Commercial Carrier Corp. v. Indian River County, 76-326

• Decision Date: 22 February 1977
• Docket Number: No. 76-326,76-326
• Citation: 342 So.2d 1047
• Parties: COMMERCIAL CARRIER CORPORATION and Merchants Mutual Insurance Company, Appellants, v. INDIAN RIVER COUNTY and State of Florida Department of Transportation, Appellees.
• Court: Florida District Court of Appeals

Page 1047

342 So.2d 1047

COMMERCIAL CARRIER CORPORATION and Merchants Mutual Insurance Company, Appellants, v. INDIAN RIVER COUNTY and State of Florida Department of Transportation, Appellees.

No. 76-326.

District Court of Appeal of Florida, Third District.

Feb. 22, 1977.

Rehearing Denied March 23, 1977.

Gerald M. Walsh & Associates, Fort Lauderdale, and Richard D. Heller, Miami, for appellants.

Larry K. White, Tallahassee, Stephens & Schwartz, Richard M. Gale, Miami, Winifred Sheridan Smallwood, Tallahassee, for appellees.

Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PEARSON, Judge.

The appellant Commercial Carrier Corporation and its liability insurer Merchants Mutual Insurance Company were defendants in the trial court to an action for personal injury resulting from the collision between a vehicle operated by Commercial Carrier Corporation and the plaintiff's. The collision occurred at an unmarked intersection at which there had previously been a stop sign governing the road upon which the Commercial Carrier vehicle was operating. Commercial Carrier and its liability insurer brought a third party complaint naming as defendants Indian River County, a political subdivision of the State of Florida, and the State of Florida, Department of Transportation, alleging as negligence the failure of Indian River County to maintain a stop sign at the intersection, and the failure of the Department of Transportation to paint or place onto the pavement the word 'stop' just prior to the entrance to the intersection. Upon the motions of the third party defendants, the third party claim was dismissed. This appeal is from that order. We affirm.

The appellant argues three points. The first concerns the propriety of venue in the Circuit Court of Dade County. This point was not ruled upon by the trial court inasmuch as it dismissed the third party complaint with prejudice. In view of our affirmance of the trial court's decision, we need not deal with the venue issue.

Appellant's second point urges that the effect of Section 768.28, Florida Statutes (1975) is a total waiver of sovereign immunity by the State, its agencies and subdivisions in tort actions and that, therefore, the order of dismissal could not properly be grounded upon sovereign immunity. We find it unnecessary to discuss this issue inasmuch as we hold that the facts stated in the complaint did not show negligence on the part of either Indian River County or the Department of Transportation.

Appellant's third point urges that Indian River County and the Department of Transportation are liable for contribution or for indemnity pursuant to Section 768.31, Florida Statutes (1975). Here again, we need not discuss that issue because the proper ground for the dismissal of the third party complaint was that it failed to state a cause of action. ¹ The allegations of the third party complaint concerning the liability of Indian River County are as follows:

'3. That on February 7, 1975 at the intersection alleged INDIAN RIVER COUNTY had the duty to maintain a stop sign controlling the traffic upon which the tractor trailer operated by COMMERCIAL CARRIER CORPORATION was proceeding. The road for which the sign is to govern traffic is North Winter Beach Road westbound traffic. That before and at the time of the...