interspousal immunity in Illinois

1992Although the parties do not raise the issue whether Greenawalt is entitled to recover under her uninsured motorist policy based on the doctrine of interspousal immunity, Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384 , is controlling.

1992Although the parties do not raise the issue whether Greenawalt is entitled to recover under her uninsured motorist policy based on the doctrine of interspousal immunity, Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384 , is controlling.

1985The petitioner maintains that this court’s interpretation in Crane v. Crane (1876), 81 Ill. 165 , that spouses were also incompetent to testify resulted because the court was attempting to reconcile the Dead Man’s Act and the interspousal privilege.

1985In Crane v. Crane (1876), 81 Ill. 165 , where the interpretation was first made, the interspousal privilege (section 5) was not discussed.

1985The court held simply that "[the complainant] herself not being admissible as a witness, her husband was not properly admitted as a witness on her *274 behalf." 81 Ill. 165, 170-71 .) It is true that in Treleaven v. Dickson (1886), 119 Ill. 548 , the court did refer to section 5 along with section 2, but from its language it is not clear that the court's interpretation of section 2 actually related to the provision in section 5 that spouses were incompetent to testify against each other.

1985The court held simply that “[the complainant] herself not being admissible as a witness, her husband was not properly admitted as a witness on her behalf.” ( 81 Ill. 165, 170-71 .) It is true that in Treleaven v. Dickson (1886), 119 Ill. 548 , the court did refer to section 5 along with section 2, but from its language it is not clear that the court’s interpretation of section 2 actually related to the provision in section 5 that spouses were incompetent to testify against each other.

1984In Elkins and in Farmers Insurance Group v. Nudi (1982), 108 Ill.

1984App. 3d 151 , 438 N.E.2d 1260 .) Thus interpreted, Elkins cast doubt on the precedential value of Heckendorn v. First National Bank (1969), 19 Ill. 2d 190 , 166 N.E.2d 571 , in which the court held that interspousal immunity operated as a substantive, rather than procedural, bar to a widow’s claim against her husband’s estate.

2018Id. at 155 , 316 Ill.Dec. 505 , 879 N.E.2d 893 . ¶ 18 It is important to note that the circuit court's ruling in this case was that the interspousal immunity provision in Indiana's Guest Statute applied to bar Patricia's claim.

2018Id. at 155 , 316 Ill.Dec. 505 , 879 N.E.2d 893 . ¶ 18 It is important to note that the circuit court's ruling in this case was that the interspousal immunity provision in Indiana's Guest Statute applied to bar Patricia's claim.

2018Id. at 169, 160 Ill.Dec. 169 , 576 N.E.2d 1123 (stating that "Illinois has little interest in regulating the right of married citizens of other States to maintain actions in tort against each other"). ¶ 30 Applying the analyses of Wartell , Nelson , and Pinorsky to the instant case, we believe the parties' domicile is the most important contact such that the interspousal immunity question must be answered in favor of Illinois law.

2018Id. at 169, 160 Ill.Dec. 169 , 576 N.E.2d 1123 (stating that "Illinois has little interest in regulating the right of married citizens of other States to maintain actions in tort against each other"). ¶ 30 Applying the analyses of Wartell , Nelson , and Pinorsky to the instant case, we believe the parties' domicile is the most important contact such that the interspousal immunity question must be answered in favor of Illinois law.

1991In Young v. Chicago Transit Authority, we rejected this argument because the statutory immunity granted under amended section 27, “in contrast to interspousal immunity, is non-waivable and prevents a cause of action from coming into being.” Young, 209 Ill.

1991App. 3d 674 , 463 N.E.2d 129 , where the court held that interspousal immunity was a procedural bar because it could be waived, and was not a substantive bar to causes of action between spouses.

1990App. 3d 936 , 439 N.E.2d 1055 , Allstate was distinguished, and the court held that interspousal immunity was not a personal defense but was a statutory disability which could be invoked by the spouse’s insurer when defending the other spouse’s suit for negligence.

1990App. 3d 1074, 1077 , 430 N.E.2d 236 , in stating that the interspousal immunity was a procedural and not a substantive bar to actions between spouses.

1986Our supreme court, in affirming this court that the trial court erred in dismissing plaintiff’s action pursuant to the interspousal immunity bar of the Rights of Married Women Act, stated as follows: “In 1955 in Bradley v. Fox, 7 Ill. 2d 106 , this court followed its holding in Welch v. Davis, saying it had been determined there that the administrator of a wife’s estate may maintain an action against the husband’s estate for loss suffered by a child through the death of the wife by the husband’s wrongful conduct.

1984Stat. 1951, ch. 68, par. 1) one spouse could bring an action in tort against the other during coverture (Brandt v. Keller (1952), 413 Ill. 503 ) and that the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” Thus, because the interspousal immunity statute did not destroy the cause of action, but only provided a defense, defendant’s wife in the case before us was an insured, thus making the uninsured motorist

1984Stat. 1981, ch. 40, par. 1001.) Interspousal immunity is not unconstitutional on due process or equal protection grounds (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190 , 166 N.E.2d 571 ).

1984Stat. 1981, ch. 40, par. 1001.) Interspousal immunity is not unconstitutional on due process or equal protection grounds (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190 , 166 N.E.2d 571 ).

