Waite v. Waite, 89-868

• Decision Date: 28 May 1991
• Docket Number: No. 89-868,89-868
• Parties: Joyce WAITE, Appellant, v. Beres WAITE, Appellee. 593 So.2d 222, 16 Fla. L. Week. D1433, 17 Fla. L. Week. D452
• Court: Florida District Court of Appeals

Page 222

593 So.2d 222

Joyce WAITE, Appellant, v. Beres WAITE, Appellee.

No. 89-868.

593 So.2d 222, 16 Fla. L. Week. D1433, 17 Fla. L. Week. D452

District Court of Appeal of Florida Third District.

May 28, 1991.

On Motion for Rehearing and Rehearing En Banc Feb. 11,

1992.

Touby, Smith, DeMahy & Drake, and Kenneth R. Drake, Miami, for appellant.

Parenti & Falk, and James C. Blecke, Miami, for appellee.

Before BASKIN, LEVY and GERSTEN, JJ.

BASKIN, Judge.

Joyce Waite appeals a final summary judgment entered in favor of Beres Waite, her former husband, in an action she filed to recover damages for assault, battery, and negligence. We reverse.

At the time of the incident giving rise to Mrs. Waite's lawsuit against Mr. Waite, the parties were husband and wife. Without provocation, Mr. Waite attacked Mrs. Waite with a machete, striking her repeatedly, and causing severe and permanent injuries. In her affidavit, Mrs. Waite stated that she "suffered a compound fracture completely through [her] left tibia, a compound fracture of [her] left fibula, and a slicing fracture through [her] left ulna. The lower portion of [her] left leg was nearly hacked off." (Emphasis in original). During the episode Mr. Waite also attacked several members of Mrs. Waite's family with the machete. He was convicted of attempted murder, aggravated battery, and aggravated assault. Some time later, the parties were divorced. Subsequently, Mrs. Waite filed this action.

Mr. Waite, through his homeowner's insurer, filed a motion for summary judgment, arguing that his former wife's lawsuit was barred by the doctrine of interspousal tort immunity because the parties were married at the time of the attack. The trial court agreed and entered the judgment under review.

In Sturiano v. Brooks, 523 So.2d 1126 (Fla.1988), the Florida Supreme Court receded from a long line of cases when it held that the doctrine of interspousal tort immunity is abrogated to the extent of liability insurance where traditional policy considerations for maintaining the doctrine do not exist. Mrs. Sturiano was injured when the car in which she was being driven by Mr. Sturiano struck a tree. Mr. Sturiano died as a consequence of the accident. Mrs. Sturiano filed a lawsuit against her husband's estate to recover damages resulting from his negligence. In holding that the interspousal tort immunity doctrine did not bar Mrs. Sturiano's claim, the court stated that "[a]ctions between spouses must be barred when the policy reasons for maintaining the doctrine exist, such as the fear of disruption of the family or other marital discord, or the possibility of fraud or collusion."

                Sturiano, 523 So.2d at 1128.   The court decided, however, that in the absence of such policy considerations the interspousal immunity doctrine is abrogated to the extent of available insurance.  Sturiano
                

When the Florida Supreme Court stated, "the common law unity concept is no longer a valid justification for the doctrine of interspousal immunity," Sturiano, 523 So.2d at 1128, it recognized marital partners' increased capacity to sue each other. The court's reasoning, in refusing to apply the doctrine of interspousal tort immunity as a bar to Mrs. Sturiano's suit, is applicable to the case before us.

Here, the claim would neither create disharmony nor support collusion. Barring Mrs. Waite's action will not preserve or promote Waite family harmony. Mr. Waite's egregious conduct ¹ was so extreme that his victim would be unlikely to conspire with him for the purpose of defrauding an insurance company. Furthermore, there has been no suggestion of collusion in the record. Thus, the policy reasons in support of the doctrine do not exist.

Although we recognize that in the past an injured spouse was required to seek compensation in the dissolution proceeding, Hill v. Hill, 415 So.2d 20 (Fla.1982); Roberts v. Roberts, 414 So.2d 190 (Fla.1982), we question whether that rule remains viable after Sturiano. ² Appellee argues that the earlier case of West v. West, 414 So.2d 189 (Fla.1982), bars Mrs. Waite's action. Mrs. West alleged that she sustained a triple fracture of her left ankle when her husband intentionally threw her to the floor. West, 414 So.2d at 189. The West court held that a wife could not bring a post-dissolution suit against her former husband for personal injuries caused by his intentional tort on the ground that the lawsuit was barred by the doctrine of interspousal tort immunity. West, 414 So.2d at 190. The subsequent Sturiano decision abrogating immunity to the extent of insurance coverage undermines appellee's argument.

