This is a petition for review of an opinion and decision of the Court of Appeals, Division Two,
We consider only one quеstion on review, and that is whether a divorced spouse may, after a divorce, sue his former spouse for a negligent tort committed during the marriage.
The facts nеcessary for a determination of the question before us are quoted in part from the opinion of the Court of Appeals as follows. “On May 27, 1972, appellаnt, while a passenger in an automobile driven by appellee, was seriously injured in an automobile accident caused by appellee’s negligencе. Although married at the time of the accident, apparently they were not happy as they had separated one month before and appellеe had consulted an attorney about a divorce. The accident did not restore connubial bliss and on September 1, 1972, they were divorced. Appelleе remarried three weeks after the divorce. Appellant filed suit against appellee on October 17, 1972, to recover damages for his injuries sustained priоr to divorce.”
In Schwartz v. Schwartz,
“ * * * As recently as 1968 the Arizona Supreme Court observed in Schwartz v. Schwartz,103 Ariz. 562 ,447 P.2d 254 (1968), ‘Arizona has adhered to the common law position that interspousal tort suits are not permitted.’ 103 Ariz. p. 563, 447 P.2d p. 255. However, an intentional tort inflicted by one spouse on another so clearly destroys the cоncept of unity that the basis for the doctrine is lost.
* * * jfc * *
“We pause briefly to point out the fact that in a community property state such as ours a completе abrogation of inter-spousal tort immunity is fraught with many problems. One which comes to mind immediately is our Arizona Rule that damage for personal injuries to a spouse аre community property. Fox Tucson Theatres Corporation v. Lindsay,47 Ariz. 388 ,56 P.2d 183 (1936). Our sister state of California abrogated the interspousal tort immunity rule only after the legislature had made damages for personal injuries the separate property of the injured person. Self v. Self,58 Cal. 2d 683 ,26 Cal.Rptr. 97 ,376 P.2d 65 (1962); Klein v. Klein,58 Cal.2d 692 ,26 Cal.Rptr. 102 ,376 P.2d 70 (1962). The dissent in Klein, supra, makes sense with his argument that this is a matter much better handled by legislative action on a broad front covering all affected areas *180 of substantive law.”107 Ariz. at 267-268 ,485 P.2d at 1157-1158 ..
Our holding in Windauer, supra, however, was carefully limited to the fаcts of that case, a case of an intentional as opposed to a negligent tort.
More recently, in Huebner v. Deuchle,
“At the common law there could be no such thing as a tort obligation between husband and wife, and in no event could there be a suit by the one against the other to enforce it. 1 Harper and James, Law of Torts, § 8.10. The common law, so far as it is not reрugnant to ’ the Constitution of the United States, the constitution or laws of this state, or established customs of the people of this state, was adopted by the Legislature and is ‘the rule of decision in all courts of this state.’ A.R.S. § 1-201. . While we recognize that there are courts which have enlarged their wrongful death acts by judicial decision to include interspousal suits, we think that the abolishment of immunity from suit should be predicated only upon clear and unequivocal legislative language. Cf. Saunders v. Hill [Del.]202 A.2d 807 (1964).”109 Ariz. at 550 ,514 P.2d at 471 .
The Court of Appeals, in holding as it did, reasoned that “the facts of the [instant] case
sub judice,
are more akin to Windauer v. O’Connor, supra, and can be decided without violencе to
Schwartz.”
“* * * Appellee claims that Windauer is distinguishable because the tort was intentional. We do not believe any distinction can be made between an intentional or negligent tort. The fact that the tort was intentional in Windauer was a make-weight but was not the touchstone of the decision. The real key to Windauer is that when the reasons for the disability to sue fail the tort beсomes actionable.”21 Ariz.App. at 341 ,519 P.2d at 194 .
We are constrained to disagree with the appellate court’s conclusion that there is no distinction between an intentional and a negligent tort. We further disagree with the inference of the Court of Appeals that the reasons for interspousal tort immunity exist only when there is a marital status tо protect.
Although there are good and for some courts persuasive reasons why the doctrine of interspousal tort immunity should be abolished by court actiоn, .there are also good and for this court at least, persuasive reasons why the doctrine should be retained. Among those are: (1) that tort suits between spouses would disrupt marital harmony; (2) that there would be a danger of fraud or collusion where the tort is covered by insurance; and (3) that the tortfeasor would share in the proceeds of a judgment, and thus benefit from his wrong. Windauer v. O’Connor, supra. See generally, Prosser, Torts (4th ed.), Ch. 23.
An intentional tort committed by a spouse upon the person of the other is in itself some evidence of an unharmonious marital relation, and obviously, once the parties are divorced, there is no longer a marital rеlationship to protect and preserve. A negligent tort, on the other hand, is no such evidence of disharmony between the spouses. While, in the instant case, thеre was no longer a marital relationship to preserve at the time suit was brought, appellee makes a persuasive argument that were divorce tо be a prerequisite to maintaining an action for negligence, parties *181 might well be encouraged to obtain fraudulent divorces under our new no-fault divorcе laws.
Also, intentional torts are not generally, if ever, covered by insurance, so the second argument in favor of the immunity was inapplicable to the situation in Wiridauer, supra. On the other hand, very many negligent torts are covered by insurance, and so the danger of fraud and collusion would still exist were we to extend the holding of Windauer to include actions for negligent torts.
Finally, since we held in Windauer that the cause of action for the intentional tort did not arise until the divorce, the proсeeds of any judgment would be the separate property of the injured party.
(But see
Kenyon v. Kenyon,
We are of the opinion that any further erosion of the doctrine of inter-spousal tort immunity, short of complete abrоgation, would create more problems that it would solve. Although we are not unaware of the many countervailing arguments in favor of complete abrogаtion, we still feel that such a measure should be accomplished by legislative action rather than through judicial fiat. See also Huebner v. Deuchle, supra.
Decision of the Court of Appeals is vacated; judgment of the Superior Court is affirmed.