1982App.3d 74, 75-76 , 411 N.E.2d 547 , 548: "[I]n * * * Elkins * * * the Illinois Supreme Court held that the immunity established by the 1953 amendment did not bar suit, but rather that it provided the tortfeasor spouse with a defense, that of immunity, which could be raised as a defense and which could also be waived." Notwithstanding the majority's caveat that "we have no authority to amend the interspousal immunity statute by judicial fiat," I feel constrained to note that neither does this court have authority to overrule a decision of the Illinois Supreme Court. ( Vinke v. Artim Transportat

1982(Vinke v. Artim Transportation System, Inc. (1980), 87 Ill.

1982(Herget National Bank v. Berardi (1976), 64 Ill. 2d 467 , 356 N.E.2d 529 , adds no support to the majority’s position since the wrongful death action advanced therein by the personal representative of the wife’s estate sought not to recover benefits on behalf of the deceased wife herself, but rather benefits were sought on behalf of surviving children.) The general rule announced in Heckendorn and Wartell, lacking any evidence that the executor did not, in fact, assert the interspousal immunity defense personally in his capacity as representative of the deceased, is unaffected by Elkins.

1982(Herget National Bank v. Berardi (1976), 64 Ill. 2d 467 , 356 N.E.2d 529 , adds no support to the majority’s position since the wrongful death action advanced therein by the personal representative of the wife’s estate sought not to recover benefits on behalf of the deceased wife herself, but rather benefits were sought on behalf of surviving children.) The general rule announced in Heckendorn and Wartell, lacking any evidence that the executor did not, in fact, assert the interspousal immunity defense personally in his capacity as representative of the deceased, is unaffected by Elkins.

1982App.3d 74, 75-76 , 411 N.E.2d 547 , 548: "[I]n * * * Elkins * * * the Illinois Supreme Court held that the immunity established by the 1953 amendment did not bar suit, but rather that it provided the tortfeasor spouse with a defense, that of immunity, which could be raised as a defense and which could also be waived." Notwithstanding the majority's caveat that "we have no authority to amend the interspousal immunity statute by judicial fiat," I feel constrained to note that neither does this court have authority to overrule a decision of the Illinois Supreme Court. ( Vinke v. Artim Transportat

1982App. 3d 74, 75-76 , 411 N.E.2d 547 , 548: “[I]n *** Elkins *** the Illinois Supreme Court held that the immunity established by the 1953 amendment did not bar suit, but rather that it provided the tortfeasor spouse with a defense, that of immunity, which could be raised as a defense and which could also be waived.” Notwithstanding the majority’s caveat that “we have no authority to amend the interspousal immunity statute by judicial fiat,” I feel constrained to note that neither does this court have authority to overrule a decision of the Illinois Supreme Court.

1981(Annot., 19 A.L.R.2d 1003 (1951).) However, a trend began with the Pennsylvania case of Fisher v. Diehl (1945), 156 Pa. Super. 476 , 40 A.2d 912 , to abrogate the doctrine of interspousal immunity and allow contribution to the third party against the tortfeasor-spouse.

1981(Annot., 19 A.L.R.2d 1003 (1951).) However, a trend began with the Pennsylvania case of Fisher v. Diehl (1945), 156 Pa. Super. 476 , 40 A.2d 912 , to abrogate the doctrine of interspousal immunity and allow contribution to the third party against the tortfeasor-spouse.

1979App. 1976), 338 So. 2d 334 , it was held that the doctrine of interspousal immunity did not bar the wife’s recovery under an uninsured motorist endorsement because the defense was personal to the tortfeasor spouse and was not available to his insurer.

1979App. 1976), 338 So. 2d 334 , it was held that the doctrine of interspousal immunity did not bar the wife’s recovery under an uninsured motorist endorsement because the defense was personal to the tortfeasor spouse and was not available to his insurer.

1979In De Luca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76 , 215 N.E.2d 482 , and Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis. 2d 60 , 171 N.W.2d 914 , it was held that although the uninsured motorist, in an action against him, could have availed himself of a defense based upon the statute of limitations, that defense was not available to his insurer.

1979In De Luca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76 , 215 N.E.2d 482 , and Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis. 2d 60 , 171 N.W.2d 914 , it was held that although the uninsured motorist, in an action against him, could have availed himself of a defense based upon the statute of limitations, that defense was not available to his insurer.

1979In De Luca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76 , 215 N.E.2d 482 , and Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis. 2d 60 , 171 N.W.2d 914 , it was held that although the uninsured motorist, in an action against him, could have availed himself of a defense based upon the statute of limitations, that defense was not available to his insurer.

1979In De Luca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76 , 215 N.E.2d 482 , and Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis. 2d 60 , 171 N.W.2d 914 , it was held that although the uninsured motorist, in an action against him, could have availed himself of a defense based upon the statute of limitations, that defense was not available to his insurer.

1975Thereafter in Welch v. Davis, 410 Ill. 130 , 101 N.E.2d 547 (1951), the supreme court was called upon to decide whether the personal representative of a decedent wife who had been shot and killed by her husband could recover under the death statute from the husband’s estate for the benefit of the wife’s minor daughter by a former marriage, the mother having been the daughter’s sole source of support.

1975Thereafter in Welch v. Davis, 410 Ill. 130 , 101 N.E.2d 547 (1951), the supreme court was called upon to decide whether the personal representative of a decedent wife who had been shot and killed by her husband could recover under the death statute from the husband’s estate for the benefit of the wife’s minor daughter by a former marriage, the mother having been the daughter’s sole source of support.