Atlantic Nat. Bank of Florida v. Vest, 84-1468
| Decision Date | 25 October 1985 |
| Docket Number | No. 84-1468,84-1468 |
| Citation | 10 Fla. L. Weekly 2413,480 So.2d 1328 |
| Parties | 10 Fla. L. Weekly 2413 ATLANTIC NATIONAL BANK OF FLORIDA, Appellant, v. James C. VEST, Appellee. |
| Court | Florida District Court of Appeals |
William A. Seacrest of Haas, Boehm, Brown, Rigdon, Seacrest and Fischer, P.A., Lakeland, for appellant.
Robin Gibson of Gibson, Connor & Lilly, Lake Wales and John W. Frost, II of Frost & Purcell, P.A., Bartow, for appellee.
The Atlantic National Bank of Florida appeals from a final judgment entered in favor of appellee, James C. Vest. The judgment was entered pursuant to a jury verdict in connection with Vest's third party complaint. We reverse.
The initial complaint filed in the trial court sought damages as a result of an accident involving an automobile driven by Daniel Lee, the appellee's stepson, but the events leading up to the appeal occurred prior to the accident. Vest, in order to help his stepson finance an automobile, agreed to co-sign a promissory note. The bank was not willing to give a loan to the stepson, but would approve the loan if Vest, a long-time customer of the bank, was willing to co-sign.
Vest made final arrangements for the loan through Louise Goolsby, a loan officer with Atlantic National Bank. After the loan officer contacted Vest's insurance agent and confirmed that the car had been insured, Vest informed the loan officer that he wanted to avoid liability in the event his stepson was involved in an accident, but also wanted the power to dispose of the automobile were his stepson to become delinquent in the required loan payments. Vest asked whether he would be liable if the title was placed in the name of "Lee or Vest." The loan officer stated that she did not know. At Vest's request she placed a call to obtain the information. Vest testified he did not know who the loan officer called. The loan officer testified that she called back Vest's insurance agent and that she relayed to Vest the agent's statement that no liability would be incurred if the stepson were twenty-five years or older and the title stated "or." Although the loan officer did not state that she accepted this opinion, Vest testified that he assumed she was satisfied with it and that he therefore was also satisfied. He had the title placed in the name of "Lee or Vest." The answer had no effect on the loan transaction and Vest testified he would have completed the transaction had he received different information. He would not, however, have had his name put on the title. Vest knew the loan officer did not know the answer to his question, and knew that the opinion of nonliability if the title was in the name of "Lee or Vest" was not that of the loan officer.
Shortly after the loan transaction was completed and the title application made, Vest's stepson was involved in an accident with Alan J. Bradley. Mr. and Mrs. Bradley sued Lee, the stepson, as the driver and owner of the automobile and Vest as co-owner. After the accident, Bradley and Vest entered into an agreement which, in effect, provided that if Vest sued the bank, the Bradleys would accept, in satisfaction of their claim against him, whatever he received in the action, less costs and less fifteen per cent toward attorney fees. 1 Vest then filed a third party complaint seeking indemnity against the bank. The complaint set forth two theories: first, the bank was guilty of negligent misrepresentation because the loan officer's statement was made while acting within the scope of her employment; second, the bank had breached its fiduciary duty to Vest.
The bank's motion for a directed verdict, made at the close of Vest's case-in-chief and renewed at the close of all of the evidence, was denied. The jury returned a special verdict form finding that the bank had negligently supplied false information upon which Vest had justifiably relied and that the bank had breached its fiduciary duty to Vest. The jury awarded the Bradleys $1,250,000 in damages and found that the bank was obligated to pay that sum to Vest. The court then ordered the bank to pay the Bradleys' costs and Vest's attorney fees. The bank filed a timely notice of appeal.
In reviewing a ruling denying a defendant's motion for directed verdict, we properly consider all the evidence presented in the trial court. Lake Parker Mall, Inc. v Carson, 327 So.2d 121, (Fla. 2d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977). Even construing all testimony in a light most favorable to Vest, see Paiken v. Beach Cabs, Inc., 187 So.2d 93 (Fla. 3d DCA), cert. denied, 192 So.2d 496 (Fla.1966), we find the trial court erred in not directing a verdict for the bank.
Indemnity has been generally defined as a right that inures to a person who has discharged a duty that is owed by him but which, as between himself and another, should have been discharged by the other. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). In Florida, actions for indemnity have been restricted to situations involving either a duty, an express contract, or the existence of active and passive negligence. Stuart. Vest does not contend that his right to indemnity arises out of an express contract; he contends his rights arise out of either active and passive negligence or breach of a duty.
We reject Vest's contention that he has a right to indemnity because of the existence of active and passive negligence. 2 Indemnity between tortfeasors is allowable only where the whole fault is in the one against whom indemnity is sought. Houdaille; Stuart. This distinguishes indemnity from contribution, where a defendant is charged only with a ratable proportion of the negligence. Indemnity shifts the entire loss from one who, without active negligence or fault, has been obligated to pay another because of some vicarious, constructive, derivative, or technical liability.
A judgment cannot properly be awarded against the bank in this case because the whole fault was not in the bank, and the bank cannot be held vicariously or constructively liable for the stepson's acts. Even more important, the Bradleys' injuries did not result from the same actions that allegedly caused the bank to breach its duty to Vest. The bank allegedly breached its duty to Vest by conveying incorrect information concerning the manner in which a car should be titled. The Bradleys were not injured by Vest's receipt of incorrect information; they were injured by the stepson's negligent operation of a motorcycle.
Although Vest, the party seeking indemnity, is without fault in this case, he did not become constructively liable to pay the Bradleys because of the bank's wrongdoing, but because of his stepson's wrongdoing. Vest, therefore, would have the right to be indemnified, not by the bank, but by his stepson.
Apart from failing to establish the requisite relationship in order to prevail in an action for indemnity, Vest failed to present evidence from which the jury could have properly found, in a direct cause of action against the bank, breach of a duty through negligent misrepresentation. In order to be actionable, a suit for negligent misrepresentation must contain the following elements: (1) misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the the representation without knowledge as to its truth or falsity, or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend that the representation induce another to act on it; (4) injury must result to the party acting in justifiable reliance on the misrepresentation. Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699 (Fla. 4th DCA), pet. for rev. denied, 408 So.2d 1093 (Fla.1981); Joiner v. McCullers, 158 Fla. 562, 28 So.2d 823 (1947); Kutner v. Kalish, 173 So.2d 763 (Fla. 3d DCA), cert. denied, 183 So.2d 210 (Fla.1965).
We find two elements missing in Vest's cause of action. First, the misrepresentation was not one of a material fact. 3 A fact is material if, but for the alleged nondisclosure or misrepresentation, the complaining party would not have entered into the transaction. Hauben v. Harmon, 605 F.2d 920 (5th Cir.1979); Morris v. Ingraffia, 154 Fla. 432, 18 So.2d 1 (1944). Although materiality normally is a question of fact, see Hauben; Biscayne Boulevard Properties, Inc. v. Graham, 65 So.2d 858 (Fla.1953), the facts in this case are undisputed. The transaction between Vest and the bank was one in which Vest was co-signing a promissory note so that his stepson could purchase an automobile. Vest testified he would have completed the transaction with or without the alleged misrepresentation. The fact that he would have titled the automobile differently...
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