731 So.2d 638 (Fla. 1999), 91,767, Dade County School Bd. v. Radio Station WQBA

Docket Nº:91,767.
Citation:731 So.2d 638, 24 Fla. L. Weekly S 216
Opinion Judge:The opinion of the court was delivered by: Harding, C.j.
Party Name:DADE COUNTY SCHOOL BOARD, Petitioner, v. RADIO STATION WQBA, City of Miami, Susquehanna Pfaltzgraff and Three Kings Parade, Inc., Respondents.
Attorney:Geralyn M. Passaro of Peters, Robertson, Parsons, Welcher, Mowers & Passaro, Ft. Lauderdale, Florida, for Petitioner John P. Joy and Kenneth L. Valentini of Walton Lantaff Schroeder & Carson, Ft. Lauderdale, Florida; and G. Bart Billbrough of Cole White & Billbrough, P.a., Miami, Florida, for Res...
Case Date:February 04, 1999
Court:Supreme Court of Florida

Page 638

731 So.2d 638 (Fla. 1999)

24 Fla. L. Weekly S 216

DADE COUNTY SCHOOL BOARD, Petitioner,

v.

RADIO STATION WQBA, City of Miami, Susquehanna Pfaltzgraff and Three Kings Parade, Inc., Respondents.

No. 91,767.

Supreme Court of Florida.

February 4, 1999

Page 639

Rehearing Denied May 13, 1999.

Page 640

Geralyn M. Passaro of Peters, Robertson, Parsons, Welcher, Mowers & Passaro, Ft. Lauderdale, Florida, for Petitioner.

John P. Joy and Kenneth L. Valentini of Walton, Lantaff, Schroeder & Carson, Ft. Lauderdale, Florida; and G. Bart Billbrough of Cole, White & Billbrough, P.A., Miami, Florida, for Respondents.

REVISED OPINION

HARDING, C.J.

We have for review Dade County School Board v. Radio Station WQBA, 699 So.2d 701 (Fla. 3d DCA 1997), which conflicts with the opinions in Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988), and Dober v. Worrell, 401 So.2d 1322 (Fla.1981). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

The Dade County School Board (DCSB) appealed a final judgment requiring it to reimburse Three Kings Parade, Inc., Radio Station WQBA, Susquehanna Broadcasting Company, and the City of Miami (hereinafter referred to collectively as "Three Kings") for monies paid to settle various personal injury claims. The Third District Court of Appeal affirmed the judgment. We quash the decision of the district court and remand this case for further proceedings consistent with this opinion.

On January 7, 1990, the annual Three Kings Day Parade was held in Miami, Florida. Radio Station WQBA ran the parade as a promotional event. Participants in the parade were required to sign a "Participation Agreement" 1 containing an indemnification clause. This clause provided that participants would defend Three Kings and hold them harmless from any claims resulting from the parade.

In late 1989, a WQBA employee contacted John Moffi of the Office of Vocational, Adult, Career and Community Education (OVACCE) of Dade County Public Schools. Moffi purchased an advertising package that included radio promotional announcements and an OVACCE banner which was to be carried by one of the high school marching bands in the parade. Moffi signed the "Participation Agreement" which designated OVACCE the sponsor of the Miami Senior High School Band. The band was selected by Three Kings, and OVACCE expressed no preference as to which band they would sponsor.

As part of their routine, the majorettes in the Miami Senior High School marching band twirled flaming batons. Two students, Maria Lozano and Alfredo Sans, were chosen to assist the majorettes with the ignition of the batons. On the day of the parade, Lozano and Sans brought cans of flammable liquid through the parade entrance and past police and fire officials. On the parade route, a majorette's batons would not maintain a constant flame and had to be reignited. While being used to reignite the batons, a can of flammable liquid caught fire and fell to the ground. Sans kicked the can away from the students, but into the crowd of spectators. Several spectators were severely burned.

The injured spectators brought personal injury actions against Three Kings and DCSB. The claims against both Three Kings and DCSB alleged negligence

Page 641

in permitting flammable materials to be used in a dangerous manner. Three Kings responded by claiming that DCSB was the sole cause of the injuries and filed cross-claims against DCSB for contractual and common law indemnity and for contribution. 2 Later, Three Kings filed a separate suit in the form of a declaratory judgment seeking DCSB's indemnification of Three Kings for all claims under the terms of the "Participation Agreement."

As a condition of allowing the Three Kings Day Parade, the City of Miami required Three Kings to carry liability insurance. The liability insurer for Three Kings settled with all of the injured plaintiffs. 3 DCSB settled separately with three of the injured plaintiffs. 4

Prior to trial, Three Kings sought summary judgment against DCSB for reimbursement of the settlement monies based on the "Participation Agreement." The trial court entered summary judgment in favor of Three Kings on the issue of contractual indemnity. The trial court held that the "Participation Agreement" legally obligated DCSB to indemnify Three Kings for damages caused by the actions of the Miami Senior High School band. However, a trial would be required to determine percentages of fault.

The two parties went to trial on the issues of common law indemnity and fault on the contractual indemnity claim. The claim of equitable subrogation was not raised at trial. The jury found DCSB to be 90% negligent and Sans 10

egligent n 5 Additionally, in response to a special interrogatory, the jury found that there was no special relationship between DCSB and Three Kings.

Following the verdict, both parties moved for entry of judgment in their favor. 6 At a post-verdict hearing on the motions, Three Kings claimed under the doctrine of equitable subrogation as an alternative basis for recovery. This was the first time that Three Kings had argued equitable subrogation; the theory was not raised in the pleadings. The trial court entered an order denying all post-trial motions and entering final judgment for Three Kings in the amount of $2,035,000, representing 100% of the funds paid by Three Kings to the injured spectators, $59,391.50 in attorney's fees, and $15,000 in costs. The trial court denied Three Kings' motion for prejudgment interest.

DCSB appealed the entire adverse award and Three Kings cross-appealed for prejudgment interest. The Third District Court of Appeal affirmed the judgment of the trial court with the exception of the language "for which sum let execution issue" which permitted execution of the judgment against DCSB. The district court held that (1) common law indemnity was not available due to the jury's finding of no

Page 642

special relationship and (2) Three Kings was entitled to relief under a theory of equitable subrogation despite the fact that the issue had not been raised until after the verdict. The district court did not discuss the issue of contractual indemnity.

This Court granted DCSB's petition for review on the basis of conflict with Arky, Freed and Dober. In Arky, Freed, this Court concluded that, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. In Dober, this Court held that it was inappropriate to raise an affirmative defense for the first time on appeal from a summary judgment. Arky, Freed and Dober conflict with the ruling in Radio Station WQBA which allowed recovery based on the doctrine of equitable subrogation, a theory which was never pled and was raised for the first time post-verdict. This opinion resolves this conflict. Additionally, this opinion recognizes and resolves further conflict between the opinion below and the opinion of the Fifth District Court of Appeal in West American Insurance Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204 (Fla. 5th DCA 1986), regarding the proper application of the doctrine of equitable subrogation. Cf. Jacobson v. State, 476 So.2d 1282, 1285 (Fla.1985) ( "Having jurisdiction, we have jurisdiction over all issues, Savoie v. State, 422 So.2d 308 (Fla.1982), and dispose of the case on a ground other than the conflict ground."). Finally, this opinion addresses all three theories of recovery which were raised by Three Kings in this case.

COMMON LAW INDEMNIFICATION

We agree with the district court that Three Kings cannot be successful on a claim of common law indemnity. For a party to prevail on a claim of common law indemnity, the party must satisfy a two-prong test. First, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. See K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986); see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship between the parties in order for common law indemnification to exist. See Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979).

Three Kings' claim of common law indemnification was presented to a jury. Contained on the verdict form was a special interrogatory which required the jury to answer the following question:

Whether a special relationship existed between Radio Station WQBA and City of Miami, as parade sponsors, and Dade County School Board, whereby the parade sponsors are technically, derivatively, or vicariously responsible for any negligence of Dade County School Board?

The jury answered the question in the negative. A review of the trial transcript does not expose a situation which would allow this Court to set aside this jury finding. See Wheeler v. Yellow Cab Co., 66 So.2d 501, 504 (Fla.1953) (stating that it is appropriate for an appellate court to set aside a jury verdict only when it is so contrary to the manifest weight of the evidence that the verdict must have been the result of sympathy, passion, prejudice, or mistake or reflects an arbitrary or capricious weighing of the evidence); Helman v. Seaboard Coast Line R.R. Co., 349 So.2d 1187, 1189-90 (Fla.1977). In finding that there was no special relationship between Three Kings and DCSB, the jury's verdict precludes Three Kings from recovery on a claim of common law indemnity.

CONTRACTUAL INDEMNIFICATION

At trial, Three Kings also sought recovery under the theory of contractual indemnification. 7

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7 Three Kings was granted summary judgment on the...

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