NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT

SARAH JERRELS, as personal                )
representative of the Estate of Dylan     )
Jerrels,                                  )
                                          )
               Appellant,                 )
                                          )
v.                                        )        Case No. 2D18-992
                                          )
SABRINA JERRELS, as personal              )
representative of the Estate of Jasper W. )
Jerrels, Jr.; and SIMONE SINGLETARY       )
KENYON, as personal representative of the )
Estate of Hue Pham Singletary,            )
                                          )
               Appellees.                 )
                                          )

Opinion filed June 12, 2019.

Appeal from the Circuit Court for
Hillsborough County; Catherine M. Catlin,
Judge.

Eric D. Nowak of McBreen & Nowak, P.A.,
Tampa; and Tae K. Bronner of Tae Kelly
Bronner, P.L., Tampa, for Appellant.

David D. Dickey of The Yerrid Law Firm,
Tampa, for Appellee Simone Singletary
Kenyon.

No appearance for remaining Appellee.
LaROSE, Chief Judge.

               Sarah Jerrels, the personal representative of her son's estate, appeals the

trial court's order limiting the scope of the wrongful death claim brought on behalf of

Dylan Jerrels' estate against the estate of his father, Jasper W. Jerrels. We have

jurisdiction. See Fla. R. App. P. 9.170(b)(18) (authorizing appeals from orders

"determin[ing] a motion or petition to strike an objection to a claim against an estate").

Because the trial court erred in limiting Dylan's1 Estate's wrongful death claim to the

amount of Jasper's insurance coverage, we reverse.

                                       Background

               The undisputed facts are tragic. Jasper piloted a private plane in which

his seventeen-year-old son, Dylan, and Jasper's girlfriend, Hue Pham Singletary, were

passengers. The plane crashed into the Gulf of Mexico, killing all three.

               Sabrina Jerrels, Jasper's daughter, petitioned for the intestate

administration of Jasper's estate. Dylan's Estate and Singletary's Estate each filed a

Statement of Claim for wrongful death, asserting that Jasper's negligence caused the

fatal crash.

               Singletary's Estate objected to the claim filed by Dylan's Estate. Because

Dylan was an unemancipated minor at the time of his death, Singletary's Estate argued

that the "claim . . . [wa]s barred by the doctrine of parental immunity for any amounts

beyond the limits of liability insurance" held by Jasper.

               Singletary's Estate relied on Ard v. Ard, 

, 1067 (Fla. 1982)

("While we reaffirm our adherence to parental/family immunity, we hold that, in a tort


               1Forease of reference and to avoid confusion, we will use Dylan's and
Jasper's first names throughout this opinion.
                                           -2-
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."), and Joseph v.

Quest, 

, 1063 (Fla. 1982) (answering the certified question as to

whether "an action for contribution lies against the parent of an injured child . . . by

holding that contribution is available against a parent to the extent of existing liability

insurance coverage for the parent's tort against the child").

               The trial court agreed with Singletary's Estate based upon "[a] strict

reading of Florida Statute § 768.19, [Fla. Stat. (2016)]" explaining that "[h]ad Dylan . . .

survived there is no dispute" that Dylan's recovery would have been limited to Jasper's

insurance policy limits. Thus, although the doctrine of parental immunity may "no longer

exist . . . that [wrongful death] suit is still limited by . . . . Ard v. Ard and Joseph v.

Quest." Consequently, the trial court sustained the objection.

               Dylan's Estate counters before us that parental immunity is inapplicable.

Dylan's Estate argues that because both parties to the immunity are deceased, the

public policy purposes underlying parental immunity disappear. Dylan's Estate also

asserts that, because of the deaths of Dylan and Jasper, the trial court erred in capping

the estate's claims to the amount of available insurance.

                                            Analysis

               This case offers a confounding confluence of competing legal issues.

