City of Clearwater v. L.M. Duncan & Sons, Inc.
| Decision Date | 05 April 1985 |
| Docket Number | No. 84-1016,84-1016 |
| Court | Florida District Court of Appeals |
| Parties | 10 Fla. L. Weekly 488, 10 Fla. L. Weekly 940 CITY OF CLEARWATER, Florida, a municipal corporation, Appellant, v. L.M. DUNCAN & SONS, INC., Appellee. |
Thomas A. Bustin, City Atty., Clearwater, for appellant.
Nelly N. Khouzam and Donald V. Bulleit of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee.
The trial court dismissed appellant's third-party complaint seeking indemnification from appellee pursuant to an express contract. We reverse.
Appellant (the "city") hired appellee to perform construction on property owned by the city. A contract was executed wherein appellee expressly agreed to indemnify the city from any claims resulting from appellee's negligence in connection with the construction. Appellant concedes that the contract of indemnity, under the law of Florida (hereafter discussed), does not, and cannot, extend to damages attributable to its independent or active negligence.
A worker employed by appellee sustained injuries as a result of a cave-in at the construction site. Appellee provided workers' compensation benefits to the injured employee as required by law. The worker thereafter brought suit against the appellant for the injuries he sustained based upon appellant's passively negligent failure to properly inspect, discover, and warn the claimant of the dangerous condition created by appellee's (his employer's) active negligence.
The city filed an amended third-party complaint against appellee based upon the indemnity clause contained in the contract between the parties. 1 Appellee filed a motion to dismiss the complaint, asserting immunity from the third-party complaint by virtue of section 440.11(1), Florida Statutes (1983), 2 because of the workers' compensation benefits appellee provided its injured employee. The trial court granted the motion to dismiss.
In Sunspan Engineering and Construction Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975), the supreme court held that a negligent third party's common law action for indemnification against a negligent employer whose injured employee had received workers' compensation benefits is not barred by section 440.11(1). The court found the statute unconstitutional as applied to facts similar to the case before us, the important distinction being that in Sunspan there was only a common law implied contract of indemnification. The supreme court's rationale was that a statute cannot abolish a common law right of action without providing a reasonable alternative to protect the people's rights to access to the courts and to equal protection under the law. The court noted that its holding did not "directly touch upon" whether a third-party action for true common law indemnification based upon an express contract would be barred by the statute. It appears that this caveat was prompted by the court's desire to avoid ruling on an issue which, while addressed by the trial court, was not properly before the supreme court for review. We believe that the holding in Sunspan applies as well to cases involving express contractual indemnity, where, as in this case, the contract of indemnity extends only to those losses the indemnitee suffers because of the negligence of the indemnitor.
The common law right of indemnity generally arises out of contract, express or implied. There is no right of common law indemnity except where the indemnitee is guilty, at most, of passive negligence. Where both joint tortfeasors are actively negligent, they are left solely to their statutory right of contribution, if any.
Seaboard Coast Line R.R. v. Smith, 359 So.2d 427 (Fla.1978), relied on by appellee, is clearly distinguishable. That case involved a third-party action by an active tortfeasor for implied indemnity and contribution from a joint tortfeasor who was an employer of the injured party under the Workers' Compensation Act. The court found no error in the dismissal of both third party claims....
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