Paoli v. Shor, No. 76--504

• Court: Court of Appeal of Florida (US)
• Writing for the Court: DAUKSCH; MAGER; ALDERMAN; MAGER; ALDERMAN
• Citation: 345 So.2d 789
• Parties: Gerald PAOLI et al., Appellants, v. Minnie Berger SHOR et al., Appellees.
• Docket Number: No. 76--504
• Decision Date: 15 April 1977

Page 789

345 So.2d 789 Gerald PAOLI et al., Appellants,
v.
Minnie Berger SHOR et al., Appellees. No. 76--504. District Court of Appeal of Florida, Fourth District. April 15, 1977.
Rehearing Denied June 6, 1977.

Thomas F. Martin and Henry Burnett, of Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami, for appellants.

Marjorie D. Gadarian, of Jones, Paine & Foster, P.A., West Palm Beach, for appellees.

DAUKSCH, Judge.

This is a personal injury case wherein Appellant was the Plaintiff seeking contribution from the Appellee as a joint tort-feasor as defined in Section 768.31, Florida Statutes (Supp.1976).

The facts of the case bring us squarely in the face of the common-law doctrine of interspousal immunity which says neither a husband nor a wife can sue the other. See Webster v. Snyder, 103 Fla. 1131, 138 So. 755 (1932) (especially dissent).

When the joint tortfeasor statute and the interspousal immunity doctrine are read together and we consider the case of Mieure v. Moore, 330 So.2d 546 (Fla.1st DCA 1976), we are involved in a real conflict situation. We have considered the fact that no Florida Supreme Court case on point is extant and are ever mindful of the admonitions in Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Briefly stated Shor was the operator of a motor vehicle occupied by her husband who was injured as a result of an accident caused by Paoli and Shor. Shor's husband

Page 790

sued Paoli for damages and collected. Now Paoli seeks contribution from Shor as a joint tortfeasor. Shor defends on interspousal immunity. The trial court entered a Judgment on the pleadings against Paoli. We reverse.

The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury.

In the case at bar it was determined that both Paoli and Shor caused the injury. Shor's husband collected 100% Of his damages from Paoli. To say that Shor doesn't have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.

Because of the obvious conflict of this opinion with that of the 1st District Court of Appeal in Mieure v. Moore, 330 So.2d 546 (Fla.1st DCA 1976) and the frequency with which this question has arisen and will continue to come before the courts of our state we certify to the Supreme Court of Florida the following determinative question passed upon by this opinion as being of great public interest:

DOES THE COMMON-LAW DOCTRINE OF INTERSPOUSAL IMMUNITY CONTROL OVER THE UNIFORM CONTRIBUTION AMONG JOINT TORTFEASORS ACT (75--108 LAWS OF FLORIDA, SECTION 768.31, FLORIDA STATUTES) TO PREVENT ONE TORTFEASOR FROM SEEKING A CONTRIBUTION FROM ANOTHER TORTFEASOR WHEN THE OTHER TORTFEASOR IS THE SPOUSE OF THE INJURED PERSON WHO RECEIVED DAMAGES FROM THE FIRST TORTFEASOR? ¹

REVERSED and REMANDED for further proceedings not inconsistent herewith.

MAGER, C.J., concurs specially, with opinion.

ALDERMAN, J., dissents, with opinion.

MAGER, Chief Judge, concurring specially:

The reasons ably expressed by the author of the majority opinion, with which I concur,...