 1977), cert. den.431 U.S. 904 (1977).16 Id. at 1299.17 Id.18 First Colonial, 544 F.2d at 1299; 11 U.S.C.§§ 102, 104 (Supp. V 1981); Bankruptcy Rule219 (1977).19 Id., 544 F.2d at 1300.20 11 U.S.C. §330 (Supp. V 1981).21 Id.22 See H.R. Rep. No. 595, 95th Cong., 1 st Sess.330 (1977) reprinted in U.S. Code Cong. &Ad. News 5787, 6286 (1978). In Re CascoBay Lines, Inc. 25 Bankr. 747, 754 (1982).11 The only changes in subsections (a) and (b)are stylistic.24 S. Rep. No. 989, 95th Cong., 2d Sess. 39(1978); U.S. Code Cong. & Ad. News 5825.21 In re Peninsula Roofing and Sheet Metal,Inc., 9 Bankr. 257 (1981).26 In re Winters and Co., Inc., 26 Bankr. 720(1982).27 In re Pacific Far East Line, Inc., 644 F.2d1290 (9th Cir. 1981).28 11 U.S.C. § 547(6) (Supp. V 1981).29 See n. 24 supra.30 MODEL CODE OF PROFESSIONAL RESPONSIBILITYDR 2-106, EC 2-18.31 MODEL CODE OF PROFESSIONAL RESPONSIBILITYDR 2-106 (B). Cf. ABA Formal Op. 27 (1970).32 Cf. ABA Formal Op. 171 (1970).Recent Developments(continued from page 4)available in divorce and criminal courts:"The criminal law may vindicate society'sinterest in punishing a wrongdoer but itcannot compensate an injured spouse forher or his suffering and damages. Divorceor separation provide escape from tor-tious abuse but can hardly be equatedwith a civil right to redress and compen-sation for personal injuries." Merenoff v.Merenoff, 76 N.J. 535, 388 A.2d 951, 962(1978).Justice Couch, joined by Justice Ro-dowsky, dissented in Boblitz, based onhis belief that such a change would bebest made by the legislature. The majorityheld that in the present case there existedno legislative barrier to the abrogation ofthe doctrine, since it was a common lawrule brought about by judicial decisions.The court further stated that the doctrineof stare decisis should not be construedas a prohibition against changing a ruleof law that has become unsound in thecircumstances of modern life.While the decision in Boblitz may beviewed as a giant step forward in Mary-land tort law, there are circumstances inwhich the interspousal immunity rule maystill apply. The court stated that certainconduct that would be tortious betweenstrangers would not be tortious betweenspouses due to the mutual concessionsimplied in the marital relationship. Thedoctrine of intra-family tort immunity wasuntouched by the Boblitz decision. Thecourt also limited its holding to casessounding in negligence and did not ad-dress cases which involved intentionaltorts.

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Recent Developments: Interspousal Tort Immunity

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