485 So.2d 438 (Fla.App. 2 Dist. 1986), 84-2711, Dean Co. v. United States Home Corp., Inc.

CourtFlorida Court of Appeals. Second District
Writing for the CourtAuthor: Frank
Citation11 Fla. L. Weekly 441,485 So.2d 438
PartiesThe DEAN COMPANY, Appellant, v. U.S. HOME CORPORATION, INC., and Imperial Cove Condominium XIII Association, Inc., Appellees.
Docket Number84-2711.
Date12 February 1986

Page 438

485 So.2d 438 (Fla.App. 2 Dist. 1986)

11 Fla. L. Weekly 441

The DEAN COMPANY, Appellant,

v.

U.S. HOME CORPORATION, INC., and Imperial Cove Condominium XIII Association, Inc., Appellees.

No. 84-2711.

Florida Court of Appeals, Second District.

February 12, 1986

David E. Platte, of Bauer, Koch, Platte & Mariani, Clearwater, for appellant.

Joseph R. Park, of Park, Smith & Maguire, P.A., Clearwater, for appellee U.S. Home Corp., Inc.

FRANK, Judge.

The Dean Company, the third party defendant below, has appealed from a final judgment in which it was found liable for contribution to the appellee, U.S. Home Corporation, Inc., in satisfaction of a judgment rendered in an action initiated by Imperial Cove Condominium XIII Association. The Association sued U.S. Home because leaks had developed in the roofs of a number of the condominium units U.S. Home, the developer and general contractor, had built. The plywood roof deck was installed by U.S. Home, but it subcontracted the construction of the built-up roofing system to Dean. Thus, when faced with negligence and breach of warranty claims stemming from the defective roofs, U.S. Home filed a third party complaint against Dean seeking indemnification. The trial court severed the third party action and separately tried the Association's claims. At the conclusion of the non-jury trial the court entered an order adjudicating the issues finding that the Association was entitled to recover upon its claims of negligence, a breach of statutory implied warranty, and a breach of the common law implied warranty asserted against U.S. Home. The court found that the defects were occasioned in some degree by inadequate nailing or fastening of the plywood decking--U.S. Home's responsibility--and by the improper installation, application, or construction of the built-up roofing system--Dean's responsibility. Against that backdrop Dean prepared to defend U.S. Home's claim for indemnification.

In his opening statement in the third party trial, U.S. Home's attorney informed the court that the evidence would show

Page 439

that Dean's failure to include rosin sheathing paper in the roof system was the sole proximate cause of the damage sustained by the Association. Dean's counsel, in his opening statement, stated that a third party plaintiff in an indemnification action, in this instance U.S. Home, must show that it was not actively negligent to any degree in causing the defect, a statement of the law which U.S. Home's counsel agreed was correct. Therefore, indemnification was the only cause of action pleaded by U.S. Home against Dean and the ground rules had been effectively set at the outset of the trial of the third party claim: i.e., Dean had only to persuade the trial court that U.S. Home's negligence in placing the sub-roofing in some fashion contributed to the leaking roofs in order to be absolved of any liability on a theory of indemnification. At the conclusion of the third party trial, however, the trial court found that the deficient performance by U.S. Home and Dean were in effect concurrent causes of the Association's damages, and it...

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