Christiani v. Popovich

Citation363 So.2d 2
Decision Date10 August 1978
Docket NumberNos. X-265,Z-113,X-266 and Z-112,s. X-265
PartiesNadio and Livio CHRISTIANI and Reserve Insurance Co., Appellants, v. John POPOVICH et al., Appellees. GOODINGS MILLION DOLLAR MIDWAY and Reserve Insurance Co., Appellants, v. John POPOVICH et al., Appellees.
CourtFlorida District Court of Appeals

Harry E. Barr and Charles Timmel of Timmel, Campbell & Barr, Fort Walton Beach, for appellants.

Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellees Pensacola Interstate Fair, Inc. and United States Fidelity & Guaranty Co.

G. Miles Davis of Beggs & Lane, Pensacola, for appellee Gulf Power Co.

SMITH, Judge.

John Popovich, a fairground concessionaire, sued appellants Nadio and Livio Christiani, Goodings Million Dollar Midway, Inc. ("Midway") and their insurer, as well as appellees Pensacola Interstate Fair, Inc. ("Fair"), its insurer, and Gulf Power Company for the wrongful death of Popovich's wife, Simone. She was electrocuted when power from Gulf Power's overhead high-voltage line arced to the nearby Pirate's Den, an amusement owned and built by the Christiani defendants, and thence to the Popovich trailer. Those structures were on property owned by defendant Fair, for whom defendant Midway provided and managed fair amusements and concessions, including the Christianis' Pirate's Den. Popovich alleged negligence by Midway and the Christiani defendants in placing the tall Pirate's Den dangerously near the power line; negligence by the landowner, Fair, in permitting that to be done; and negligence by Gulf Power in maintaining and operating its power line.

The pleadings were settled and the case was tried before June 12, 1975, when the Uniform Contribution Among Tortfeasors Act took effect. 1 Chapter 75-108, Laws of Florida (1975), as amended, Section 768.31, Florida Statutes (1977). Certain of the defendants cross-claimed for indemnity against one another, each conceiving that its potential liability to plaintiff Popovich was for passive negligence only, and that the others were actively negligent. In November 1974 the court granted defendant Fair a summary judgment, finding no liability; and from that judgment timely appeals were taken by plaintiff Popovich (No. X-76) and by the indemnity cross-claimants, the Christianis and Midway (Nos. X-265 and X-266). At the December 1974 trial of plaintiff's claim against defendants the Christianis, Midway, and Gulf Power, the court directed a verdict on liability for defendant Gulf Power. The jury returned a substantial verdict for plaintiff against defendants the Christianis and Midway. On June 18, 1975, judgment was entered for plaintiff against them and for defendant Gulf Power against all parties. The Christianis and Midway appealed from the judgment against them (Nos. Z-112 and Z-113) and plaintiff Popovich appealed from the judgment exonerating Gulf Power (No. Z-120).

While these appeals were pending, the judgment debtors satisfied plaintiff's judgment and obtained from him a purported assignment of the right to prosecute his appeals in Nos. X-76 and Z-120. On motion by appellees Fair and Gulf Power, showing that plaintiff's judgment had been satisfied, we held the assignment for naught and dismissed plaintiff's appeals which the Christianis and Midway had sought to carry on in their own right. 2

Before us now are the consolidated appeals by the Christianis and Midway from the final summary judgment entered for defendant Fair and from the judgment entered on the directed verdict for defendant Gulf Power. Those appeals present the following issues:

First, whether the Contribution Among Tortfeasors Act, Section 768.31, is applicable although it was not effective until June 12, 1975, several months after the summary judgment for Fair and after the trial which resulted, on June 18, 1975, in the entry of judgment for Gulf Power and for plaintiff against the remaining defendants. We hold that the Contribution Act is applicable.

Second, whether the judgment defendants, the Christianis and Midway, may by appeals complain of asserted error in the judgments which exonerated codefendants Fair and Gulf Power of liability to plaintiff. We hold that they may.

And third, whether there was error in the summary judgment for Fair and the directed verdict for Gulf Power. We hold that Fair did not demonstrate its nonliability to plaintiff by motion for summary judgment and that, on the evidence at trial, a jury might have found Gulf Power actionably negligent. Consequently, though the errors are harmless to plaintiff, who accepted full satisfaction of his judgment from appellants Midway and the Christianis, we reverse the judgments exonerating Fair and Gulf Power and remand for further proceedings against them on appellants' claims for contribution.

I.

The Contribution Among Joint Tortfeasors Act is by its terms applicable "to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tortfeasors are involved and to cases thereafter filed." Section 768.31(7), Florida Statutes (1977). As stated above, the summary final judgment for Fair was entered November 21, 1974, and the judgment for Gulf Power and for plaintiff against appellants was entered June 18, 1975, after a December 1974 trial and verdict.

Because the litigation affecting the responsibilities between appellants and Gulf Power was pending in the trial court and the appeals affecting appellants' claims against Fair were pending here when the Contribution Act became effective June 12, 1975, the Act is applicable to these appeals notwithstanding that contribution issues were not pleaded or otherwise raised when the case was pending before trial. Rader v. Variety Children's Hospital, 323 So.2d 564 (Fla.1975), conformed to, 328 So.2d 506 (Fla. 3d DCA 1976), and 328 So.2d 507 (Fla. 3d DCA 1976); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977), Cert. denied, 353 So.2d 680 (Fla.1977). See also Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Shealy v. Clark Constr. Co. of Ocala, Inc., 323 So.2d 11 (Fla. 1st DCA 1975).

