Jeffrey P. Gale, P.A. // Family Immunity in Florida Personal Injury Negligence Cases

Limiting situations that could give rise to (1) disruption of family harmony and (2) fraud or collusion between family members is a legitimate public policy. In this vein, Florida once barred all personal injury negligence actions by one family member against another. In Orefice v. Albert, 237 So.2d 142 (Fla. 1970), a case in which the mother of a child killed in an airplane crash sought recovery in both her and her son’s names from the boy’s father, the Florida Supreme Court stated:

It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources.

237 So.2d at 145.

Parental/child immunity has its origins in an 1891 Mississippi case which based its decision on the importance of “peace of society … [and] the repose of families.” Hewllette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Florida adopted the rule and recognized it in several cases. Orefice v. Albert, 237 So.2d 142 (Fla. 1970)May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla. 1955).

Parental/child immunity was abrogated by the Florida Supreme Court in Ard v. Ard, 414 So.2d 1066 (Fla.1982).

Ard involved a lawsuit brought by a minor child seeking compensation for serious personal injuries caused by the negligence of his mother. The defendants raised the doctrine of parental immunity as a defense. On both conflict and great public importance jurisdiction, the case ended up in the Florida Supreme Court, which decided as follows:

While we reaffirm our adherence to parental/family immunity, we hold that, in a tort action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent’s available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent. (Bold added for emphasis.)

The doctrine of interspousal tort immunity barring actions by one spouse against another has a long and established history in Florida law. See Corren v. Corren, 47 So.2d 774, (Fla. 1950). The doctrine has its origins in the fiction that the marriage of two people creates a unified entity of one singular person. Corren, supra. The reasoning was that a person or entity cannot sue itself. Sturiano v. Brooks, 523 So. 2d 1126, 1128 (Fla. 1988).

In Sturiano v. Brooks, 523 So.2d 1126 (Fla. 1988), the Florida Supreme Court receded from a long line of cases when it held that the doctrine of interspousal tort immunity is abrogated to the extent of liability insurance where traditional policy considerations for maintaining the doctrine do not exist. Given the unique facts of the case, as described below, the holding had a somewhat limited application:

“Here, because the defendant spouse is deceased, the policy reasons for barring the action do not exist. Moreover, in this case, there are no surviving lineal descendents, and thus no one left to be victimized by a disruption of the family unit.”

In Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), the Court went further than it did in Sturiano. Based on its review of legal issues relevant to interspousal immunity since Suriano was issued, the Court found “that there no longer is a sufficient reason warranting a continued adherence to the doctrine of interspousal immunity.” Its reasons:

  • “First, we find no reason to believe that married couples are any more likely to engage in fraudulent conduct against insurers than anyone else. An otherwise meritorious claim should not be foreclosed simply because a person is married to a wrongdoer.”
  • “Second, we do not believe that the types of lawsuits prohibited by the doctrine of interspousal immunity, if allowed, are likely to foster unwarranted marital discord.”
  • “Finally, we note that thirty-two states have abrogated the doctrine of interspousal immunity completely, Waite v. Waite, 593 So.2d 222, 225, 229-31 (Gersten, J., dissenting), leaving Florida in a shrinking minority. The doctrine also has been resoundingly rejected by the single most respected authority on American tort law. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 122, at 902-04 (5th ed. 1984).

Many of these cases arise in the context of motor vehicle accidents. Unfortunately, most auto policies have family exclusions which prevent recovery for personal injuries. In Auto Owners Ins. Co. v. Van Gessel, 665 So. 2d 263 (Fla. 2nd DCA 1995), the court upheld the following exclusionary language (found in two policies):

“Liability coverage [does not apply] to bodily injury to you or any person living in your household and related to you by blood, marriage or adoption.” (Primary policy.)

“We do not cover personal injury to you or a relative.” (Umbrella policy.)

In Mitchell v. State Farm Mut. Auto. Ins. 678 So. 2d 418 (Fla. 5th DCA 1996), the following language exempted family member coverage:

“THERE IS NO COVERAGE…. FOR ANY BODILY INJURY TO … ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD.”

We caution you not to read this blog and decide to forego seeking compensation without first getting the advice of a personal injury lawyer.   

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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