Because the primary basis for the trial court's decision turns on its reading of section

768.19, we turn first to the statute.
                                               -3-
I.            Florida Wrongful Death Act

              Our "purpose in construing a statute is to give effect to legislative intent,

which is the polestar that guides the court in statutory construction." Gomez v. Vill. of

Pinecrest, 

, 185 (Fla. 2010); see also Diamond Aircraft Indus., Inc. v.

Horowitch, 

, 367 (Fla. 2013) ("Legislative intent is the polestar that

guides our analysis regarding the construction and application of the statute." (citing

Bautista v. State, 

, 1185 (Fla. 2003))). Thus, we " 'begin with the actual

language used in the statute' because legislative intent is determined first and foremost

from the statute's text." Raymond James Fin. Servs., Inc. v. Phillips, 

,

190 (Fla. 2013) (quoting Heart of Adoptions, Inc. v. J.A., 

, 198 (Fla.

2007)). After all, "[a]n action for wrongful death is a purely statutory right." Toombs v.

Alamo Rent-A-Car, Inc., 

, 111 (Fla. 2002).

              Section 768.19 defines the right of action for wrongful death as follows:

                     When the death of a person is caused by the wrongful
              act, negligence, default, or breach of contract or warranty of
              any person, including those occurring on navigable waters,
              and the event would have entitled the person injured to
              maintain an action and recover damages if death had not
              ensued, the person or watercraft that would have been liable
              in damages if death had not ensued shall be liable for
              damages as specified in this act notwithstanding the death of
              the person injured . . . .

§ 768.19.2 The legislature has deemed it "the public policy of the state to shift the

losses resulting when wrongful death occurs from the survivors of the decedent to the

wrongdoer." § 768.17. Accordingly, a wrongful death "action shall be brought by the

decedent's personal representative, who shall recover for the benefit of the decedent's


              2Section768.19 has remained unchanged since its enactment in 1972.
See Ch. 72-35, § 1, Laws of Fla.
                                        -4-
survivors and estate all damages, as specified in this act, caused by the injury resulting

in death." § 768.20.

              There is tension between section 768.19, which creates the wrongful

death right of action, and sections 768.17 and 768.20, which establish the cause of

action.3 See 

("Section 768.19 . . . defines the right of action

under the Wrongful Death Act . . . ."). As the trial court read section 768.19, parental

immunity limited Dylan's Estate's potential recovery because section 768.19 conditions

the right of action upon whether "the event would have entitled the person injured to

maintain an action and recover damages if death had not ensued." See also Laizure v.

Avante at Leesburg, Inc., 109 So 3d 752, 760 (Fla. 2013) ("The right of the survivors to

recover is predicated in the Act on the decedent's right to recover. In other words,

recovery is precluded if the decedent could not have maintained an action and

recovered damages if death had not ensued."); 

("[T]he

language of the [Wrongful Death] Act makes clear a cause of action for wrongful death

that is predicated on the decedent's entitlement to 'maintain an action and recover

damages if death had not ensued.' " (quoting § 768.19, Fla. Stat. (1995))). Although the

"Wrongful Death Act creates independent claims for the survivors, these claims are also

derivative in the sense that they are dependent upon a wrong committed upon another



              3A  right of action is a remedial right affording redress for the
              infringement of a legal right belonging to some definite
              person, whereas a cause of action is the operative facts
              which give rise to such right of action. When a legal right is
              infringed, there accrues, ipso facto, to the injured party a
              right to pursue the appropriate legal remedy against the
              wrongdoer. This remedial right is called a right of action.

Shiver v. Sessions, 

, 908 (Fla. 1955).
                                          -5-
person. No Florida decision has allowed a survivor to recover under the wrongful death

statute where the decedent could not have recovered." Valiant Ins. Co. v. Webster, 

, 411 (Fla. 1990), receded from on other grounds by Gov't Emps. Ins. Co. v.

Douglas, 

, 119-20 (Fla. 1995).

              Seemingly, therefore, the wrongful death statute forecloses a deceased

child's estate from recovering in a wrongful death action against a deceased parent,

despite the apparent legislative intent to the contrary. See § 768.17. Fla. Stat. (2016)

("It is the public policy of the state to shift the losses resulting when wrongful death

occurs from the survivors of the decedent to the wrongdoer."). The parental immunity

doctrine resolves this apparent incongruity; that is, because we conclude that the

doctrine carries no weight under the facts of this case, it does not serve to bar or limit

Dylan's Estate's claim.

II.           Parental Immunity

              Generally, "[p]arents are . . . immune from tort claims brought by their

children." Claire's Boutiques v. Locastro, 

, 1196 (Fla. 4th DCA 2012) (en

banc) (citing Herzfeld v. Herzfeld, 

, 1072 (Fla. 2001)). This court was

the first in Florida to recognize this immunity. See Rickard v. Rickard, 

(Fla. 2d DCA 1967); Meehan v. Meehan, 

(Fla. 2d DCA 1961). We

observed that:

              [t]his rule [parental immunity], like that forbidding at common
              law the bringing of an action by a wife against her husband
              for a personal tort, is not the product of any inherent
              disability of the child to sue its parent, but rather is based
              upon the interest that society has in preserving harmony in
              the domestic relations. It is said that the rule is not an
              absolute one, but exists only where the suit would disturb the
              family relations.

                                            -6-


(quoting 39 Am. Jur. Parent and Child § 90). Several years

later, the supreme court, in Orefice v. Albert, 

, 145 (Fla. 1970), stated

that "[i]t 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." See also Claire's 

("Such

immunity has been premised on public policies that favor harmonious familial relations

and parental discretion over discipline while discouraging the depletion of family

resources from frivolous suits, among others."). From its inception, "the concern with

family integrity has remained at the core of the doctrine." 

.

              Spousal immunity, too, was largely predicated upon the same concerns.

See Sturiano v. Brooks, 

, 1128 (Fla. 1988) ("Actions between spouses

must be barred when the policy reasons for maintaining the doctrine exist, such as the

fear of disruption of the family or other marital discord, or the possibility of fraud or

collusion."). The supreme court abrogated the spousal immunity doctrine in Waite v.

Waite, 

(Fla. 1993). However, both doctrines are rooted in similar

policy concerns, and parental immunity, as a common law creation, remains viable

subject to several exceptions, none of which apply here. See, e.g., Herzfeld, 

at 1079 (finding "that the policies behind the parental immunity doctrine are

insufficient to justify barring a minor from recovering for intentional sexual abuse

perpetrated by a parent"). We are guided by Dressler v. Tubbs, 

, 794

(Fla. 1983), in which the supreme court rejected the use of spousal immunity as a shield

against the deceased wife's estate's wrongful death claim against the estate of her

deceased husband.
                                             -7-
III.          Dressler v. Tubbs

              In 

, the court characterized interfamily

immunity as a "disability to sue" which is extinguished when the basis for the immunity

disappears. In a strikingly similar factual scenario to our case, Eugene and Carole

Tubbs died in a private airplane crash; Mr. Tubbs was the pilot. 

Carole's

estate sued Eugene's estate. 

survived by her children, two of whom

were from a prior marriage. 

filed a successful motion to dismiss the

wrongful death claim on the grounds of interspousal and interfamily tort immunity. 

The supreme court affirmed the Fifth District's decision reversing the dismissal,

explaining that spousal immunity had no application under these facts: "This action for

wrongful death is not barred by the doctrine of interspousal immunity" because

"[h]usband and wife are dead. There is no suit between spouses, just as there is no

longer any marital unit to preserve." 

794.

              Although the language in section 768.19 conditions the wrongful death

right of action upon whether "the event would have entitled the person injured to

maintain an action and recover damages if death had not ensued," this language did not

dissuade the Dressler court from holding that spousal immunity was no bar to the

wrongful death action. 

Indeed, the disability to sue disappeared upon the

Tubbses' deaths. Most assuredly, we can say that the same disability to sue

disappeared upon the deaths of Dylan and Jasper.

