Doan, J.c.c., Temporarily Assigned.
This is an application under R. 4:50-1 (f) to vacate this court's Order of September 29, 1971, which granted summary judgment dismissing all claims and cross-claims against Vittorio Di Martino on the ground of his immunity to a suit by his parents. Plaintiffs seek to have Vittorio Di Martino reinstated as a party defendant.
A recital of the historical factual situation in this case would appear to be indicated.
On May 15, 1970, Vittorio Di Martino was driving a car owned by his father, Giovanni Di Martino, in which plaintiff Leonarda Di Martino, his mother, was a passenger. It collided with an automobile which was being driven by the defendant Evelyn Ventrella. On August 13, 1970, Vittorio's parents commenced a negligence action against Ventrella to recover for his mother's personal injuries and for his father's per quod and property damages. Ventrella's answer denied negligence, counterclaimed against Giovanni for
contribution, and asserted a third-party claim against Vittorio for contribution under the Joint Tortfeasors Contribution Act (N.J.S.A. 2A:53A). On May 17, 1971, leave of court was granted to permit the plaintiffs to amend their complaint to add Vittorio Di Martino as a direct party defendant.
On September 29, 1971, this court granted defendant Vittorio Di Martino's motion to dismiss all claims against him by reason of the doctrine of parental immunity. The action taken was based upon the decision in Schwartz v. U.S. Rubber Corp. , 112 N.J. Super. 595 (Law Div. 1971), affirmed 118 N.J. Super. 128 (App. Div. 1972), cert. den. 60 N.J. 470 (1972). That case held that the abrogation of parent-child immunity, as declared in France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970), applied only to accidents occurring after July 10, 1970, the effective date established by the Supreme Court in Darrow v. Hanover Township , 58 N.J. 410, 420 (1971) for the abolition of interspousal immunity, as decided in Immer v. Risko , 56 N.J. 482 (1970). Since this accident occurred on May 15, 1970, the plaintiffs' claims against their son were held to be precluded by the July 10, 1970 cut-off date.
On the present motion, plaintiffs argue that the cut-off date does not conclusively preclude a parent-child claim because where there is no justified reliance upon immunity and where the accident has been fully and timely investigated, then there is no reason for any immunity. Plaintiffs claim that since the father Giovanni was the principal insured and since his insurance carrier investigated the accident and settled an independent claim with the Ventrellas, there was no reliance nor would any party be prejudiced. Plaintiffs rely wholly on the case of Gotsch v. Gotsch , 121 N.J. Super. 479 (Cumberland Cty. Ct. 1971), affirmed 121 N.J. Super. 454 (App. Div. 1972). That case held that an interspousal claim resulting from an accident before the cut-off date can be maintained where the accident had been fully investigated and there was no reliance on the immunity doctrine.
In opposition, Vittorio Di Martino argues that the Gotsch case is inapposite because that case involved an antenuptial accident, in which event an insurer would have good cause to promptly and assiduously investigate claims involving separate, unrelated individuals. In the parent-child situation, there is no comparable urgency.
The disposition of this motion depends upon the resolution of two subsidiary issues: (1) whether the abrogation of parental immunity encompassed a suit by an injured parent against an allegedly negligent child; and (2) whether the established cut-off date completely precludes such a suit. The answer to the first inquiry is in the negative and to the second inquiry, in the affirmative.
The abolition of parent-child immunity is not as extensive as the abolition of interspousal immunity. In Immer v. Risko, supra , the Supreme Court limited the scope of its decision to interspousal "claims arising out of motor vehicle accidents" (56 N.J. at p. 495). In contrast, the holding in France v. ...