A-T-O, Inc. v. Garcia

• Decision Date: 03 July 1979
• Docket Number: Nos. 78-1013,INC,A-T-,78-1014 and 78-1139,s. 78-1013
• Citation: 374 So.2d 533
• Parties: , a Foreign Corporation, d/b/a Safway Steel Products Co., Appellant, v. Juan GARCIA et al., Appellees. Juan GARCIA et al., Appellants, v., etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 533

374 So.2d 533

A-T-O, INC., a Foreign Corporation, d/b/a Safway Steel Products Co., Appellant, v. Juan GARCIA et al., Appellees.

Juan GARCIA et al., Appellants, v. A-T-O, INC., etc., et al., Appellees.

Nos. 78-1013, 78-1014 and 78-1139.

District Court of Appeal of Florida, Third District.

July 3, 1979.

Rehearing Denied Sept. 25, 1979.

Walton, Lantaff, Schroeder & Carson, Daniels & Hicks and Sam Daniels, Miami, for A-T-O.

Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for Garcia.

Adams & Ward and Frank Angones, Miami, for Serra.

Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for American.

Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.

PEARSON, Judge.

These appeals arise out of the same trial in which Juan Garcia and Inez Garcia, his wife, were the plaintiffs, and the defendants were American Mobile Corporation and A-T-O, Inc., doing business as Safway Steel Products Co. The action sought recovery for injuries received by Mr. Garcia when a portable mobile scaffold collapsed. The scaffold was manufactured by American Mobile and sold to A-T-O. A-T-O, in turn, leased the mobile scaffold to Serra Plastering Corporation, which was Mr. Garcia's employer.

Prior to trial, the Garcias settled with American Mobile for $1,445,673.12 under a settlement agreement whereby the Garcias agreed to proceed against A-T-O on a negligence theory only and also agreed to indemnify and hold American Mobile harmless as to A-T-O's indemnity claim against American Mobile. In the trial of the Garcias' negligence claims against A-T-O, the jury awarded the Garcias $1,600,000 compensatory damages ($1,500,000 for Mr. Garcia and $100,000 for Mrs. Garcia) and $1,000,000 punitive damages against A-T-O. On post-trial motions, the trial court granted A-T-O's motion for directed verdict regarding punitive damages and entered a judgment for the defendant A-T-O on the punitive damage claim. ¹ The same order on post-trial motions provided for a new trial on the punitive damage claim in the event the judgment on directed verdict should be reversed. ² The final judgment included a final compensatory damage judgment for the Garcias for $154,326.88 ($1,600,000 minus the $1,445,673.12 settlement). The final judgment further provided that the cross-claim of the defendant A-T-O against the defendant American Mobile Corporation seeking indemnity was dismissed with prejudice for failure to state a cause of action. In addition, the court entered a summary final judgment for Serra on A-T-O's indemnity claim against it.

The first appeal was filed by A-T-O and seeks reversal of an order dismissing its cross-claim for indemnification filed against American Mobile. The second appeal was also filed by A-T-O and seeks reversal of a summary final judgment for the defendant in A-T-O's third party complaint seeking indemnification from Serra. The third appeal was by the plaintiffs Garcia. It seeks reversal of a post-verdict order which set aside a verdict awarding one million dollars to the Garcias as punitive damages against A-T-O.

We first consider the appeal by A-T-O seeking reversal of the order dismissing its cross-claim for indemnity against American Mobile. The cross-claim was filed prior to the settlement between the Garcias and American Mobile. In pertinent part, the claim adopted the complaint filed by the Garcias. It alleged as follows:

"1. Defendant/Cross-claimant adopts the Complaint, subject to the admissions and denials in its Answer above.

"2. Defendant is informed that the machine involved in this accident was an 'Eliminator', Serial No: 24045, manufactured by the Cross-defendant and sold to this Defendant.

"3. That the accident and injuries of which Plaintiffs complain was the sole fault of the Cross-defendant in the negligent manufacture or design of the machinery in question.

"4. That the Cross-defendant breached its implied and express warranties to this Defendant, and that said breach of warranties is the sole cause of the accident and injuries of which Plaintiffs complain.

"5. That, as the designer and manufacturer of the machinery in question, the Cross-Defendant is strictly liable to the Plaintiffs, and as a result by operation of law, is strictly liable to indemnify and hold harmless this Defendant."

Thus, A-T-O was proceeding on the same allegations of negligence as those alleged in the Garcias' complaint. That complaint charged A-T-O with active negligence in failing to inspect and in leasing defective equipment which it knew or should have known to be defective. The jury verdict, even after the settlement by the Garcias with the manufacturer American Mobile, found the defendant A-T-O guilty of active negligence to the extent that it awarded punitive damages against A-T-O for its negligence. It is clear that in this position, A-T-O is not a passive tort-feasor and cannot avail itself of indemnity in reliance upon this court's opinion in General Motors Corporation v. County of Dade, 272 So.2d 192 (Fla. 3d DCA 1973). Rather, the dismissal of the counterclaim would be, at the most, harmless error. We hold that no error has been shown under the principles stated in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977); see also Dura Corporation v. Wallace, 297 So.2d 619 (Fla. 3d DCA 1974), and Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA 1963).

We turn now to A-T-O's appeal which seeks reversal of the summary final judgment entered after trial of the negligence action which holds that A-T-O is not entitled to indemnification from Serra Corporation, the lessee of the machine. This complaint attempted to proceed both on the active-passive theory of indemnification and upon a written indemnity provision printed on the reverse side of the delivery receipt. As to the active-passive theory against Serra, there is a total lack of a factual basis for a holding that Serra was actively negligent. The written indemnity agreement whereby Serra expressly agreed to indemnify A-T-O against the consequences of A-T-O's own negligence is defeated by the terms of Section 725.06, Florida Statutes (1975). ³ The depositions on file and the indemnity agreement itself conclusively established that the indemnity agreement did not contain a monetary limitation nor did it give any specific consideration for the claimed indemnification. A-T-O suggests that there was an issue of whether that portion of the instrument involved, that is, the lease of the mobile scaffold, was an agreement in connection with construction. It is suggested that the mobile scaffold might have been used in some other way. Such speculation will not defeat the clear intent of the statute. The proof before the trial court at the time of the entry of the summary judgment conclusively shows that the mobile scaffold was designed and used as an aid in construction.

We turn now to the appeal by the plaintiffs Garcia which seeks reversal of that portion of the judgment which set aside their recovery against A-T-O of $1,000,000 punitive damages pursuant to A-T-O's renewed motion for a...