We find no legal impediment to holding that Mrs. Waite enjoys no lesser status before the court than do the other injured family members and may recover to the extent of available insurance. ³ The intentional tort was so extreme that it eradicated the policy considerations that might justify the barring of claims. ⁴ The Sturiano decision abrogated immunity to the extent of insurance coverage in cases lacking the policy considerations it set forth.

Finally, we note that the common law bar to interspousal intentional tort claims Applying the Supreme Court's reasoning in Sturiano, we reverse the final summary judgment and remand for further proceedings.

                reiterated in West, has been superceded by section 741.235, Florida Statutes (1985), in actions seeking damages for the intentional tort of battery. 5  A statutory enactment "supersedes the common law and, therefore, abrogates common-law defenses in situations covered by the statute."  Kilpatrick v. Sklar, 548 So.2d 215, 216 (Fla.1989);  Shands Teaching Hosp. & Clinics, Inc. v. Smith, 497 So.2d 644 (Fla.1986);  Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla.1984);  cf. Dressler v. Tubbs, 435 So.2d 792 (Fla.1983).   The statute delineates Florida's public policy abrogating interspousal tort immunity in actions for battery.   It is clear that West no longer bars actions predicated on battery claims in cases that post-date the statute.   Because Mrs. Waite's claim predated the statute, she cannot enjoy its benefits.   However, today the tort of battery is entirely outside the former bar of interspousal tort immunity
                

Reversed and remanded.

LEVY, J., concurs.

GERSTEN, Judge.

I respectfully dissent.

I. BASIS FOR DISSENT

Fealty fuels the passion of this dissent. The majority, supplanting its opinion for that of the Florida Supreme Court, reverses a summary judgment which was, as a matter of law, correct. Therefore, because in my heart I am committed to the law, I submit that this court should follow the law, affirm the summary judgment, and certify the question to the Florida Supreme Court.

The central issue of this appeal concerns the doctrine of interspousal immunity. The facts in this case compel the abrogation of this doctrine. However, it is not within the power, province, or purview of this appellate court to reverse the Florida Supreme Court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

In applying the inflexible doctrine of interspousal immunity to the facts of this case, one is left with a sense of dismay; a lingering feeling that our basic concepts of fairness and what is right have been stricken by the fetid touch of an archaic doctrine. In spite of multiple attacks, this doctrine exists.

II.

HISTORICAL ANALYSIS OF THE DOCTRINE OF INTERSPOUSAL IMMUNITY

A. BRIEF ORIGIN

The concept that a husband and wife are immune from claims against each other can be said to have its origins in the ancient biblical concept that, upon marriage, the husband and wife became one. ¹ This concept was incorporated into English common law where the wife was considered to have merged into the husband, and, as part of him, could not contract with him or bring an action against him:

By marriage, the husband and wife are one person in law: that is, the very being or existence of the woman is suspended during marriage, or at least is incorporated 1 W. Blackstone, Commentaries * 442.

and consolidated into that of the husband....

This fiction of marital unity was considered to outlive the marriage and to exist even after divorce. See Phillips v. Barnet, 1 Q.B.D. 436 (1876) (where a former wife brought an action against her former husband for assault and battery which occurred during the period of coverture).

Like many other common law rules, the doctrine of interspousal immunity was also incorporated into American case law. In one of the earliest cases, the Supreme Judicial Court of Maine ruled that the doctrine of interspousal immunity barred a former wife from suing her former husband for an assault and battery, which occurred during the marriage. The court stated:

Divorce cannot make that cause of action which was not a cause of action before divorce. The legal character of an act of violence caused by husband upon wife and of the consequences that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any.

Abbott v. Abbott, 67 Me. 304, 306 (1877).

Interspousal immunity was incorporated into Florida law in 1829, by the adoption of all common and statutory law of England. See Sec. 2.01, Fla.Stat. (1989).

B. THE EMANCIPATION ACTS

Through a series of legislative acts, commonly referred to as emancipation acts, the rights of married women increased significantly. These acts ² legalized the individual, separate holding of property by married women. By liberally construing these emancipation acts, courts in a number of states chipped away at the interspousal immunity doctrine. ³

In 1950, the Florida Supreme Court considered the effect of Florida's emancipation act on the interspousal immunity doctrine. In Corren v. Corren, 47 So.2d 774 (Fla.1950), the court rejected the argument that Florida's emancipation act destroyed the fictional unity of marriage and explained:

[T]he so-called emancipation act did not so affect the marriage...