JOE D. MIEURE ET AL., APPELLANTS (DEFENDANTS, COUNTER-PLAINTIFFS AND THIRD-PARTY PLAINTIFFS),
v.
BILLY JOE MOORE ET AL., APPELLEES (PLAINTIFF AND COUNTER-DEFENDANT, AND THIRD-PARTY DEFENDANT)
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Defendants in an automobile personal injury case appealed from an order dismissing their counterclaim and third-party complaint seeking contribution from the plaintiff (Moore), who was the husband and father of the injured parties, and his insurance company. The court affirmed the dismissal, holding that the family immunity doctrine precluded contribution among joint tortfeasors when the tortfeasor is immune from suit by the injured party.
A joint tortfeasor may not seek contribution from another joint tortfeasor who is immune from suit by the injured party due to the family immunity doctrine. Because Moore's wife and minor children cannot assert a claim against him, Moore is not a joint tortfeasor with the defendants, and common liability—essential to the right of contribution—is lacking.
[1] An interlocutory order improperly designated as such may still be considered a full appeal if the order supports a full appeal.
[2] A joint tortfeasor may not seek contribution from another joint tortfeasor who is immune from suit by the injured party due to the family immunity doctrine.
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 majority of jurisdictions where contribution is allowed among joint tortfeasors, contribution is not allowed from a joint tortfeasor who is immune from suit by the injured party, because of the family immunity doctrine.”
Establishes the general rule adopted by the court that family immunity bars contribution rights
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Join FLexlaw to unlock all legal intelligenceBilly Joe Moore was driving an automobile occupied by his wife and three minor children when he collided with the rear of defendants' tractor-trailer,…
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MILLS, Judge.
The defendants, as counter-plaintiffs and third party plaintiffs, appeal from an order entered in an automobile personal injury case dismissing their counterclaim and third party complaint which sought contribution from the plaintiff, as counterdefendant, who was the husband and the father of the other plaintiffs and his liability insurance company as third party defendant.
The appeal here was designated as an interlocutory appeal. But it was improperly designated, because the order appealed is not an order that is appealable under the provisions of Rule 4.2a, Florida Appellate Rules. However, the improper designation does not affect the jurisdiction of this court, because the order appealed does support a full appeal. Mendez v. West Flagler Family Ass’n., Inc., 303 So. 2d 1 (Fla.1975). Therefore, we will consider this case as a full appeal. Shute v. Keystone State Bank, 159 So. 2d 106 (Fla.App. 1st, 1964).
The question raised by this appeal is whether a joint tortfeasor may seek con tribution from the other joint tortfeasor who is the spouse and the parent of the injured parties.
While driving an automobile occupied by his wife and three minor children, Billy Joe Moore ran into the rear of defendants’ tractor-trailer which he alleges was negligently parked. Moore and his family seek damages for their injuries. The defendants filed a counterclaim against Moore and a third party complaint against his liability insurance company alleging that Moore was a joint tortfeasor, and seeking contribution from Moore and his insurance company. Moore and his insurance company moved to dismiss the counterclaim and third party complaint, and the trial court granted the motion on the ground that the doctrine of family immunity precluded contribution.
It is well established in Florida, that spouses may not sue each other nor may children sue their parents for tort. Orefice v. Albert, 237 So. 2d 142 (Fla. 1970).
Under the provisions of Section 768.31, Florida Statutes, referred to as the Uniform Contribution Among Tortfeasors Act, contribution is permitted when two or more persons become jointly or severally liable in tort for the same injury to a person.
Joint tortfeasors are two or more persons jointly and severally liable in tort for the same injury to a person. 34 A.L.R.2d 1108.
In the majority of jurisdictions where contribution is allowed among joint tortfeasors, contribution is not allowed from a joint tortfeasor who is immune from suit by the injured party, because of the family immunity doctrine. 19 A.L.R.2d 1003.
In the case before us, because Moore’s wife and minor children cannot assert a claim against him, Moore is not a joint tortfeasor with the defendants. Since common liability between Moore and the defendants is lacking, and this is essential to the right of contribution, the defendants have no right of contribution from Moore. The action taken by the trial court was correct.
In view of the recent developments in the tort field, the abrogation of contributory negligence, the adoption of comparative negligence, the enactment of .the Uniform Contribution Among Tortfeasors Act, and others, the time may be ripe for the abrogation of the family immunity doctrine. It appears that this would be consistent with the recent development that a loss should be apportioned among those whose fault contributed to the event, as well as providing for contribution among joint tort-feasors. However, we do not have this authority. Only the Supreme Court may overrule this precedent. Hoffman v. Jones, 280 So. 2d 431 (Fla.1973).
AFFIRMED.
BOYER, C. J., and SMITH, J., concur.
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Shor v. Paoli, 353 So. 2d 825 (Fla. 1977)…tfeasor sued the joint tortfeasor and we are ruling in support of that statute.” We agree with the rationale of the District Court of Appeal and find that it has correctly answered the certified question in the negative. Insofar as Mieure v. Moore, 330 So. 2d 546 (Fla. 1st DCA 1976), is inconsistent herewith, it is overruled. Accordingly, we approve the decision of the District Court under review and discharge the writ. It is so ordered. ADKINS, Acting C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concu…
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The Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977)…he times may dictate. Moreover, in reaching the conclusion it did, that court aimed at compliance with the intent of the legislature, just as we do here. We note in passing that, because the decision in Paoli conflicts with that in Mieure v. Moore, 330 So. 2d 546 (Fla. 1st DCA 1976), upholding inter-spousal immunity in the face of the Uniform Act, the question presented has been certified to the supreme court. . § 768.31(2)(f), Fla.Stat. (Supp.1976). . We note that Armor is clearly distinguishable from the…
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Paoli v. Shor, 345 So. 2d 789 (Fla. 4th DCA 1977)…and 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 sta…1 / 3
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- Orefice v. Albert, 237 So. 2d 142 (Fla. 1970)
- Shute v. Keystone State Bank & Mrs. Edward J. Hutson, 159 So. 2d 106 (Fla. 1st DCA 1963)