Joyce WAITE, Appellant,
v.
Beres WAITE, Appellee.
District Court of Appeal of Florida, Third District.
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.
On Motion for Rehearing and Rehearing En Banc February 11, 1992.
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,
When the Florida Supreme Court stated, "the common law unity concept is no longer a valid justification for the doctrine of interspousal immunity," Sturiano,
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,
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, *224 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,
Applying the Supreme Court's reasoning in Sturiano, we reverse the final summary judgment and remand for further proceedings.
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,
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 *225 and consolidated into that of the husband... .
1 W. Blackstone, Commentaries [*] 442.
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,
Interspousal immunity was incorporated into Florida law in 1829, by the adoption of all common and statutory law of England. See § 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,
[T]he so-called emancipation act did not so affect the marriage relationship that the husband and wife were thenceforward permitted to go their separate ways, but instead were still mates residing in a common home, each making in his own way a contribution to the marriage venture.
As we have already commented, this fundamental relationship does not seem directly affected by the provisions of organic and statutory law with reference to the woman's dominion over her own property... .
Corren,
The court refused to modify or abrogate the common law doctrine, reasoning that any change should be accomplished through legislative enactment. Corren,
III.
MOVEMENT TOWARD ABROGATION OF INTERSPOUSAL IMMUNITY AND ITS
IMPACT IN FLORIDA
Thirty-two states have totally abolished interspousal immunity and fifteen states have abrogated it for intentional and/or negligent torts.[4] Further, section 895F of *226 the Restatement (Second) of Torts (1979), repudiates the doctrine.
In Florida, section 708.08(1), Florida Statutes (1989), originally passed in 1943, empowered a married woman to:
[T]ake charge of and manage and control her separate property, to contract and to be contracted with, to sue and be sued, to sell, convey, transfer, mortgage, use, and pledge her real and personal property and to make, execute, and deliver instruments of every character without the joinder or consent of her husband in all respects as fully as if she were unmarried.
A married woman in Florida cannot only contract; she can even contract with her husband. § 708.09, Fla. Stat. (1989). A married woman can also sue her husband to enforce contract and property claims. Dodson v. National Title Insurance Co.,
Further, since October 1, 1985, the doctrine no longer applied to the intentional tort of battery.[5] § 741.235, Fla. Stat. (1989).
Nevertheless, Florida continues to apply the doctrine.[6]Raisen v. Raisen,
In spite of Florida's adherence to these policy considerations, many other jurisdictions have rejected them as illusory and ineffectual. In one of the latest cases abrogating the doctrine, the Mississippi Supreme Court considered the case of a wife who was assaulted and battered by her husband. Burns v. Burns,
The idea that maintenance of interspousal immunity will promote the public interest in domestic tranquility is wholly illusory. If one spouse commits against the other an act which, but for the immunity, would constitute a tort, the desired state of matrimonial tranquility is necessarily destroyed. But common sense suggests the peace is destroyed by the act of the offending spouse, not the lawsuit filed by the other. Beyond that, maintenance of the immunity surely cannot prevent injured spouses from harboring ill will and anger. Seen in this light, our traditional rule of interspousal immunity appears incapable of achieving the end claimed for it. Instead it leaves injured spouses without adequate or complete remedies. It is also noted that remedies incident to divorce and criminal prosecution are not adequate for the protection sought in this type of intentional tort.
Burns,
It would be a sad commentary on the law if we were to admit that the judicial processes are so ineffective that we must deny relief to a person otherwise entitled simply because in some future case a litigant may be guilty of fraud or collusion. Once that concept were accepted, then all causes of action should be abolished. Our legal system is not that ineffectual.
Burns,
In Florida, the doctrine has not always precluded recovery. In Gaston v. Pittman,
Similarly, in other actions between spouses, the Florida Supreme Court has receded from the common law rule and permitted the action to proceed. See Dressler v. Tubbs,
Although grounded on a statutory exception to the doctrine, Burgess v. Burgess,
[The spouse's behavior,] by nature, undermines the faith and trust upon which the institution of marriage is founded. A rule of law which leaves such repugnant behavior unsanctioned can hardly be said to preserve the marital unit.
Burgess,
The facts of this case are more repugnant than the facts in Burgess. How much more can an intentional life-threatening attack upon the wife undermine the faith and trust of marriage?
IV.
FLAWS IN THE MAJORITY OPINION
Because the protection of the new statute is unavailable to appellant, this court must follow the law as it existed at the time of the incident. The law at that time precludes recovery by appellant now.