              Dressler relied upon an earlier decision in Shiver v. Sessions, 

(Fla. 1955). Shiver also involved a wrongful death action; the suit was brought on

behalf of minor children whose stepfather had murdered their mother and then

committed suicide. 

The trial court dismissed the complaint, reasoning
                                           -8-
that the wrongful death statute barred recovery because "the plaintiffs' stepfather could

not have been sued by their mother during her lifetime on account of his tortious act."

The supreme court disagreed:

                     We think that the previous decisions of this court
              respecting the force and effect of the common-law rule of
              marital immunity in other situations, as well as our previous
              interpretations of our Wrongful Death Act, lead inevitably to
              the conclusion that the rule of marital immunity has no
              application in this case and will not bar the suit.

                      Thus, it is settled law in this jurisdiction that the wife's
              disability to sue her husband for his tort is personal to her,
              and does not inhere in the tort itself. . . . It is also well settled
              that our Wrongful Death Act creates in the named
              beneficiaries "an entirely new cause of action, in an entirely
              new right, for the recovery of damages suffered by them, not
              the decedent, as a consequence of the wrongful invasion of
              their legal right by the tort-feasor." This right is "separate,
              distinct and independent" from that which might have been
              sued upon by the injured person, had he or she lived.

(citations omitted). The court specifically noted that the policies underlying

spousal immunity were of no consequence "in view of the fact that the reason for the

rule of marital immunity automatically disappears from the picture simultaneously with

the accrual of the right of action under the Wrongful Death Act." 

              We followed suit in Stone v. Valley Forge Ins. Co., 

(Fla.

2d DCA 1983). In that case, the husband was the negligent driver in an automobile

accident resulting in the death of him and his wife. 

estate sued the

husband's estate and Valley Forge for wrongful death. 

We reversed the

trial court's order barring the wrongful death action "on the authority of . . . Dressler"

which, we observed, stood for the proposition "that the doctrine of interspousal immunity

has no application in a suit for wrongful death brought by the estate of a deceased wife

against the estate of a deceased husband." 

          Our Case

              In our view, Dressler controls. The only difference between Dressler and

this case is the type of interfamily immunity involved. Nevertheless, the policy reasons

supporting spousal and parental immunity are indistinguishable. See 

("Protecting the family unit is a significant public policy behind parental immunity.

We are greatly concerned by any intrusion that might adversely affect the family

relationship. Litigation between family members would be such an intrusion.").

              Although Dylan may have had a disability to sue his father while he was

alive, the policy rationale underlying the disability disappeared upon both their deaths,

and thus the disability likewise evaporated. Consequently, parental immunity cannot

bar a wrongful death claim brought by Dylan's Estate. Cf. Claire's 

("[P]ublic policy prohibits even a negligent parent from being compelled to

contribute to his or her child's damages because of the strain it would place on the

family relationship.").

              Singletary's Estate relies heavily on the supreme court's decision in

. There, the court barred a wrongful death recovery where

the claim was predicated upon the dangerous instrumentality doctrine; the decedent

wife's estate had no right of action because, at the time of her death, she was a co-

bailee of the vehicle. 

The court held that "[a]bsent the ability to impute [the

husband]'s negligence to Alamo, no right of action originated in the decedent to which a

wrongful death cause of action could attach." 

have long emphasized that an action for
              wrongful death is distinct from the decedent's action for
              personal injuries had he or she survived because it involves
              different rights of recovery and damages, the language of
              the Act makes clear a cause of action for wrongful death that
                                           - 10 -
              is predicated on the decedent's entitlement to "maintain an
              action and recover damages if death had not ensued." See
              Valiant Ins. Co. v. Webster, 

, 411 (Fla. 1990)
              ("While the Wrongful Death Act creates independent claims
              for the survivors, these claims are also derivative in the
              sense that they are dependent upon a wrong committed
              upon another person."); Celotex Corp. v. Meehan, 

141, 147 (Fla. 1988) ("[A] wrongful death action is
              derivative of the injured person's right, while living, to recover
              for personal injury."). Accordingly, . . . we hold that no cause
              of action for wrongful death survived the decedent in the
              instant case because she had no right of action at her death.

