City of Boca Raton for Use and Benefit of Standard Acc. Ins. Co. v. Sharp, 423
| Decision Date | 10 December 1958 |
| Docket Number | No. 423,423 |
| Parties | CITY OF BOCA RATON, a Municipal Corporation for the State of Florida for the USE and BENEFIT of the STANDARD ACCIDENT INSURANCE COMPANY, a foreign corporation, authorized to do business in the State of Florida, Appellant, v. K. L. 'Jack' SHARP, Appellee. |
| Court | Florida District Court of Appeals |
Miller, Hewitt, Cone & Wagner, West Palm Beach, for appellant.
Rogers, Morris & Ziegler, Fort Lauderdale, for appellee.
The appellant was the plaintiff below. This is an appeal from a summary judgment entered in favor of the defendant.
This was a subrogation suit brought against a party alleged to have contracted to repair and maintain a water tower of the City of Boca Raton. The contract contained an indemnity agreement. One Jesse Mattef fell from the tower and was fatally injured and there resulted a suit against the city by his widow, referred to hereinafter as the Mattef case. The present suit is for attorneys' fees, cost, and the cost of the settlement reached in the Mattef case.
In the Mattef case the city, which was the defendant, tried to bring in the appellee here as a third party defendant by including in its second amended complaint a cross complaint and an alternative cross-complaint. Appellee was not a party to that suit until brought in by the city. The claim upon which the cross-complaint and alternative cross-complaint were based was the same as the claim in the present suit. In the Mattef case the third party defendant filed a motion to dismiss on the ground that the second amended cross-complaint and alternative cross-complaint failed to state a claim upon which relief could be granted. The court entered an order granting the motion to dismiss, but failed to actually dismiss the cross-complaint.
Motion for summary judgment was filed in the present case by appellee. On October 30, 1957, the court entered an order of summary judgment in favor of appellee on the grounds of res judicata, the court construing 'such dismissal as being with prejudice and an adjudication of this case, pursuant to Rule 1.35(b) (30 F.S.A.)'. Petition for rehearing was denied after hearing, and this appeal was instituted.
In the case of Pan American Surety Company v. Jefferson Construction Company (District Court of Appeal, Third District), 99 So.2d 726, Judge Carroll wrote:
'Rule 1.13(8), 1954 Florida Rules of Civil Procedure, 30 F.S.A., makes provision for joining additional parties in connection with a counterclaim (against a plaintiff) or on a cross-claim (against a co-party in the case). The Florida rule is similar to Rule 13(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Federal Rule...
To continue reading
Request your trial
-
Brown v. Brown
...independent action. See, e.g., Miami Super Cold Co. v. Giffin Industries, Inc., 178 So.2d 604 (Fla. 3d DCA 1965); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958). See also Board of Public Instruction of Dade County v. Dinkines, 278 So.2d 663 (Fla. 3d DCA 1973) (recognizing tha......
-
Hook v. Bay Financial Sav. Bank
...denied, 386 So.2d 639 (Fla.1980); Miami Super Cold Co. v. Giffin Indust., Inc., 178 So.2d 604 (Fla. 3d DCA 1965); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958); Mabson v. Christ, 104 Fla. 606, 140 So. 671 ...
-
Miami Super Cold Co. v. Giffin Industries, Inc.
...See Pan American Surety Company v. Jefferson Construction Company, Fla.App.1958, 99 So.2d 726. And, as held in City of Boca Raton v. Sharp, Fla.App.1958, 107 So.2d 271, such dismissial of the attempted third party claim against Giffin was for want of jurisdiction and not on any other ground......
-
Brady v. P3 Grp. LLC
...184 So.2d 908 (Fla. 4th DCA 1966); Pan Am. Surety Co. v. Jefferson Constr. Co., 99 So.2d 726 (Fla. 3d DCA 1958); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958); see generally, Dennis J. McGillicuddy, Note, Third–Party Practice, 18 U. Fla. L. R. 94 (1965). Thus, it is quite cl......