" Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (N.M.Ct.App. 1973). See, Fredrickson Watson Const. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 (1940); Self v. Self, 58 Cal.2d 683, 26 Cal.Rptr. 97, 376 P.2d 65 (1962); Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962); Freehe v. Freehe, 81 Wn.2d 183, 500 P.2d 771 (1972).
Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975). See also, Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App. 1973); State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973); Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972); State ex rel. Reynolds v. Molybdenum Corp. of Amer., 83 N.M. 690, 496 P.2d 1086 (1972); Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971). Judge Walter's opinion is an excellent analysis of the issue of comparative negligence.
We further note that most of the jurisdictions which have rejected the rule of interspousal immunity have considered these very same arguments and found them wanting. See Self v. Self, 58 Cal.2d 683, 689-691 (1962) (intentional torts); Klein v. Klein, 58 Cal.2d 692, 694-696 (1962) (negligent torts); Brooks v. Robinson, 259 Ind. 16, 20-22 (1972); Rupert v. Stienne, 90 Nev. 397, 401-402 (1974); Immer v. Risko, 56 N.J. 482, 488-495 (1970); Flores v. Flores, 84 N.M. 601, 603 (Ct. App. 1973) (intentional torts); Maestas v. Overton, 87 N.M. 213 (1975) (negligent torts); Surratt v. Thompson, 212 Va. 191, 192 (1971); Freehe v. Freehe, 81 Wn.2d 183, 187-189 (1972). However, the defendant argues that, unlike the situation prevailing in most other jurisdictions, the rule of interspousal immunity has taken on statutory dimensions in Massachusetts.
We granted certiorari and reverse the Court of Appeals. In Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App. 1973), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973), it was held that, because the reasons for the common law rule of interspousal immunity for personal torts either no longer exist or are obviously specious and invalid, the rule should be abandoned where intentional torts are involved. The court there specifically limited its consideration of the common law rule to the particular facts — that of intentional tort injury by one spouse against the other — and avoided deciding whether the rule should be abandoned for negligently inflicted torts also, apparently in the face of this court's decision over twenty years ago in Romero v. Romero, 58 N.M. 201, 269 P.2d 748 (1954), adopting the common law rule "that one spouse could not sue the other in tort for personal injuries."
Wife contends that we must recognize the tort when committed by one spouse against the other because New Mexico has abandoned immunity for interspousal torts. See Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975) (wrongful death — airplane crash); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App. 1973) (intentional stabbing). Yet the abolition of immunity does not mean that the existence of the marriage must be ignored in determining the scope of liability.
This flood does not appear to have materialized in states which permit suits between spouses. See, e.g., Flores v. Flores, 84 N.M. 601, 506 P.2d 345, 347 (1973). For his part, Beyer urges us to yield to the wisdom of the Illinois legislature.
In Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975), interspousal immunity for non-intentional torts was abolished. Interspousal immunity for intentional torts had previously been abolished in Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (1973). There is no stronger public policy for barring intrafamily suits between parents and children than existed for barring intraspousal suits.
Overton, 87 N.M. 213, 531 P.2d 947 (1975)], is an anachronism, not simply because it conflicts with [our statutes], but because `the reasons for the rule are no longer valid.'" Id. (quoting Flores v. Flores, 84 N.M. 601, 603, 506 P.2d 345, 347 (Ct.App. 1973)). In Ballard, we also rejected the insurance company's argument that we should uphold the family exclusion to liability coverage beyond the amount of the statutory minimum, despite the fact that the insured had purchased greater liability coverage.
Familial exclusion, whether in relation to insurance contracts, as in Estep, or tort law, as in Maestas, is an anachronism, not simply because it conflicts with the NMMFRA, but because "the reasons for the rule are no longer valid." Flores v. Flores, 84 N.M. 601, 603, 506 P.2d 345, 347 (Ct.App. 1973) (rejecting interspousal immunity for intentional torts), cited with approval in Maestas, 87 N.M. at 214, 531 P.2d at 948. {13} This Court, in Estep, rejected the insurer's argument that the potential for fraudulent or collusive claims justified a family exclusion clause: "denial of negligence actions to an entire class of persons-here, all family members-cannot be tolerated simply because some undefined portions of that class might instigate fraudulent lawsuits."
Many jurisdictions have allowed former spouses' claims in tort for assault and battery which occurred during the marriage. Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993); Caron v. Caron, 577 A.2d 1178 (Me. 1990); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (1973); Heino v. Harper, 306 Or. 347, 759 P.2d 253 (1988); Goode v. Martinis, 58 Wn.2d 229, 361 P.2d 941 (1961); Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991), appeal after remand, 190 W. Va. 126, 437 S.E.2d 436 (1993); Stuart v. Stuart, 140 Wis.2d 455, 410 N.W.2d 632 (1987), aff'd. 143 Wis.2d 347, 421 N.W.2d 505 (1988).