.

              Critical to the resolution of Toombs was the court's distinction of Shiver

and Dressler. As the court noted, "[a]t the heart of the distinction drawn in Shiver was

this Court's recognition that the policies engendered by interspousal immunity were of

no moment in the action for wrongful death." 

(quoting

); see also 

("An immunity based upon

the preservation of marital harmony can have no pertinence in this case, for here the

marriage has been terminated, husband and wife are both dead, and the action is

brought for the benefit of a third person."). In fact, as the Toombs court observed,

"[s]imilar policy concerns are not implicated by a consideration of the decedent's co-

bailee 

.

              Instead, as the Toombs court recognized, its prior decisions in Shiver and

Dressler apply in cases such as this one where courts are "grappling with the role of . . .

immunity in an action for wrongful death." 

. In doing so, the

court affirmed Dressler's and Shiver's application in wrongful death cases when both

parties to an immunity are dead. Toombs did not involve an immunity personal to the

decedent; it involved a case where the decedent had no cause of action at her death.

                                            - 11 -
Toombs did not overturn or recede from Dressler or Shiver. Unlike a co-bailee

attempting to bring an action under the dangerous instrumentality doctrine, parental

immunity does not inhere to the tort itself and, at the time of death, the child still

possesses a cause of action against the parent.

V.            Section 768.19 and Limits on Wrongful Death Recovery

              Finally, we address the trial court's determination that any recovery by

Dylan's Estate's wrongful death claim was limited "to the extent of [Jasper]'s available

liability insurance coverage." See 

. Again, we turn first to the

language of section 768.19.

              The statute contains no such explicit limit on damages. See § 768.19.

Furthermore, Toombs analyzed section 768.19 and distinguished Dressler as pertaining

to wrongful death cases where familial immunities were asserted. Consequently, as an

initial matter of fact, we note that Ard and Joseph are distinguishable insofar as neither

case concerned a wrongful death claim; in each, both the parent and child were still

alive when the negligence suit was filed.

              In Ard, a minor child was injured when his mother took him out of a car,

placed him in dangerous position, and he was hit by a motor 

. The minor child survived and filed suit against the mother for negligence. 

court held that the son may file suit against the mother and may recover

an award up to the amount of the available insurance. 

Ard court

observed that invocation of the parental immunity doctrine would stymie the policy

rationale underlying the immunity, rather than serve to promote its purposes. See 

("When recovery is allowed from an insurance policy the claimant will not force

a depletion of the family assets at the expense of the other family members. . . .
                                            - 12 -
[R]ather than a source of disharmony, the action is more likely to ease the financial

difficulties stemming from the injuries."). Thus, the court explained, "[t]he effect of her

immunity is to bar an otherwise valid action brought by her son against her." 

              Similarly, in Joseph, a case decided the same day as Ard, the parents and

the child were also 

. In that case, a minor child was hit by

a car driven by Marion Quest. 

The child survived the crash. 

father sued Ms. Quest for both himself and on behalf of his son. 

filed a

third-party action against the child's mother alleging that the mother had negligently

supervised her child, contributing to the child's injuries. 

attributed ten

percent fault each to the child and his father, twenty-five percent fault to the child's

mother, and the remaining liability to Ms. Quest. 

The jury awarded

$150,000 for the child's damages and $17,000 in damages for the child's father. 

trial court reduced the awards to the child and his father by ten percent.

Ms. Quest argued that the trial court should have allowed for a

setoff of the judgment against the child's mother. 

court framed the

issue as whether a defendant has a right of contribution against the parent of an injured

child." 

Ard, the supreme court held "that contribution is available against

a parent to the extent of existing liability insurance coverage for the parent's tort against

the child." 

