699 So.2d 701 (Fla.App. 3 Dist. 1997), 95-0534, Dade County School Bd. v. Radio Station WQBA

CourtFlorida Court of Appeals. Third District
Citation22 Fla. L. Weekly D 1122,699 So.2d 701
Docket Number94-3011.,95-0534
PartiesDADE COUNTY SCHOOL BOARD, Appellant, v. RADIO STATION WQBA, City of Miami, Susquenhanna Pfaltzgraff and Three Kings Parade, Inc., Appellees.
Date07 May 1997

Page 701

699 So.2d 701 (Fla.App. 3 Dist. 1997)

22 Fla. L. Weekly D 1122

DADE COUNTY SCHOOL BOARD, Appellant,

v.

RADIO STATION WQBA, City of Miami, Susquenhanna Pfaltzgraff and Three Kings Parade, Inc., Appellees.

Nos. 95-0534, 94-3011.

Florida Court of Appeals, Third District.

May 7, 1997

Rehearing Denied Oct. 1, 1997.

Peters, Robertson, Lax, Parsons, Welcher, Mowers & Passaro, and Geralyn M. Passaro, and Kenneth R. Drake and Jeffrey R. Mowers, Fort Lauderdale, for appellant.

Walton Lantaff Schroeder & Carson, and John P. Joy, and Kenneth L. Valentini, for appellees.

Before COPE, GERSTEN and SHEVIN, JJ.

Page 702

GERSTEN, Judge.

Appellant/cross-appellee Dade County School Board ("DCSB"), appeals a final judgment requiring DCSB to reimburse appellees/cross-appellants Three Kings Parade, Inc., Radio Station WQBA, Susquehanna Broadcasting Co., and the City of Miami ("sponsors"), for monies paid in settlement of various personal injury claims. The sponsors cross-appeal the portion of the final judgment denying their claim for prejudgment interest. We affirm and remand with instructions.

At the 1990 annual Three Kings Day Parade, a can of flammable liquid used to ignite Miami High School majorettes' batons burned nearby spectators. The injured spectators individually sued the sponsors of the parade and DCSB. The complaints basically alleged the sponsors and DCSB were negligent in failing to exercise reasonable care to supervise parade participants.

WQBA ran the parade as a promotional event and required participants to sign a "Participation Agreement." The agreement contained an indemnification clause which provided that participants would "defend and hold harmless" WQBA and the City of Miami from any claims resulting from the parade. A Dade County employee from the Office of Vocational, Adult, Career and Community Education ("OVACCE") of Dade County Public Schools, Mr. Moffi, signed the agreement for the Miami High marching band which it had agreed to sponsor. The band was to carry an OVACCE banner in the parade.

Two students assisting the majorettes, Maria Lozano and Alfredo Sans, brought the flammable liquid cans through the parade entrance past the police and fire officials. In the process of reigniting a majorette's baton, the flammable liquid caught fire. Sans kicked the can away resulting in burn injuries to several spectators.

The injured spectators' negligence claims against the sponsors and DCSB were virtually identical, asserting negligence in permitting flammable materials to be used in a dangerous manner. The sponsors responded by claiming DCSB was the sole cause of the injuries and filing cross-claims against DCSB for indemnity and contribution. The sponsors later filed an independent action against DCSB seeking damages and a declaratory judgment that DCSB had to indemnify the sponsors for all claims under the terms of the "Participation Agreement."

The sponsors settled the injured spectators' claims and sought summary judgment on its claims against DCSB for reimbursement of the settlement monies. The trial court entered partial summary judgment in favor of the sponsors under the Participation Agreement for damages attributable to the actions or inactions of DCSB.

At trial, DCSB admitted it owed a duty to supervise the majorettes, but denied responsibility to the sponsors for contractual indemnity because the sponsors were never sued by the underlying claimants for vicarious liability. The jury found DCSB to be 90% negligent, and Sans 10% negligent. The jury further found DCSB 100% responsible for the actions of Sans at the parade. Hence, the sponsors were absolved of all negligence. Further, the jury found no special relationship between WQBA or the City of Miami and DCSB.

After the jury verdict, both sides moved for entry of judgment in their favor. The sponsors argued that since DCSB was found to be 100% liable, they were entitled to reimbursement for the settlement monies paid. DCSB argued that because the jury found no special relationship between the parties, indemnity was not available as a matter of law.

