DONALD WITHROW, DARNELL WITHROW AND CAVALIER INSURANCE COMPANY, APPELLANTS,
v.
DORIS T. WOODS, AND GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLEES
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A minor injured in an auto accident sued the drivers and insurers of the other vehicle involved. The trial court granted summary judgment to the defendants based on Florida's contribution statute requiring that a settling tortfeasor's liability be extinguished. The Fifth District reversed, holding that family immunity doctrine prevents contribution claims between parents and children, making a release of the parent unnecessary.
The court held that family immunity doctrine prevents a minor child from suing a parent for tort, and therefore Cavalier was not required to obtain a release from Doris Woods (Vicki's mother) to satisfy the statutory requirement that a joint tortfeasor's liability be extinguished. The doctrine of interspousal immunity's recognition of contribution rights extends logically to parent-child situations.
[1] A minor child cannot sue a parent for tort due to the doctrine of family immunity.
[2] The doctrine of family immunity, which prevents a minor child from suing a parent for tort, is based on the same public policy principles as interspousal immunity.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In the light of the continued vitality of the family immunity doctrine, there was no need for appellants to extinguish the claim of Vicki Woods against her mother, because Vicki could not sue her mother for that tort, so a release would have been meaningless and superfluous.”
Establishes that family immunity doctrine eliminates the need for a release from the parent to satisfy statutory contribution requirements
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Join FLexlaw to unlock all legal intelligenceVicki Woods, a minor passenger, was injured in a collision while riding in a car driven by her mother, Doris T. Woods, insured by GEICO. Vicki sued Da…
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ORFINGER, Judge.
Vicki Woods, a minor, was injured in an automobile accident while riding as a passenger in a car driven by her mother, Doris T. Woods, and insured by Government Employees Insurance Company (GEICO). Through her mother and next friend, she filed suit against Darnell Withrow, as operator, Donald Withrow, as owner, and Cavalier Insurance Company (Cavalier) as insurer of the other vehicle involved in the collision. Withrow and Cavalier filed a counterclaim against Doris T. Woods and GEI-CO alleging that Doris negligently caused the collision, and sought contribution.
During the proceedings, Cavalier paid Vicki $10,000, the full limits of the policy, and secured a release for itself and its insureds. Relying on section 768.31(2)(d), Florida Statutes (1979) 1, Woods and GEICO moved for a summary judgment because the settlement and consequent release had not extinguished their liability as required by that statute. The trial court agreed and entered a summary final judgment which is here appealed. We reverse.
Appellee defends the correctness of the trial court’s ruling based on either of two positions: (1) Since there is no common liability between the tort feasors, there can be no right of contribution, and (2) Since the release given to Withrow and Cavalier did not release Woods, the requirement that the obligation of the joint tort feasor be discharged has not been complied with.
Under the doctrine of family or interspousal immunity, a minor child may not sue a parent nor may one spouse sue the other spouse for tort. Orefice v. Albert, 237 So. 2d 142 (Fla.1970). Interspousal immunity has now been held to provide no bar to an action for contribution against the spouse joint tort feasor. Shor v. Paoli, 353 So. 2d 825 (Fla.1977). There is no logical reason not to extend the application of this principal to parent/child situations because the entire family immunity doctrine arises out of the same principles of public policy. Orefice v. Albert, supra. The holding in Shor, did not affect the continuing vitality of the family immunity doctrine. Raisen v. Raisen, 379 So. 2d 352 (Fla.1979). We realize that one of our sister courts has refused to extend the Shor doctrine to a parent/child situation, 3-M Electric Corporation v. Vigoa, 369 So. 2d 405 (Fla.3d DCA 1979), but we respectfully disagree with the conclusion in that case. It is impossible for us to say that the application of the family immunity doctrine depends on which members of the family are involved. In the light of the continued vitality of the family immunity doctrine, there was no need for appellants to extinguish the claim of Vicki Woods against her mother, because Vicki could not sue her mother for that tort, so a release would have been meaningless and superfluous. Consequently, the summary final judgment was erroneously entered and it is hereby reversed and the cause is remanded for further proceedings consistent herewith.
Pursuant to Rule 9.030(a)(2)(A)(vi), Florida Rules of Appellate Procedure, March 27, 1980, we hereby certify this decision to be in direct conflict with the decision in S-M Electric Corporation v. Vigoa, supra.
REVERSED and REMANDED.
FRANK D. UPCHURCH and SHARP, JJ., concur. . § 768.31(2), Fla.Stat. (1979):
* * * * * *
(d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.
. Both parties have cited as supplementary authority the case of Quest v. Joseph, Case No. 78-2090 (Fla.3d DCA, May 20, 1980) which appears to recede from the Vigoa decision, but we have determined that the opinion is not yet final.
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Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1980)…ion-Family Member, 19 A.L.R.2d 1003 (1951). Moreover, since the Shor rule is based on the principle that all those jointly responsible for a particular injury should bear proportionate liability, there is, as was stated and held in Withrow v. Woods, 386 So. 2d 607 (Fla. 5th DCA 1980), no meaningful distinction between the Raisen interspousal immunity involved in Shor and Florida Farm Bureau and the parent-child relationship, governed by Orefice v. Albert, 237 So. 2d 142 (Fla.1970), as in 3-M and the case at b…
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Woods v. Withrow, 413 So. 2d 1179 (Fla. 1982)…PER CURIAM. This cause is before the Court to review the case of Withrow v. Woods, 386 So. 2d 607 (Fla. 5th DCA 1980). The district court certified that its decision was in direct conflict with 3—M Electric Corp. v. Vigoa, 369 So. 2d 405 (Fla. 3d DCA 1979).1 We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. Vicki Woods, a minor, was a passeng…
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Selfe v. Smith, 397 So. 2d 348 (Fla. 1st DCA 1981)…cts held, no doubt properly so, that Shor v. Paoli, 353 So. 2d 825 (Fla.1977), permits a contribution action against the parent whose negligence contributes to his child’s injury. Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1981); Withrow v. Woods, 386 So. 2d 607 (Fla. 5th DCA 1980). Those courts so held even though they consider that a child cannot sue his parent for negligence. Contra, Ard v. Ard, 395 So. 2d 586 (Fla. 1st DCA 1981). We therefore agree with Quest’s holding that the negligent owner-driver of…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orefice v. Albert, 237 So. 2d 142 (Fla. 1970)
- Raisen v. Raisen, 379 So. 2d 352 (Fla. 1979)
- Shor v. Paoli, 353 So. 2d 825 (Fla. 1977)
- 3-M Elec. Corp. v. Vigoa, 369 So. 2d 405 (Fla. 3d DCA 1979)