. In so holding, the court reasoned that limiting

the parental liability for contribution in this setting would ensure that there would be no

chilling effect on parents filing suit on their minor children's behalf when there was the

possibility that they could be liable for contribution. 

                                            - 13 -
               Both Ard and Joseph concern scenarios in which both the tortfeasor

parent(s) and child were still alive. Thus, allowing tort damages to the extent of

insurance coverage would not sow the discord usually present in interfamily squabbles.

This critical distinction makes our case similar to Shiver, Dressler, and Stone. As both

Ard and Joseph recognized and reaffirmed, the policy rationale behind parental

immunity in preserving familial harmony is not affected when there is insurance

coverage. Similarly, Dressler explained that the policy rationale of preserving familial

harmony and familial assets is not implicated at all when both the parent and child are

deceased. Because in this case both Dylan and Jasper are deceased, the policy

reasons behind the immunity dissolved and there was no need to cap damages as the

trial court did.

               More recently, the supreme court explained that the rationale behind

"[a]brogation of the parental immunity doctrine in accident cases has been largely based

on the prevalence of liability insurance." Herzfeld, 

at 1074. In such cases,

"the domestic harmony policy concern is diminished . . . because the injured child's

dispute is actually with the financially responsible insurance carrier rather than with the

parents." 

other side of the coin, in a case such as the one confronting us,

where both the parent and child are deceased, this stated basis for capping damages is

enfeebled by the absence of a need to maintain domestic harmony.

                                        Conclusion

               The trial court erred in sustaining the objection to Dylan's Estate's

wrongful death claim against Jasper's Estate. We reverse and remand for further

proceedings consistent with this opinion.



                                            - 14 -
               Reversed and remanded.

SILBERMAN, J., Concurs.
ATKINSON, J., Dissents with opinion.



ATKINSON, Judge, Dissenting.

               I respectfully dissent. Dylan's Estate is only entitled to damages that

Dylan would have been entitled to recover had Dylan's death "not ensued." See

768.19, Fla. Stat. (2016) ("When the death of a person is caused by the . . . negligence

. . . of any person . . . and the event would have entitled the person injured to maintain

an action and recover damages if death had not ensued, the person . . . that would have

been liable in damages if death had not ensued shall be liable . . . notwithstanding the

death of the person injured . . . ."); cf. 

("The estate and heirs

stand in the shoes of the decedent for purposes of whether the defendant is liable . . .

and it would be anomalous to give greater rights to the estate and heirs than to the

decedent.").

               Dylan's father, Jasper, also died, but his defenses survived him. It does

not matter that both the tortfeasor and injured party are deceased, because the

survivors' right of action is dependent on whether the tortfeasor "would have been liable

in damages if death had not ensued." § 768.19. Neither Jasper nor his estate would be

liable to Dylan if Dylan had not passed away, because such liability would have been

foreclosed by the defense of parental immunity. Cf. 

                                           - 15 -
("[R]ecovery is precluded if the decedent could not have maintained an action and

recovered damages if death had not ensued.").4

              Had Dylan not died, he would not have been "entitled . . . to maintain an

action and recover damages" against his father or his father's estate in excess of

available liability insurance coverage. See § 768.19; 

("The

right of the survivors to recover is predicated in the Act on the decedent's right to

recover."). Because parental immunity survived the tragic accident that took the lives of

Dylan and Jasper, the son's estate has no right of recovery against the father's estate

beyond available liability insurance limits.




              4But  even assuming arguendo that it does matter that both parties to the
immunity are dead, recovery would still be limited. There is some logic to the
evaporation of the policy concern of matrimonial harmony when both spouses have
died. See 

, 794 (finding a wrongful death action arising from
a crash that killed a husband and wife was not barred by interspousal immunity because
"there is no longer any marital unit to preserve"). However, the protection of familial
harmony and resources underlying parental immunity does not cease to be a policy goal
after only two members of a family are killed in the same accident.
                                            - 16 -