The trial court entered an order denying various other post trial motions, and entered final judgment in favor of the sponsors for $2,035,000, representing 100% of the settlement monies paid by the sponsors on the personal injury claims. DCSB never contested the reasonableness of the settlement amount. The trial court awarded the sponsors $59,391.50 in attorney's fees and $15,000 in costs, but denied the sponsors' motion for prejudgment interest on the settlement monies from the dates they were paid.

DCSB appeals the entire adverse award of $2,035,000 and appeals the judgment language "let execution issue." The sponsors

Page 703

cross-appeal the denial of their motion for prejudgment interest.

We first address the one issue requiring remand. As correctly pointed out by DCSB, the trial court erred in including the language "for which sum let execution issue" in its final award. Pursuant to Section 768.28(5), Florida Statutes (1995):

Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions therefor, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000.

DCSB is a political subdivision of the State of Florida, and thus its liability is limited by the statutory cap. Section 768.28(5) authorizes the rendition of a judgment in excess of the maximum liability where that portion exceeding the cap is reported to the Legislature and "only by further act of the Legislature." See § 768.28(5), Fla.Stat. (1995). No such authorization was obtained, and thus we must remand with instructions to the trial court to strike the language "for which sum let execution issue" in the final judgment.

In all other respects, we affirm the award below finding no merit in either the arguments raised in the main appeal or in the cross appeal. With regard to the main appeal, we recognize the award cannot be supported on common law indemnity grounds because of the jury's technical finding that there was no special relationship between the parties. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979)(requiring special relationship between indemnitee and indemnitor giving rise to vicarious, constructive, derivative or technically liability). However, considering the record as a whole, and particularly the jury verdict finding DCSB 100% at fault for causing the injuries to the parade spectators, we hold that the doctrine of equitable subrogation applies to provide the sponsors recompense.

The doctrine of equitable subrogation was created to afford the courts an avenue to ensure complete justice between parties irrespective of technical legal rules. Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980); Dantzler Lumber & Export Co. v. Columbia Cas. Co., 115 Fla. 541, 156 So. 116 (1934); Allstate Life Ins. Co. v. Weldon, 213 So.2d 15 (Fla. 3d DCA 1968). It applies where a person or entity, not acting voluntarily, has paid a debt for which another was primarily liable, and which in equity and good conscience should have been discharged by the latter. United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (Fla.1928); McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla. 1st DCA), rev. denied, 544 So.2d 200 (Fla.1989).

The policy behind the doctrine is to prevent unjust enrichment by assuring that the party responsible for a debt is ultimately answerable for its discharge. See United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. at 828, 119 So. at 394; Eastern Nat'l Bank v. Glendale Fed. Sav. and Loan Ass'n, 508 So.2d 1323 (Fla. 3d DCA 1987). Although the right to subrogation is not absolute, it is a "flexible and elastic equitable doctrine, and hence 'the mere fact that the doctrine of subrogation has not been previously invoked in a particular situation is not a prima facie bar to its applicability.' " Atlanta Int'l Ins. Co. v. Bell, 438 Mich. 512, 521, 475 N.W.2d 294, 298 (1991).

Moreover, subrogation has been held to extend to anyone "paying any part of the debt of another provided the entire debt is paid," Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962), providing that party is not a mere "volunteer," but has some right or interest of its own to protect. Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972), cert. discharged, 290 So.2d 3 (Fla.1974).

Applying these principles here, the sponsors settled with the injured spectators to protect their own interests as named defendants in the spectators' original suit. The fact that the sponsors were ultimately found to be without fault, does not place them in the category of mere "volunteers" and does

Page 704

not preclude application of the doctrine. See West American Ins. Co. v. Yellow Cab Co., 495 So.2d 204 (Fla. 5th DCA 1986), rev. denied, 504 So.2d 769 (Fla.1987). 1

Our views in this regard are summarized and far better expressed in the opinion of Kala Invs., Inc. v. Sklar, 538 So.2d 909 (Fla. 3d DCA 1989), rev. denied, 551 So.2d 460 (Fla.1989), and rev. denied, 551 So.2d 461 (Fla.1989), which thoroughly discusses the doctrine of equitable subrogation and its application in cases like this. As noted in Kala, if the sponsors are absolved of liability, "and yet left to bear the financial responsibility for the plaintiffs' loss after being found not at fault, the result would be highly inequitable, and the true wrongdoers would be unjustly enriched. It is precisely this result that the doctrine of equitable subrogation was fashioned to remedy." Kala Invs., Inc. v. Sklar, 538 So.2d at 919.

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