K-Mart Corp. v. Chairs, Inc.

• Decision Date: 05 March 1987
• Docket Number: No. 85-1578,K-MART,85-1578
• Citation: 506 So.2d 7,12 Fla. L. Weekly 697
• Parties: 12 Fla. L. Weekly 697 CORPORATION, etc., Appellant, v. CHAIRS, INC.; C & S Chairs, Inc. and Bituminous Casualty Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 7

506 So.2d 7

12 Fla. L. Weekly 697

K-MART CORPORATION, etc., Appellant, v. CHAIRS, INC.; C & S Chairs, Inc. and Bituminous Casualty Corporation, Appellees.

No. 85-1578.

District Court of Appeal of Florida,

Fifth District.

March 5, 1987.

Rehearings Denied April 30, 1987.

Francis J. Carroll, Jr., of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellant.

David D. Chafin, of Whittaker, Stump and Webster, P.A., Orlando, for appellees C & S Chairs, Inc. and Bituminous Cas. Corp.

Frederick J. Daniels, of Langston and Hess, P.A. Orlando, for appellees, Chairs, Inc. and Aetna Ins. Companies.

SHARP, Judge.

K-Mart Corporation appeals from a summary judgment denying it any recovery under its third party complaint. In a suit by a customer injured by a swing set purchased from a K-Mart store, K-Mart filed a third party complaint against C & S Chairs, Inc. ("C & S"), manufacturer of the swing, and Chairs, Inc. ("Chairs"), the distributor. We reverse in part and affirm in part.

K-Mart sold a porch swing set to Willis Stuhr in 1979. Stuhr assembled the swing set and was subsequently injured while swinging in it when it tipped over backwards. In 1980, Stuhr and his wife sued K-Mart, C & S and Chairs.

On the eve of trial, an expert witness scheduled to appear for C & S and Chairs, became ill. Stuhr agreed to dismiss claims against C & S and Chairs, without prejudice. The trial continued against K-Mart, and while the jury was deliberating C & S and Chairs settled with Stuhr for $20,000.00.

The jury returned a verdict against K-Mart for $115,000.00 for Stuhr and $6,000.00 for his wife, for loss of services. Its verdict form contained the following specific finding: that K-Mart sold a "swing with a defect which was a legal cause of damage to plaintiff, Willis Stuhr." ¹ However, the jury found Stuhr was thirty percent negligent.

After reducing the $115,000.00 award by the $20,000.00 settlement, and by the thirty percent attributable to Stuhr's negligence, K-Mart paid the Stuhrs $64,700.00 plus costs. Thereafter K-Mart filed its complaint seeking indemnity, contribution, and

damages for breach of contract from C & S and Chairs. Upon motion by the third party defendants, the trial court granted summary judgment denying K-Mart any relief. K-Mart argues it is entitled to indemnification based on either a theory of common law indemnity or contractual indemnity, and to contribution pursuant to section 768.31, Florida Statutes (1981).

Indemnity

Appellant sought common-law indemnity against both C & S and Chairs. The right to indemnity may arise out of a contract or it may be based on liability imposed by law. Mims Crane Service, Inc. v. Insley Manufacturing Corporation, 226 So.2d 836 (Fla. 2d DCA), cert. denied, 234 So.2d 122 (Fla.1969). While the parties to this appeal agree the right to common-law indemnity exists in Florida, they differ in their application of the controlling case law to this case. We think the trial court correctly decided that this case is governed by Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), but erred in its application to the facts presented here.

Houdaille involved an indemnification claim between a manufacturer and the employer of an injured employee. The suit alleged that the employer was actively negligent in using improper and dangerous procedures with the manufacturer's product. The supreme court held there was no right to indemnification on the part of the manufacturer as against the employer absent a special relationship between the manufacturer and the employer which would make the manufacturer only "vicariously, constructively, derivatively, or technically liable" for the wrongful acts of the employer. Houdaille at 492. The court further noted a distinction between the facts in Houdaille, where indemnification would not lie, and the situation where a manufacturer became liable solely because a supplier supplied the manufacturer with a defective part. In the latter case, a manufacturer held liable for breach of implied warranty of fitness may have a right to indemnification against the supplier. Houdaille at 493-4, n. 3. ²

K-Mart's sole act, as indicated by the verdict form, was to sell the defective swing set to Stuhr. The swing set was furnished to K-Mart by the distributor, Chairs, and the manufacturer, C & S. We analogize this situation to the fact pattern noted in Houdaille, where a manufacturer became liable solely because a defective part was supplied to it by a supplier. The mere selling of a defective product by a retailer does not constitute "fault" under Houdaille. ³ Rather, the retailer is "vicariously, constructively, derivatively or technically liable" in that instance. ⁴

In addition to common-law indemnity, K-Mart sought contract right indemnity against Chairs, based on language in an Seller agrees to reimburse, indemnify, hold harmless and defend at its expense (if requested by K-Mart) the K-Mart Corporation and its subsidiary companies against any damage, loss, expense, claim, liability or penalty, including bodily injury, property damage, ... arising out of any use, possession, consumption or sale of said goods;

invoice comprising part of the sales documents. It provided:

General terms such as those used in the invoice do not generally encompass an intent to indemnify for consequences of a wrongful act of the person being indemnified. ⁵ However, as discussed above, we do not think a retailer's strict liability for sale of a...