Mieure v. MooreMieure v. Moore
The defendants, as counter-plaintiffs and third party plaintiffs, appeal from an order entered in an automobile personаl 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 appеalable 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 contribution
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 Mоore 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 doсtrine of family immunity precluded contribution.
It is well established in Florida, that spоuses may not sue each other nor may children sue their parents fоr tort. Orefice v. Albert, 237 So.2d 142 (Fla. 1970).
Under the provisions of
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 tоrtfeasor 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 сhildren cannot assert a claim against him, Moore is not a joint tortfеasor with the defendants. Since common liability between Moore аnd the defendants is lacking, and this is essential to the right of contribution, the defеndants have no right of contribution from Moore. The action taken by the trial court was correct.
In view of the recent developmеnts in the tort field, the abrogation of contributory negligence, the adоption of comparative negligence, the enactment оf 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 аpportioned among those whose fault contributed to the event, as well as providing for contribution among joint tortfeasors. 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.