Paoli v. Shor, 76--504
| Decision Date | 15 April 1977 |
| Docket Number | No. 76--504,76--504 |
| Citation | 345 So.2d 789 |
| Parties | Gerald PAOLI et al., Appellants, v. Minnie Berger SHOR et al., Appellees. |
| Court | Florida District Court of Appeals |
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.
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 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.
The reasons ably expressed by the author of the majority opinion, with which I concur, are consistent with justice and logic.
In particular, I agree that we need not concern ourselves with the applicability of Hoffman v. Jones, supra, principally because we are here deciding For the first time that the common law doctrine of interspousal immunity does not affect the right to contribution under the Uniform Contribution Among Joint Tortfeasors' Act (75--108 Laws of Florida, Section 768.31, Florida Statutes).
This precise issue was not considered, contemplated, or remotely involved when the Supreme Court decided Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967). In Bencomo, supra, the court was dealing with a direct action by A divorced wife against her former husband for intentional torts allegedly committed During the marriage. Hence, Bencomo is not controlling and the admonition of Hoffman is inapplicable.
Moreover, the underlying rationale of Bencomo, i.e., the recognition of the common law doctrine of the merger or unity of husband and wife, was discarded by the Supreme Court in its later decision in Gates v. Foley, 247 So.2d 40 (Fla.1971), where the court properly observed, at page 44:
'So it is that The unity concept of marriage has in a large part given way to the partner concept whereby a married woman stands as an equal to her husband in the eyes of the law. By giving the wife a Separate equal existence, the law created a new interest in the wife which should not be left unprotected by the courts.
Medieval concepts which have no justification in our present society should be rejected. . . .' (Emphasis added).
Lastly, whatever may have been the intended judicially-created application of the Bencomo rule to contribution situations, it has now been modified by the legislature in the 1975 enactment of the Uniform Contribution Among Joint Tortfeasors' Act. The legislature is presumed to be aware of relevant judicial decisions and undoubtedly was aware of the Bencomo decision when it adopted Chapter 75--108; had it intended to carve out any exception to the applicability of the contribution act it certainly could have done so, but chose not to do so. (See, for example, section 768.31(2)(g), Florida Statutes). The interpretation which this court has given the contribution act serves to promote the express legislative intent (sec. 768.31(6), Florida Statutes).
One of the better dissertations on this subject may be found in the recent decision of the Supreme Court of Rhode Island in Zarrella v. Miller, 217 A.2d 673 (1966). In Zarrella, the Court recognized the Rhode Island rule (similar to Florida rule) that a wife may not maintain a suit against her husband for injuries caused by the latter's negligence. The Court analyzed this rule in light of the adoption of the 'Uniform Contribution Among Tortfeasors' Act', recognizing that a split of authority existed in those jurisdictions which...
To continue reading
Request your trial
-
Montgomery County v. Valk Mfg. Co.
...among unintentional wrongdoers. 11 Four UCATA jurisdictions have allowed contribution despite family immunity. Paoli v. Shor, 345 So.2d 789, 790 (Fla.Dist.Ct.App.1977), aff'd, 353 So.2d 825, 826 (Fla.1977); Campo v. Taboada, 68 Haw. 505, 720 P.2d 181, 183 (1986); Puller v. Puller, 380 Pa. 2......
-
Renfrow v. Gojohn, KCD30659
...2. Jurisdictions still adhering to the doctrine of interspousal immunity, but nevertheless permitting contribution: Paoli v. Shor, 345 So.2d 789 (Fla.App. 1977), aff'd Shor v. Paoli, 353 So.2d 825 (Fla. 1978); Zarrella v. Miller, 100 R.I. 545, 217 A.2d 673 (1966); Bedell v. Reagan, 159 Me. ......
-
Wirth v. City of Highland Park
...separate from the original suit for damages and that equity and judicial fairness demand that contribution be allowed. Paoli v. Shor (Fla.App.1977), 345 So.2d 789 aff'd, Shor v. Paoli (Fla.1977), 353 So.2d 825; Bedell v. Reagan (1963), 159 Me. 292, 192 A.2d 24; Hayon v. Coca Cola Bottling C......
-
Martinez v. Lankster
...This approach was expressly rejected by the Missouri Supreme Court in Maryland Heights Concrete Contractors, supra. In Paoli v. Shor, 345 So.2d 789 (Fla. 4th D.C.A. 1977), affirmed Shor v. Paoli, 353 So.2d 825 (Fla.1977), the court held that a joinder was permissible because it did not cons......