The case law addressing interspousal immunity has developed along two distinct lines. One line deals with negligence. In these cases, i.e. automobile accident cases, the Florida Supreme Court has receded from interspousal immunity and permitted one spouse to recover for another spouse's negligence.
The other line of cases concerns intentional torts. In intentional tort cases, the Florida Supreme Court has steadfastly maintained interspousal immunity, holding that proper recourse is recovery through dissolution proceedings.
The majority relies on Sturiano v. Brooks,
The majority cites Sturiano for the proposition that the doctrine is no longer valid. However, in Sturiano, the Florida Supreme Court merely did away with the application of the long-standing concept of the fiction of marital unity, and ruled that the doctrine of interspousal immunity did not bar the action. The court stated:
The doctrine of interspousal tort immunity has its origins in the fiction that the marriage of two people creates a unified entity of one singular person [footnote omitted]. The reasoning was that a person or entity cannot sue itself. Despite dicta to the contrary in prior opinions of this Court, we believe that this outdated policy consideration can no longer be regarded as a valid reason to bar actions. We no longer live in an age where the wife is subservient to her husband.
... .
Thus "the common law unity concept is no longer a valid justification for the doctrine of interspousal immunity."
Sturiano,
Several other reasons to bar interspousal actions, however, still exist under certain conditions. Domestic tranquility, peace and harmony in the family unit, and the possibilities of fraud or collusion are the most frequently cited policy reasons for *228 maintaining interspousal immunity. In cases where these considerations apply, the doctrine of interspousal immunity shall continue to bar actions between spouses.
Sturiano,
Like Sturiano,
In Sturiano, the Florida Supreme Court held:
[U]nder the circumstances of this case, we hold that when no such policy considerations exist, the doctrine of interspousal tort immunity is waived to the extent of applicable liability insurance.
Sturiano,
I would like to reach the same result as the majority in this case. However, precedent, directly on point, precludes that result. Hill v. Hill,
The majority questions the viability of these cases after the decision in Sturiano. Yet, Sturiano did not address Hill, West, and Roberts. Nothing in Sturiano abrogates the holdings of these cases. Sturiano involved an automobile negligence case. Hill, West, and Roberts involved intentional torts committed by one spouse against the other. Like in this case, the former wife in West was seriously injured by the former husband.
In West,
Whether a former spouse can maintain an action in tort against the other spouse for an intentional tort allegedly committed during marriage where such marriage has since been dissolved by divorce.
Citing Hill,
Sturiano did not abrogate the interspousal immunity doctrine for intentional torts. The court, in Sturiano, reasoned that upon the death of a spouse, all policy considerations regarding marital disharmony and collusion no longer existed in an automobile personal injury action.
A simple analysis of post-Sturiano cases furnishes further proof that Sturiano does not mandate the majority's result. Four cases decided after Sturiano v. Brooks considered whether to apply the doctrine. In those cases dealing with negligent torts, the spouse was permitted recovery. See Government Employees Insurance Company v. Fitzgibbon,
*229 However, the line of cases that addresses recovery by, or from, a spouse, former spouse, or deceased spouse, based on a claim of intentional tort, unequivocally applied the doctrine. Thus, in Treciak v. Treciak,
I agree with our sister court's conclusion in Treciak, a post-Sturiano case:
Initially, the application of the doctrine of interspousal immunity to the facts of this case may seem to render a harsh and unjust result. However we recognize that the Florida Supreme Court has consistently refused to chip away at this doctrine even in hard cases. We leave to them, as we must, the decision of when to adopt a [sic] overall change in philosophy and substantial modification of this difficult area of the law.
Treciak v. Treciak,
V.
CONCLUSION
Because no facts can be more compelling than the facts in this case, because the doctrine has been eroded, because the legislature has expressly shown its intent to diminish the doctrine by permitting actions for the intentional tort of battery, and, finally, because I believe we would be usurping the power of the Florida Supreme Court and the Florida legislature to reach the majority's result, I would certify the following question as one of great public importance:
WHETHER A FORMER SPOUSE CAN MAINTAIN AN ACTION AGAINST THE OTHER FORMER SPOUSE FOR AN INTENTIONAL TORT COMMITTED DURING THE MARRIAGE WHERE SUCH MARRIAGE HAS SINCE BEEN DISSOLVED BY DIVORCE AND NO OTHER POLICY REASONS WOULD PREVENT RECOVERY?
VI.
EPILOGUE
The concept that a husband should not be permitted to abuse his wife is, by far, not a novel one. As early as the thirteenth-century, Jewish law stated:
A man is forbidden to beat his wife; and is liable, moreover, for any injuries suffered by her.[8]
My hope is that by responding in the affirmative to the question, the Florida Supreme Court would allow us to return to the more enlightened attitudes of thirteenth-century Talmudic law, regarding this issue, and permit this woman recovery.
APPENDIX
STATES TOTALLY ABROGATING INTERSPOUSAL IMMUNITY OR PARTIALLY ABROGATING IT AS TO INTENTIONAL AND/OR NEGLIGENT TORTS
Rule fully abrogated:
Alabama 1931 Penton v. Penton 223 Al. 282,
135 So. 481
Alaska 1963 Cramer v. Cramer 379 P.2d 95
Arkansas 1957 Leach v. Leach 227 Ark. 599 ,
300 S.W.2d 15
*230 California 1962 Klein v. Klein58 Cal.2d 692 ,26 Cal. Rptr. 102 ,376 P.2d 70 Connecticut 1914 Brown v. Brown88 Conn. 42 ,89 A. 889 Indiana 1972 Brooks v. Robinson259 Ind. 16 ,284 N.E.2d 794 Kansas 1987 Flagg v. Loy241 Kan. 216 ,734 P.2d 1183 Kentucky 1953 Brown v. Gosser262 S.W.2d 480 Maine 1980 MacDonald v. MacDonald412 A.2d 71 Michigan 1971 Hosko v. Hosko385 Mich. 39 ,187 N.W.2d 236 Minnesota 1969 Beaudette v. Frana285 Minn. 366 ,173 N.W.2d 416 Mississippi 1988 Burns v. Burns518 So.2d 1205 Montana 1986 Noone v. Fink222 Mont. 273 ,721 P.2d 1275 Nebraska 1979 Imig v. March203 Neb. 537 ,279 N.W.2d 382 New Hampshire 1915 Gilman v. Gilman78 N.H. 4 ,95 A. 657 New Jersey 1978 Merenoff v. Merenoff76 N.J. 535 ,388 A.2d 951 New Mexico 1975 Maestas v. Overton87 N.M. 213 ,531 P.2d 947 New York 1974 State Farm Mut. Auto Ins. Co. v. Westlake35 N.Y.2d 587 ,364 N.Y.S.2d 482 ,324 N.E.2d 137 North Carolina 1920 Crowell v. Crowell180 N.C. 516 ,105 S.E. 206 North Dakota 1932 Fitzmaurice v. Fitzmaurice62 N.D. 191 ,242 N.W. 526 Ohio 1985 Shearer v. Shearer18 Ohio St.3d 94 ,480 N.E.2d 388 Oklahoma 1938 Courtney v. Courtney184 Okla. 395 ,87 P.2d 660 Pennsylvania 1981 Hack v. Hack495 Pa. 300 ,433 A.2d 859 South Carolina 1932 Pardue v. Pardue167 S.C. 129 ,166 S.E. 101 South Dakota 1941 Scotvold v. Scotvold68 S.D. 53 ,298 N.W. 266 Tennessee 1983 Davis v. Davis657 S.W.2d 753 Texas 1987 Price v. Price732 S.W.2d 316 Utah 1980 Stoker v. Stoker616 P.2d 590 Washington 1972 Freehe v. Freehe81 Wash.2d 183 ,500 P.2d 771 West Virginia 1978 Coffindaffer v.161 W. Va. 557 , Coffindaffer244 S.E.2d 338 Wisconsin 1926 Wait v. Pierce191 Wis. 202 ,209 N.W. 475 Wyoming 1987 Tader v. Tader737 P.2d 1065 Rule abrogated as to intentional torts: Idaho 1949 Lorang v. Hays69 Idaho 440 ,209 P.2d 733 Kansas 1982 Stevens v. Stevens231 Kan. 726 ,647 P.2d 1346 Missouri 1986 Townsend v. Townsend708 S.W.2d 646 Oregon 1955 Apitz v. Dames205 Or. 242 ,287 P.2d 585
*231 Rule of immunity imposed by statute, but not applicable to intentional torts resulting in physical harm: Illinois Ch. 40, § 1001, Ill. Ann. Stat. (1987 Supp.) Rule abrogated for outrageous intentional torts: Maryland 1978 Lusby v. Lusby283 Md. 334 ,390 A.2d 77 Rule abrogated for intentional tort of battery: Florida § 741.235, Fla. Stat. (1989) Rule abrogated for cases sounding in negligence: Maryland 1983 Boblitz v. Boblitz296 Md. 242 ,462 A.2d 506 Missouri 1986 S.A.V. v. K.G.V.708 S.W.2d 651 Oregon 1988 Heino v. Halper306 Or. 347 ,759 P.2d 253 Rule abrogated for all personal injury actions: Iowa 1979 Shook v. Crabb281 N.W.2d 616 Rule abrogated for vehicular torts: Arizona 1982 Fernandez v. Romo132 Ariz. 447 ,646 P.2d 878 Colorado 1935 Rains v. Rains97 Colo. 19 ,46 P.2d 740 Idaho 1975 Rogers v. Yellowstone Park Co.97 Idaho 14 ,539 P.2d 566 Massachusetts 1976 Lewis v. Lewis370 Mass. 619 ,351 N.E.2d 526 Nevada 1974 Rupert v. Stienne90 Nev. 397 ,528 P.2d 1013 Rhode Island 1978 Digby v. Digby120 R.I. 299 ,388 A.2d 1 Vermont 1973 Richard v. Richard131 Vt. 98 ,300 A.2d 637 Virginia 1971 Surratt v. Thompson212 Va. 191 ,183 S.E.2d 200
PER CURIAM.
