3-M Elec. Corp. v. Vigoa
| Decision Date | 03 April 1979 |
| Docket Number | No. 77-2174,77-2174 |
| Citation | 369 So.2d 405 |
| Parties | 3-M ELECTRIC CORPORATION, Appellant, v. Mario VIGOA and Maria Vigoa, Individually and as parents and next friends of Jennifer Vigoa, a minor, Appellees. |
| Court | Florida District Court of Appeals |
Haddad & Josephs and Michael Cohen, Miami, for appellant.
Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellees.
Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Appellant/defendant, 3-M Electric Corporation, seeks review of the trial court order which effectuated dismissal with prejudice of its counterclaim against appellees. The allegations of the said counterclaim constitute an attempt to establish a right to contribution from the appellees/plaintiffs in a tort action. Mr. and Mrs. Vigoa, individually and as parents of their minor child, had named the instant party, an electrical sub-contractor, as a codefendant in a suit for injuries proximately caused by the alleged negligent failure to remove a piece of pipe protruding vertically from the ground 1 in the backyard of their recently constructed home; further allegations stated that there was no response to repeated requests for its removal 2 and appellees' minor child was injured when she fell on the pipe while playing in the backyard.
The appellant filed its answer and subsequently filed a third party complaint against Florida Power and Light Company and Metropolitan Dade County; a cross-claim against the general contractor; and a counterclaim against Mario and Maria Vigoa, the appellees herein, the parents of the injured minor child. The said counterclaim states that 3-M Electric has a right of contribution against the parents under § 768.31, Florida Statutes (1975) based upon the allegation that they negligently failed to adequately and reasonably care for, protect and supervise the minor child.
Appellant relies upon the rationale espoused in a recent Florida Supreme Court holding. In Shor v. Paoli, 353 So.2d 825 (Fla.1978), the court upheld the trial court decision 3 that the common-law doctrine of interspousal immunity did not control over the Uniform Contribution Among Joint Tortfeasors' Act so as to prevent one tortfeasor from seeking contribution from another tortfeasor when the other tortfeasor was the spouse of the person injured in an auto accident who received damages from the first tortfeasor. Appellant quotes from Shor, supra., at 826:
A 1976 first district court of appeal case, 4 holding that contribution is not allowed from a joint tortfeasor who is immune from suit by the injured party due to the family immunity doctrine, was overruled in part by Shor, supra. However, the instant case remains within the parameters of the Mieure decision in regard to precluding contribution from the parents. 5 The doctrine, therefore, has not been abrogated, merely limited under certain circumstances.
The issue raised by the instant appeal is most directly addressed by a discussion of whether the minor child could conceivably have a cause of action in tort against the parents for alleged negligence. It is an established principle that contribution among joint tortfeasors arises only when the plaintiff plausibly has a cause of action against all the tortfeasors who may be found to be jointly responsible for the loss or injury. Thus, the dispositive aspect of this cause depends upon the right of the child to recover from the parents as contribution is generally not available where the ...
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Quest v. Joseph
...doctrine and therefore cannot be considered a joint tortfeasor from whom Quest is entitled to contribution. See 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979). Nevertheless, our Supreme Court in Shor v. Paoli, 353 So.2d 825 (Fla.1978), held that the common law doctrine of inters......
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Selfe v. Smith
...in a contribution claim by the "other" tortfeasor. Winner v. Sharp, 43 So.2d 634 (Fla.1949); Quest, supra; 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), receded from by Quest; Alves v. Adler Built Indus., Inc., 366 So.2d 802 (Fla. 3d DCA 1979), cert. den., 378 So.2d 342 (Fla.1......
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McDonough Power Equipment, Inc. v. Brown
...sponte rehearing en banc, which was occasioned by existence of a conflict with the court's prior decision in 3-M Electric Corporation v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979). The principle thus adopted was that an action for contribution may be maintained against the parent of an injured......