Bodin Apparel, Inc. v. Superior Steam Service, Inc., 75--442
| Citation | 328 So.2d 533 |
| Decision Date | 09 March 1976 |
| Docket Number | No. 75--442,75--442 |
| Court | Court of Appeal of Florida (US) |
| Parties | BODIN APPAREL, INC., a Florida Corporation, Appellant, v. SUPERIOR STEAM SERVICE, INC., a Florida Corporation, et al., Appellees. |
Stephens, Thornton & Schwartz and Lawrence A. Fuller, Miami, for appellant.
Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
This is an appeal by Bodin Apparel, Inc., defendant and third party plaintiff in the trial court, from an order granting with prejudice, the motion of third party defendants, Superior Steam Service, Inc., and Clarence H. McMillen, Mary C. McMillen and Lena A. Harley, to dismiss the third party complaint filed against them in a wrongful death action.
The action commenced when the plaintiff, Lena A. Harley, as wife and administratrix of the estate of Norman T. Harley, deceased, filed a complaint for damages for the death of Norman T. Harley by electrocution when he came in contact with an uninsulated high voltage power line while working installing equipment on the roof of Bodin Apparel, Inc.'s premises. The complaint alleged that the deceased, as vice president of Superior Steam Service, Inc., was engaged by Bodin Apparel to install equipment on the roof. Harley was performing work on Bodin Apparel's roof, as an employee of Superior Steam, when he was electrocuted. The complaint alleged active negligence on the part of Bodin Apparel. Bodin answered the plaintiff's complaint and filed a third party complaint against Superior Steam Service, Inc., as employer of the deceased, and against its officers and board of directors, individually, one of whom is Lena A. Harley, the plaintiff. The third party defendants filed a motion to dismiss, the motion was granted with prejudice and this appeal ensued.
Bodin Apparel contends that the trial court erred in dismissing the third party complaint. We agree in part. In Central Truck Lines, Inc. v. White Motor Corporation, Fla.App.1975, 316 So.2d 579, we held that a defendant is not 'locked in' by an allegation in the plaintiff's complaint that the defendant is the active tort-feasor, thus precluding the defendant from alleging in a third party complaint that he is but a passive tort-feasor and that the third party defendant is the active tort-feasor and defeating the maintenance of a third party claim in the same action. The fact that plaintiff Harley alleged that Bodin Apparel was the actively negligent party, does not preclude defendant Bodin from filing a third party claim alleging that, if it (Bodin) was negligent, its negligence was merely passive, in contrast to the active negligence of the third party defendant(s) and that, therefore, it (Bodin) is entitled to be indemnified.
We find, however, that the McMillens and Lena Harley, the officers and directions of Superior Steam, Inc., are not subject to individual...
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