Dykstra-Gulick v. Gulick, DYKSTRA-GULIC

• Decision Date: 11 September 1992
• Docket Number: A,DYKSTRA-GULIC,No. 91-1992,91-1992
• Citation: 604 So.2d 1282
• Parties: Sherylppellant, v. Douglas GULICK, Appellee. 604 So.2d 1282, 17 Fla. L. Week. D2121
• Court: Florida District Court of Appeals

Page 1282

604 So.2d 1282

Sheryl DYKSTRA-GULICK, Appellant, v. Douglas GULICK, Appellee.

No. 91-1992.

604 So.2d 1282, 17 Fla. L. Week. D2121

District Court of Appeal of Florida,

Fifth District.

Sept. 11, 1992.

Dock A. Blanchard of Blanchard, Custureri, Merriam, Adel & Kirkland, P.A., Ocala, for appellant.

Anthony J. Salzman of Moody & Salzman, Gainesville, for appellee.

PER CURIAM.

Appellant Sheryl Dykstra-Gulick was injured while riding as a passenger in an automobile owned and operated by appellee Douglas Gulick. Appellant and appellee were married after the accident, and appellant subsequently filed a negligence action against appellee seeking damages for injuries she sustained in the accident. The trial court granted appellee's motion to dismiss the complaint with prejudice holding that appellant's action was barred by the doctrine of interspousal immunity. We reverse the final judgment only to the extent that it provides for a dismissal with prejudice and remand with instructions to abate this action.

The doctrine of interspousal immunity bars an action between a husband and wife based upon negligence. See Snowten v. United States Fidelity & Guaranty Co., 475 So.2d 1211 (Fla.1985); Raisen v. Raisen, 379 So.2d 352 (Fla.1979) cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). See also Sturiano v. Brooks, 523 So.2d 1126 (Fla.1988). However, if the parties' marriage should terminate by death ¹ or dissolution ² appellant could then maintain her action for negligence. In a case such as this, where the cause of action accrues prior to marriage, abatement of the action pending the possible termination of the marriage by dissolution or death is the proper disposition. See Gaston v. Pittman, 224 So.2d 326 (Fla.1969); Dykstra-Gulick v. Gulick, 579 So.2d 406 (Fla. 5th DCA 1991); Shoemaker v. Shoemaker, 523 So.2d 178 (Fla. 3d DCA 1988); Chatmon v. Woodard, 492 So.2d 1115 (Fla. 3d DCA 1986).

Because of the important social implications of the doctrine of interspousal immunity, we certify the following question to the Florida Supreme Court as one of great public importance:

WHERE ONE SPOUSE PRIOR TO MARRIAGE NEGLIGENTLY INJURES THE OTHER SPOUSE, SHOULD THE DOCTRINE OF INTERSPOUSAL IMMUNITY BE ABROGATED COMPLETELY TO ALLOW THE INJURED SPOUSE TO MAINTAIN A NEGLIGENCE ACTION DURING THE MARRIAGE AGAINST THE ALLEGEDLY NEGLIGENT SPOUSE FOR ALL OF THE INJURED SPOUSE'S DAMAGES, OR SHOULD THE DOCTRINE BE ABROGATED PARTIALLY TO ALLOW SUCH AN ACTION WHERE RECOVERY IS LIMITED TO THE EXTENT OF INSURANCE COVERAGE?

Accordingly, we affirm the trial court's holding that the instant action is barred by the doctrine of interspousal immunity. However, we reverse the final judgment to the extent that it provides for a dismissal with prejudice, and remand for entry of a final judgment abating this action until such time as the doctrine of interspousal immunity is no longer applicable.

AFFIRMED in part; REVERSED in part and REMANDED.

GOSHORN, C.J. and DIAMANTIS, J., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge, concurring specially.

As I did in Raisen v. Raisen, 370 So.2d 1148 (Fla. 4th DCA 1978), approved, 379 So.2d 352 (Fla.1979), cert. den., 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). I reluctantly concur because the supreme court has yet to act. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

It is high time, in my opinion, for our courts to recognize the weakness of the arguments for the maintenance of the interspousal immunity doctrine and to step in line with the great majority of other states. After all, it has been done in other intrafamilial immunity cases. See, e.g., Ard v. Ard, 414 So.2d 1066 (Fla.1982).

The two principal bases upon which the argument is made to maintain this inability to be compensated for injury are 1) the disruption of family, or marital, harmony and, 2) the possibility of collusion between the parties or fraud by them. The first has been largely discounted recently and in this case is hardly a factor because the marriage occurred after the injury and the attorney for appellee has, in no uncertain terms, admitted that he is the attorney for an insurance company and not really seeking the interests of Douglas Gulick. He said at oral argument that he has never consulted Mr. Gulick about his interests. Further, what is more disruptive than to require appellant to get a divorce in order to receive the compensation she is due for her injuries?

As far as collusion or fraud is concerned, this is the only place in the law where the possibility of a defense is a bar to suit. Is that fair? Or is it more fair for the suit to be...