Go to navigation Go to content
Toll-Free: 888.716.8021
Phone: 208.344.5555
Morton Law Offices, Chartered

The Case of the Intrafamily Tort

A father is driving the family in the family SUV down the interstate late at night at 70 mph and falls asleep at the wheel. As the vehicle catapults off the road, it "trip flips" causing the vehicle to violently roll while in the air. Once the SUV crashes into the ground it rolls several more times before the vehicle comes to a rest upside down upon its roof. The family passengers therein are severally hurt.

The question posed is whether the insurance carrier of the family vehicle may be exculpated from having to pay any claims for compensation for personal injuries arising from the negligence of one family member causing injury to other family members residing in the same household.


The fact pattern raises an interesting and controversial question concerning "intrafamilial torts" otherwise known as an "intrafamily torts." Should as a matter of public policy family members be prohibited from being able to sue another family member for personal injuries caused by negligence?

The Idaho Supreme Court addressed this question in the case of Draper v. Draper, 115 Idaho 973, 772 P.2d 180 (1989). In Draper, a family was involved in a motor vehicle crash. The insurance policy excluded coverage for any bodily injury by one family member against another living in the same household. The district court held that the interfamily exclusion in the policy was void and unenforceable, and so the insurer vis a vis the defendant family member appealed the decision of the lower court. The Idaho Supreme Court reversed and remanded the decision back to the district court with the holding that family members claims against each other for personal injuries arising from negligence are barred only as to claims exceeding the the policy limits of an insurance policy. Hence, a family member is able to sue another family member only up to the amount of money necessary to recover proceeds of an insurance policy.

Albeit, the sound of a family member suing another family member sounds distasteful. However, in Idaho, the prohibition against one family member suing another family member of injuries arising from neglience is only limited to monies that exceed the amount beyond that of coverage provided pursuant to an insurance policy.

The insurance company has an obligation under every auto policy to hire counsel to defend the "insured" for any claim covered under the insurance policy. The policy also requires the insurance company to indemnify the defendant for any claim brought pursuant to the insurance policy up to the policy limit purchased by the policyholder. Idaho law prohibits the plaintiff from being able to disclose the existence of any insurance policy. In fact, in Idaho, the mere mention that the defendant is insured by an insurance policy at trial in most cases may result in the court declaring a mistrial. This may give the illusion to some jurors that the defendant may be uninsured even though such is not the case.

But in cases involving intrafamilial or intrafamily torts, the Idaho Supreme Court has held the Court may allow a lawsuit by one family member against another living in the same household in order to recover compensation to be paid by and through an insurance policy. In other words, family member living in the same household are immune from any liability for injuries incurred by one family member upon another living in the same household for damages over and above the monies paid pursuant to the policy limit of an insurance policy.

The reasoning behind this decision is that there is a strong public policy in Idaho that encourages harmony within the family unit. However, that policy is not abridged simply by allowing family members to receive compensation for their injuries caused by the negligence of another family member where an insurance contract is responsible to paying off the judgment or claim. After all, insurance carriers enter contracts to defend and indemnify their insureds up to the policy limit of their policy. Idaho takes the position that insurance carriers should not be exculpated from their responsibility in discharging their responsibility in defending and indemnifying an insured simply because the claimant was injured by the negligence of another family member living in the same household.


If you or a loved one has been injured due to the negligence of another, you should consult with an experienced trial attorney. Boise Personal Injury and Wrongful Death Attorney Alan Morton has over 31 years of experience in helping clients recover compensation for personal injury and wrongful death. Call Mr. Morton’s office to schedule a free initial consultation at 208.344.5555 or toll free at 888.716.8021 or complete the online contact form. He would be happy to schedule a free initial consultation with you to discuss your legal rights and remedies. Call now!

Alan Morton
Advocate for Justice/Trial Lawyer