Ruth RAISEN, Petitioner, v. Philip RAISEN and Insurance Company of North America, Respondents, 379 So. 2d 352

ALDERMAN, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, in Raisen v. Raisen, 370 So.2d 1148 (Fla. 4th DCA 1978). The district court has certified the following question for our consideration: Does the doctrine of interspousal immunity preclude a tort action between husband and wife in all cases or will such an action lie if it is alleged and proven that none of the traditional reasons supporting interspousal immunity are applicable?

Material to the disposition of this cause is the broader question posed by the parties of whether this court should abrogate the doctrine of interspousal immunity in Florida. We conclude that valid policy reasons justifying the retention of the doctrine still exist. Mrs. Raisen sued her husband and his insurer for damages arising out of his operation of an automobile in an allegedly negligent manner so as to cause her injury. She alleged that this suit would not disturb the domestic peace of her home and marriage and that she and her husband have not conspired to promote a fraudulent or collusive lawsuit.

The trial court dismissed the complaint on the basis of interspousal immunity and entered judgment for Mr. Raisen and his insurer. The district court affirmed. Mrs. Raisen urges that we abrogate the common law doctrine of interspousal immunity because the reasons for this rule have ceased to exist. In response, Mr. Raisen and his insurance carrier argue that the underlying justifications for this doctrine retain their vitality.

They contend that with widespread insurance coverage, the probability of collusion and fraud is increased and that, unquestionably, an adversary tort contest between spouses will have an upsetting effect on domestic tranquility. Originally a part of the common law of England, interspousal tort immunity was adopted into the law of Florida in 1829 by the enactment of what is now

section 2.01, Florida Statutes (1977). Corren v. Corren, 47 So.2d 774 (Fla.1950). As a general rule, that part of the common law codified by

section 2.01 should be changed through legislative enactment and not by judicial derasion. Only in very few instances and with great hesitation has this Court modified or abrogated any part of the common law enacted by

section 2.01, and then only where there was a compelling need for change and the reason for the law no longer existed. E. g., Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In Corren v. Corren, we considered the changes that had occurred since 1829 and concluded that the legislature had not intended by any of its enactments to abrogate interspousal tort immunity.

At that time, we admonished the legislature that it would be assuming a grave responsibility if it were, by legislative enactment, to allow each spouse to treat the other as a stranger so far as legal rights are concerned, and we advised that if it should do so, the language proclaiming this revolutionary change should be positive and unambiguous. 47 So.2d at 776. Since our decision in Corren, the legislature has not spoken in positive and unambiguous language to abrogate in-terspousal tort immunity.

Convincing arguments for the continued validity of this law are found in various decisions of this Court over the last thirty years. In Corren, we rejected the argument that the Married Women’s Property Act destroyed the unity of marriage and explained: [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, and we feel that we would have to resort to the illogic to hold that there can be found in any of them the implication even that she might sue her spouse for injuries resulting from the negligent operation of his automobile. 47 So.2d at 775.

Additionally, referring to the marital discord that could result from an embittering and distressing interspousal tort action, we said: When one ponders the effect upon the marriage relationship were each spouse free to sue the other for every real or fancied wrong springing even from pique or inconsequential domestic squabbles, one can imagine what the havoc would be to the tranquility of the home.

Certainly the success of the sacred institution of marriage must depend in large degree upon harmony between the spouses, and the relationship could easily be disrupted and the lives of offspring blighted if bick-erings blossomed into law suits and conjugal disputes into vexatious, if not expensive, litigation. 47 So.2d at 776. Subsequently, in Bencomo v.

Bencomo, 200 So.2d 171 (Fla.1967), we acknowledged the continued validity and soundness of the doctrine, reiterated the justification for its existence, and reaffirmed that, in the absence of a constitutional or statutory provision changing the common law, a wife could not maintain an action against her husband for a personal tort. In Gaston v.

Pittman, 224 So.2d 326 (Fla.1969), we recognized the validity of the public policy arguments supporting the doctrine: that interspousal tort actions disturb domestic tranquility; cause marital discord and divorce; cause fictitious, collusive, and fraudulent claims; cause a rise in liability insurance; and promote trivial actions. Again, in Orefice v. Albert, 237 So.2d 142 (Fla.1970), we acknowledged as the established policy of this state that suits will not be allowed among members of a family unit for tort, and we said “[t]he purpose of this policy is to protect family harmony and resources.” 237 So.2d at 145.

Our recent decision in Shor v. Paoli, 353 So.2d 825 (Fla.1977), although holding that interspousal tort immunity did not control over the Uniform Contribution Among Joint Tortfeasor’s Act, did not affect the continued vitality of the doctrine. The continuing validity of this doctrine has also been recognized by.a number of recent decisions of the district courts of appeal. Vinci v. Gensler, 269 So.2d 20 (Fla. 2d DCA 1972); Mims v. Mims, 305 So.2d 787 (Fla. 4th DCA 1974); Heaton v. Heaton, 304 So.2d 516 (Fla. 4th DCA 1975); Blanton v. Blanton, 354 So.2d 430 (Fla. 4th DCA 1978); Horton v.

Unigard Insurance Co., 355 So.2d 154 (Fla. 4th DCA 1978), cert. dismissed, 373 So.2d 459 (Fla.1979). There is a reciprocal and often antagonistic relationship between promotion of peace and harmony in the marital relationship and avoidance of fraudulent or collusive claims. A truly adversary tort lawsuit between husband and wife, by its very nature, would have an upsetting and embittering effect upon domestic tranquility. In such cases, there is little likelihood of fraud and collusion, but there is a great probability that the marriage relationship will be adversely affected.

On the other hand, if the lawsuit is not adversary and there is no real conflict of interest between the spouses, the peace and harmony of the marriage is not threatened, but there is a great probability of fraudulent or collusive claims. This is particularly true where the defendant spouse is insured and both spouses will benefit if the plaintiff spouse wins the lawsuit and enforces the claim against the insurance company. Under such circumstances, it is unrealistic to think that the defendant spouse will do all within his or her power to defeat the claim of the plaintiff spouse.

We expect too much of human nature if we believe that a husband .and wife who sleep in the same bed, eat at the same table, and spend money from the same purse can be truly adversary to each other in a lawsuit when any judgment obtained by the plaintiff spouse will be paid by an insurance company and will ultimately benefit both spouses. Adversary tort lawsuits between spouses have an upsetting and embittering effect upon domestic tranquility and the marital relationship.

But non-adversary lawsuits that do not disturb the peace and harmony of the marriage encourage fraudulent and collusive claims, particularly where a third-party insurance company must pay any judgment awarded. Florida’s solution to this dilemma since 1829 has been inter-spousal tort immunity. This is still a viable solution. There have been many changes in Florida since 1829, but the policy reasons justifying interspousal tort immunity still exist.

Accordingly, we hold that the common law doctrine of interspousal tort immunity is still viable in Florida and that it precludes a tort action between husband and wife in all cases. The decision of the district court affirming the trial court’s dismissal of the complaint is therefore approved. It is so ordered. BOYD, OVERTON and McDONALD, JJ., concur. McDONALD, j., concurs specially with an opinion. ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., dissent with an opinion. .

Section 2.01, Florida Statutes (1977), provides: Common law and certain statutes declared in force. — The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state.