Armor Elevator Co., Inc. v. Elevator Sales & Service Inc.

• Decision Date: 18 February 1975
• Docket Number: No. 74--435,74--435
• Citation: 309 So.2d 44
• Parties: ARMOR ELEVATOR COMPANY, INC., a Delaware Corporation, Appellant, v. ELEVATOR SALES & SERVICE, INC., a Florida Corporation and Consolidated Mutual Insurance Company, a New York Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 44

309 So.2d 44

ARMOR ELEVATOR COMPANY, INC., a Delaware Corporation, Appellant, v. ELEVATOR SALES & SERVICE, INC., a Florida Corporation and Consolidated Mutual Insurance Company, a New York Corporation, Appellees.

No. 74--435.

District Court of Appeal of Florida, Third District.

Feb. 18, 1975.

Rehearing Denied March 26, 1975.

Papy, Levy, Carruthers & Poole, Coral Gables, and Steven J. Cohen, Miami, for appellant.

Fuller, Brumer, Moss, Cohen & Rodgers, Horton, Perse & Ginsberg, Miami, for appellees.

Before PEARSON, HENDRY and NATHAN, JJ.

PEARSON, Judge.

Armor Elevator Company, Inc., has brought this appeal from a summary final judgment entered for certain third party defendants who are the appellees here. Armor was sued in a wrongful death action by Juanita Wood as the surviving spouse of Henry Wood, deceased. Thereafter, Armor, as third party plaintiff, brought a third party complaint seeking indemnity against Elevator Sales & Service, Inc., and its insurer. After answer, the third party defendants moved for a summary judgment upon the ground that the third party complaint was not a proper action for indemnity under the facts of the case. The summary judgment was entered and this appeal followed.

Because this is an appeal from a summary judgment, the party moved against, in this case Armor, is entitled to have the facts before the trial judge viewed with the benefit of all inferences against the motion. Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404 and cases cited therein. Therefore, we adopt the following statement of facts from appellant's brief.

'The Deceased, Henry Wood, was killed on March 25, 1970, and the complaint for damages was filed April, 1971, against Armor for wrongful death based on the alleged negligent design of a certain elevator manufactured by Armor. On May 2, 1973, an order was entered granting Armor its motion for leave to file a third-party complaint against Elevator for indemnity and for the active negligence of Elevator in installing the elevator which is the basis of the original complaint. Elevator's motion to dismiss the third-party complaint was denied on July 6, 1973, and said Third-party defendant was required to answer. Elevator's motion for summary judgment was filed on September 19, 1973, but was not noticed for hearing until Friday, February 8, 1974, just two days before the hearing was set on the motion for Monday morning just before trial was scheduled to commence. On the morning of February 11, 1974, just before the trial was to commence, summary judgment was granted in favor of Elevator against Armor before starting the trial on the original complaint. On February 19, 1974, Elevator filed its motion for relief pursuant to Rule 1.540, which motion was not heard or ruled on by the court. This appeal arises from the court's order granting final summary judgment in favor of Elevator against Armor.

'The decedent, Henry Wood, was an elevator mechanic employed by Elevator and was the foreman in charge of installing an elevator manufactured by Armor and sold to Elevator. Armor had nothing whatsoever to do with the installation of the elevator, it merely sold and shipped an elevator manufactured by it to Elevator.

'During the early part of constructing the elevator shaft and installing the elevator, the decedent Henry Wood and several Elevator employees...