Section 768.31(7) applies the Contribution Act to all "pending" cases in which the rights of contribution among the joint tortfeasors are "involved." The quoted language does not mean that the Act applies only when contribution rights were "involved" in the sense of having been raised by pleadings prior to June 12, 1975. But cf. Warn Industries v. Geist, 343 So.2d at 47, (noting that the contribution claimant had made a motion requesting accelerated application of the Act, denied by trial court order on May 15, 1975). To so hold would attribute determinative effect to pleadings which had no basis in the law before the Contribution Act was effective. It is sufficient that this case was pending on the critical date and that inchoate contribution rights were "involved" in the sense of being affected by the outcome. This is not a case comparable to Linder v. Combustion Engineering, Inc., 342 So.2d 474, 476 (Fla.1977), in which the Supreme Court prescribed particular timetables for application of a change in the common law. This case is governed instead by the familiar rule, as stated in Linder, 342 So.2d at 475, that;

In the absence of such a determination (of prospective application), the doctrine (of "strict liability") would be applied at the appellate level even though the question was not raised before the trial judge. We have held that on appellate review the issues must be resolved in accordance with the case law in effect at the time the appellate decision is rendered.

The only pleaded issues between the defendants in the trial court were issues of indemnity, which we do not confuse with contribution. See, E. g., Home Indemnity Co. v. Edwards, 360 So.2d 1112 (Fla. 1st DCA 1978). Appellants have not urged that there was error in the trial court's rulings insofar as they dismissed appellants' indemnity claims. Yet application of Section 768.31 requires consideration of whether appellants' inchoate contribution claims were extinguished by the judgments now properly before us by timely appeals, and whether appellants may here and now complain of that effect.

II.

As long as Florida law refused its process to enforce contribution among joint tortfeasors, a defendant adjudged liable to an injured party was held not aggrieved by the same judgment's exoneration of a codefendant. Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Jackson v. Florida Weathermakers, Inc., 55 So.2d 575 (Fla.1951). Denying appellate remedies to the judgment defendant, as against the exonerated codefendant, was consistent with the view that a judgment defendant is both immediately and ultimately responsible to satisfy plaintiff's judgment fully, and it is of no legitimate interest to him that a codefendant may have been improperly exonerated.

In the only reported decision we have found directly addressing the issue since Section 768.31 became effective, the District Court of Appeal, Third District, held that the contribution statute does not change prior law in this respect; and that a judgment defendant may not appeal and assign error in the judgment's exoneration of a codefendant. North Shore Hospital v. Martin, 344 So.2d 256 (Fla. 3d DCA 1977), Cert. denied, 353 So.2d 677 (Fla.1977). As North Shore noted, we suggested a contrary result by Dicta in Liberty Mutual Ins. Co. v. Curtiss, 327 So.2d 82 (Fla. 1st DCA 1976), App. dism., 341 So.2d 291 (Fla.1976). For reasons there stated, and not repeated here, we suggested that a judgment defendant is demonstrably aggrieved by the exoneration of a codefendant, and we approvingly cited Minnesota decisions at common law allowing a judgment defendant to complain on appeal of the exoneration of a codefendant. E. g., Bocchi v. Karnstedt, 238 Minn. 257, 56 N.W.2d 628 (1953). We now hold that a right to appeal is...

To continue reading

Request your trial
16 cases
  • Seaboard Coast Line R. Co. v. Lantz
    • United States
    • Florida District Court of Appeals
    • November 3, 1981
    ...favored with a judgment will not prevent the operation of this estoppel if that judgment is later overturned. See Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), affirmed sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1981).4 Even when the trial court's a......
  • Holton v. H.J. Wilson Co., Inc.
    • United States
    • Florida Supreme Court
    • January 30, 1986
    ...final summary judgment entered in favor of their codefendant Fair. The issue focused upon by the First District, in Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), and subsequently this court, was whether the operators and Midway were entitled to appeal the judgment exonerating the......
  • Belcher v. First Nat. Bank of Miami
    • United States
    • Florida District Court of Appeals
    • October 27, 1981
    ...this error on appeal. In Popovich, supra, the Florida Supreme Court affirmed the decision of the First District in Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), and held that the right of a judgment defendant to appeal from a judgment exonerating another codefendant is a necessar......
  • Wilson v. Liberty Mut. Ins. Co., CASE NO. 1D10-1959
    • United States
    • Florida District Court of Appeals
    • March 16, 2011
    ...right to contribution from the co-defendant. U-Haul Co. of East Bay v. Meyer, 586 So. 2d 1327 (Fla. 1st DCA 1991); Christiani v. Popovich, 363 So. 2d 2 (Fla. 1st DCA 1978), approved sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So. 2d 1179 (Fla. 1980). In fact, a defendant in a ......
  • Request a trial to view additional results
1 books & journal articles
  • Parties on appeal.
    • United States
    • Florida Bar Journal Vol. 73 No. 5, May 1999
    • May 1, 1999
    ...v. Division of Admin., 344 So. 2d 1304, 1306 (Fla. 2d D.C.A. 1977), cert. denied, 358 So. 2d 135 (Fla. 1978). [5] Christiani v. Popovich, 363 So. 2d 2 (Fla. 1st D.C.A. 1978), approved, 389 So. 2d 1179 (Fla. [6] The appellate courts noted a second problem barring Holton's claim: He failed to......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT