Horton v. Unigard Ins., Co.

• Decision Date: 14 February 1978
• Docket Number: 76-1622,Nos. 76-1368,s. 76-1368
• Citation: 355 So.2d 154
• Parties: James HORTON, as Personal Representative of the Estate of Clementine B. Horton, Deceased, Appellant, v. UNIGARD INS., CO., of the Unigard Ins., Group, and Joseph McAllister and Government Employees Ins., Co., and Raymond A. Horton, Appellees.
• Court: Florida District Court of Appeals

Page 154

355 So.2d 154

James HORTON, as Personal Representative of the Estate of Clementine B. Horton, Deceased, Appellant, v. UNIGARD INS., CO., of the Unigard Ins., Group, and Joseph McAllister and Government Employees Ins., Co., and Raymond A. Horton, Appellees.

Nos. 76-1368, 76-1622.

District Court of Appeal of Florida, Fourth District.

Feb. 14, 1978.

Denise Davis Schwartzman of Schwartzman & Quinones, Hialeah, for appellant.

Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees-Government Employees Ins. Co. and Raymond A. Horton.

DOWNEY, Judge.

This case involves an application of the doctrine of interfamily immunity.

Clementine Horton was killed in an accident while a passenger in an automobile driven by her husband, Raymond Horton. The personal representative of Clementine's estate brought a wrongful death action against Clementine's husband ¹ for the benefit of Clementine's estate and Clementine's two minor children. McAllister, the driver of the other vehicle involved in the accident, was also joined as a defendant as were the insurance carriers insuring Horton and McAllister. The trial court entered a final judgment dismissing the complaint against Raymond Horton and his insurance carrier, and the personal representative perfected this appeal in Case No. 76-1622. ²

Appellant contends that neither the doctrine of interspousal immunity nor the doctrine of interfamily immunity precludes appellant from maintaining this wrongful death action on behalf of the deceased wife's estate and the minor children. Appellees, on the other hand, argue that the doctrine of interspousal immunity does preclude the personal representative from maintaining the suit on behalf of Clementine's estate and that interfamily immunity prevents maintenance of the suit on behalf of the minor children.

With regard to the wrongful death action on behalf of the wife's estate we hold that such an action can not be maintained because of the doctrine of interspousal immunity. Because of the doubts which seem to have been engendered by some recent decisions, we recently held in the case of Blanton v. Blanton, Opinion filed January 24, 1978, Fourth District Court of Appeal Case No. 76-2678, 354 So.2d 430, that the doctrine of interspousal immunity is alive and well in this jurisdiction. Having established that the doctrine is still viable we must decide whether there is something unique about a wrongful death action which would exempt such an action from the application of the doctrine. We hold there is not and that the interspousal immunity doctrine is applicable to a wrongful death action by a deceased wife's personal representative against her husband. In Orefice v. Albert, 237 So.2d 142 (Fla.1970), the Supreme Court of Florida stated:

"It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources." Id. at 145.

Appellant says the quoted statement from Orefice, supra, is obiter dictum and we concede that it is. However, it is obiter dictum from the highest court in this State and that is no ordinary dictum! The rule seems to be that dictum in an opinion by the Supreme Court of Florida, while not binding as precedent, is persuasive because of its source. Town of Lantana v. Pelczynski, 290 So.2d 566 (Fla. 4th DCA 1974); O'Sullivan v. City of Deerfield, 232 So.2d 33 (Fla. 4th DCA 1970); Weber v. The Zoning Board of Appeals of the City of West Palm Beach, 206 So.2d 258 (Fla. 4th DCA 1968); Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965); 8 Fla.Jur., Courts § 168. Suffice to say we are persuaded by the dictum in Orefice, supra, because we perceive no reason not to apply the doctrine of interspousal immunity to a wrongful death claim by the personal representative of a deceased wife's estate against her erstwhile husband. Section 768.19, Florida Statutes (1975), provides, among other things, that when a death is caused by the wrongful act or negligence of a person and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued the person guilty of the wrongful act or negligence shall remain liable notwithstanding the death of the person injured. Clearly Clementine could not maintain an action and recover damages against her husband Raymond had she survived her injuries.

Turning now to the wrongful death claim on behalf of the two minor children against their father, we hold that action is barred by the doctrine of interfamily immunity. We do not reach this conclusion without some difficulty because in Shiver v. Sessions, 80 So.2d 905 (Fla.1955), the Supreme Court held that a wrongful death claim could be maintained on behalf of minor children against their stepfather for the wrongful death of their mother. In the Shiver case the stepfather killed the mother and then committed suicide. The wrongful death action was instituted on behalf of the minor children against the deceased stepfather's estate. The trial court dismissed the suit apparently on the grounds that such an action could not be maintained because the wrongful death statute provided that as a...