Budweiser-Busch Distributing Co., Inc. v. Keystone Lines, a Div. of Transcon Lines, BUDWEISER-BUSCH

• Decision Date: 10 November 1992
• Docket Number: 91-3923,Nos. 91-3922,BUDWEISER-BUSCH,s. 91-3922
• Citation: 607 So.2d 503
• Parties: 17 Fla. L. Week. D2569 DISTRIBUTING CO., INC., Appellant, v. KEYSTONE LINES, A DIVISION OF TRANSCON LINES, a California corp., and Transport Insurance Company, formerly Transport Indemnity Company, Appellees.
• Court: Florida District Court of Appeals

Page 503

607 So.2d 503

17 Fla. L. Week. D2569

BUDWEISER-BUSCH DISTRIBUTING CO., INC., Appellant, v.KEYSTONE LINES, A DIVISION OF TRANSCON LINES, a California corp., and Transport Insurance Company, formerly Transport Indemnity Company, Appellees.

Nos. 91-3922, 91-3923.

District Court of Appeal of Florida,

First

District.

Nov. 10, 1992.

Richard M. Denney, Ft. Walton Beach, and Ralph O. Anderson, of Hicks, Anderson & Blum, Miami, for appellant.

Thomas E. Wheeler, Jr., of Bell, Schuster & Wheeler, Pensacola, for appellees.

SMITH, Judge.

Appellant, Budweiser-Busch Distributing Company, Inc.(Budweiser) appeals two orders granting summary judgment for appellees Keystone Lines, a trucking company, (Keystone) and its insurer, Transport Insurance Company in Keystone's indemnity suit against Budweiser and its insurers.¹Finding that the record clearly establishes the existence of genuine issues of material fact, we reverse.

This action arose on July 16, 1982, when Ken and Linda Horn, husband and wife, were killed in an automobile accident in which their vehicles were struck in the emergency lane of I-10 by a tractor-trailer rig owned and driven by Phil Naylor.Whether the accident was caused by driver error, equipment failure, or other conditions has not been established with certainty.At the time of the accident, Naylor's truck was displaying appellee Keystone's ICC placards, but it was carrying a shipment of beer bound for appellant Budweiser's Alabama warehouse.

The convoluted chain of events leading up to the fatal accident will be partially outlined only in a general way, without venturing into all the variations and permutations suggested by the voluminous discovery and the arguments of counsel with respect to these matters.Budweiser used several independent carriers to transport beer from Florida to Alabama.One of those carriers was Edwin Guadalupe, with whom Budweiser had a written truck lease agreement.The lease agreement had expired about six months before the accident in question; however, Guadalupe, along with others, continued to transport beer for Budweiser.Naylor became involved when Guadalupe needed to transport a load of beer from Tampa to Mobile, Alabama, for Budweiser, but was unable to make the delivery on time with his truck.Meanwhile, Naylor, an independent owner-operator regularly carrying goods for Keystone, had completed a trip from Tennessee to Miami, and was seeking another load for his northbound trip.Keystone's Orlando office suggested that he call Calvin Gray, in Pensacola, an authorized agent for Mercury Motors Express, Inc.Upon receiving Naylor's call, Gray telephoned Guadalupe, who informed Gray of the load of beer he needed to have transported from Tampa to Mobile for Budweiser.In behalf of Guadalupe, Gray arranged for Naylor to haul the beer.Guadalupe stated that he assumed that the carriage would be conducted using one of Gray's trucks, operating under a division of Mercury Motors Express.Guadalupe had no direct contact with Naylor, and Budweiser was unaware of Guadalupe's arrangement for the transport of the beer through Gray.Naylor initially assumed that the carriage in question was under the aegis of Keystone, and relied upon the Keystone placards on his truck to get through the truck inspection and weigh stations en route.

In the ensuing wrongful death action filed by the Horns' heirs against the instant parties and others, a partial summary judgment was entered finding appellee Keystone vicariously liable for Naylor's negligence.²Keystone did not challenge that judgment but instead settled the claims for $2.5 million.In exchange for that payment from Keystone, the Horns' heirs released all of the defendants from liability in their action.Thereafter, Keystone filed amended cross-claims and third-party claims seeking indemnity from Budweiser and Guadalupe for the amount paid to settle the wrongful death action.The trial court entered summary judgments in favor of Keystone against Budweiser, and this appeal followed.³

Under the law as cited to us by the parties, it appears to be settled that Keystone is entitled to indemnity only if its liability for the damages for which indemnity is sought is solely constructive or derivative, and indemnity cannot be imposed against Budweiser unless Budweiser's active negligence caused the damages.In other words, Keystone is not entitled to indemnity if, in addition to being vicariously liable for the...