The motions for rehearing and rehearing en banc are denied. We certify the following question as one of great public importance:
WHETHER STURIANO v. BROOKS,523 So.2d 1126 (Fla. 1988), PERMITS A CLAIM BY A FORMER SPOUSE FOR BATTERY AGAINST THE OTHER SPOUSE, COMMITTED DURING THE MARRIAGE, AND PRIOR TO THE EFFECTIVE DATE OF SECTION 741.235, FLORIDA STATUTES (1985), WHERE THE CLAIM IS LIMITED TO THE EXTENT OF INSURANCE COVERAGE, THE SPOUSE WAS CONVICTED OF ATTEMPTED FIRST DEGREE MURDER STEMMING FROM THE BATTERY, AND THE EGREGIOUS NATURE OF THE INJURIES DEMONSTRATES THAT THE POLICY CONSIDERATIONS ENUNCIATED IN STURIANO "FEAR OF DISRUPTION OF THE FAMILY OR OTHER MARITAL DISCORD, OR THE POSSIBILITY OF FRAUD OR COLLUSION" WERE NOT PRESENT WHEN THE BATTERY WAS COMMITTED?
GERSTEN, Judge.
I respectfully dissent.
Based upon the reasoning set forth in my dissent of May 28, 1991, I must dissent from the denial of the motion for rehearing and rehearing en banc. Further, the certified question, as framed, fails to properly present the issue of whether interspousal tort immunity prevented recovery in this *232 action. Rather, the certified question limits the issue presented to an application of Sturiano v. Brooks,
Instead, I urge the Florida Supreme Court to address the question presented in my dissent. I implore the Supreme Court, as would a supplicant, to unequivocally abolish this insidious doctrine.
NOTES
[1] In her complaint Mrs. Waite describes the conduct as "abusive, malicious and committed with wreckless [sic] abandon[,]" and as having been "attributed to mental delusion, insanity or incompetency."
[2] We are unable to subscribe to the interpretation of post-Sturiano cases in the dissent: Mosbarger v. Mosbarger,
In Fitzgibbon, the court did not permit the spouse to recover from her deceased husband's insurer because the policy contained a family exclusion clause. In Lambert, the court permitted the wife to recover damages from the owner of the vehicle negligently driven by her husband. The court did not address Sturiano. In neither Fitzgibbon nor Lambert did the complainant recover from the spouse.
[3] The other injured persons entered settlement agreements in their lawsuits against Mr. Waite.
[4] The Supreme Court has already distinguished these types of cases on their facts. In Sturiano, the estate's guardian ad litem argued that under the holding of Snowten v. United States Fidelity & Guar. Co.,
[5] In 1985, the Florida legislature adopted Section 741.235, Florida Statutes. Laws 1985, ch. 85-328, § 1. That section provides: "The common law doctrine of interspousal tort immunity is hereby abrogated with regard to the intentional tort of battery, and the ability of a person to sue another person for the intentional tort of battery shall not be affected by any marital relationship between the persons." The attack on Mrs. Waite occurred prior to the effective date of the statute.
Notes
[1] "Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh." Genesis 2:24.
[2] See, e.g., Ch. 708, Fla. Stat. (1989)
[3] Alabama: Johnson v. Johnson,
[4] See appendix.
[5] Recovery under this statute is unavailable to appellant because the attack occurred in 1984.
[6] Other jurisdictions where interspousal immunity is still applied are: Delaware: Alfree v. Alfree,
[7] In Roberts v. Roberts,
[8] Horowitz, G., The Spirit of Jewish Law (1973) (quoting Rabbi Israel of Krems interpreting Talmudic law based on the rabbinical conferences of the Rhine countries held between 1200 and 1223).