New v. Hubbard

• Decision Date: 19 November 1992
• Docket Number: No. A92A1184,A92A1184
• Citation: 206 Ga.App. 679,426 S.E.2d 379
• Parties: NEW v. HUBBARD et al.
• Court: Georgia Court of Appeals

Page 379

426 S.E.2d 379

206 Ga.App. 679

NEW v. HUBBARD et al.

No. A92A1184.

Court of Appeals of Georgia.

Decided Nov. 19, 1992.

Reconsideration Denied Dec. 9, 1992.

Wilson, Strickland & Benson, Earl B. Benson, Jr., Mary M. Brockington, Atlanta, for appellant.

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, Harper, Waldon & Craig, Russell D. Waldon, Christopher M. Farmer, Atlanta, for appellees.

COOPER, Judge.

We granted this interlocutory appeal to review the trial court's ruling that interspousal immunity doctrine does not bar third-party actions for indemnity or contribution against a plaintiff's spouse.

Plaintiff, appellant's wife, was injured in an automobile collision involving two automobiles--one driven by appellant, and one driven by appellee Hubbard. Plaintiff sued appellee Hubbard, and appellees Hubbard and State Farm filed a third-party complaint against appellant seeking indemnification or contribution. Appellant moved for summary judgment based on interspousal immunity, and now appeals from the denial of that motion.

1. Appellant contends that the trial court erred in concluding that interspousal immunity doctrine does not apply in the context of third-party actions. We agree. In 1983, the Georgia legislature codified interspousal immunity doctrine: "Interspousal tort immunity, as it existed immediately prior to July 1, 1983, shall continue to exist on and after July 1, 1983." OCGA § 19-3-8. Moreover, prior to July 1983, this court had repeatedly ruled that interspousal immunity bars third-party actions for indemnity or contribution against a plaintiff's spouse. See, e.g., Shell v. Watts, 125 Ga.App. 542(6), 188 S.E.2d 269, rev'd on other grounds, 229 Ga. 474, 192 S.E.2d 265 (1972); Southern R. Co. v. Brewer, 122 Ga.App. 292, 176 S.E.2d 665 (1970). Accordingly, interspousal tort immunity as it existed immediately prior to July 1983, and thus as it was codified in OCGA § 19-3-8, included the rule against third-party actions for indemnity or contribution against a plaintiff's spouse.

Appellees argued below, and the trial court apparently concluded, that interspousal immunity nonetheless should not bar appellees' third-party action because the doctrine is antiquated and, to the extent its purposes--preservation of marital harmony and prevention of collusive tort actions--still apply at all, they do not apply in the context of third-party actions. We recognize that the majority of jurisdictions have abrogated interspousal immunity. However, it is still the rule in Georgia; and it has been reaffirmed as such numerous times since the national trend away from the doctrine has been recognized. See, e.g., OCGA § 19-3-8; Robeson v. Intl. Indem. Co., 248 Ga. 306(3, 4), 282 S.E.2d 896 (1981); Shoemake v. Shoemake, 200 Ga.App. 182, 407 S.E.2d 134 (1991). Even before codification of interspousal immunity, the Georgia Supreme Court refused to judicially abrogate the doctrine, saying that it was "a rather close question as to whether abrogation of the doctrine at this juncture would be a proper exercise of judicial authority. Although it is true that the doctrine is of common-law origin, it is of long-standing application; and it is not unrealistic to presume that people have come to rely on it." Robeson, supra, 248 Ga. at 309(4b), 282 S.E.2d 896. Now that the doctrine has been codified, judicial intervention to invalidate it on the grounds that interspousal immunity and the policy concerns underlying it are "antiquated" would clearly be improper. Furthermore, because that codification included the applicability of interspousal immunity doctrine to third-party actions, it would be equally inappropriate for this court to decide, on policy grounds, that the doctrine does not apply to bar third-party claims for indemnity or contribution from a plaintiff's spouse.

2. Appellees also argue that, even if the interspousal immunity doctrine bars third-party actions as a general matter, it should not bar appellees' third-party action here because the purposes of the doctrine do not apply to the facts of this case. In reaffirming the validity of interspousal immunity as recently as 1991, however, we ruled that only in case...