Conklin v. Cohen
| Decision Date | 30 May 1972 |
| Docket Number | No. 71--847,71--847 |
| Parties | Joan CONKLIN, as widow of and as Administratrix of the Estate of the Deceased, Edward Donald Conklin, Appellant, v. Arthur COHEN et al., Appellees. |
| Court | Florida District Court of Appeals |
Feldman & Abramson, Miami, for appellant.
Preddy, Haddad, Kutner & Hardy, Richard M. Gale, Knight, Peters, Hoeveler, Pickle, Niemoeller, Flynn, Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Wicker, Smith, Pyska, Blomqvist, Davant, Miami, for appellees.
Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.
By this appeal, plaintiff in the trial court seeks review of an adverse final judgment dismissing the complaint in the lower court with prejudice.
From the record on appeal, it appears that one Edward Donald Conklin, husband of the plaintiff Joan Conklin, was employed as a workman on a building being erected in the City of Miami Beach, known as Arlen Beach Apartments when a scaffolding broke and he plunged 17 stories to his death. As a result thereof, the plaintiff brought an action against the appellees, Cohen, Levine, Rose, and Schmincke, d/b/a Arlen Beach Apartments and/or Arlen Two Company and/or Normal of Florida, Inc., as owners of the building; Morris Lapidus, the architect; Oboler and Clark, Inc., the engineering firm; the City of Miami Beach; and Zurich Insurance Compay, the workmen's compensation carrier for the contractor and subcontractor. The complaint basically alleged each of the appellees negligently breached their duty to provide the deceased with a safe place to work by failing to see that certain safety regulations were followed. It also alleged that the deceased was a third party beneficiary of certain agreements between some of the defendants. The appellees moved to dismiss the complaint for failure to state a cause of action and, after hearing thereon, the trial court entered the order of dismissal with prejudice. This appeal ensued. We affirm.
As to the owners, from the allegations of the complaint they were acting in concert with the general contractor and, therefore, they were entitled to the benefit of the immunity provided by § 440.11, Fla.Stat., F.S.A. As to the architect, the contract establishing his relationship with the project was not attached to the complaint. But, it is apparent that he would be entitled to the benefits of the decision in Allen v. Employers Service Corporation, Fla.App.1971, 243 So.2d 454. As to the engineers, their contract was with the general contractor and they were likewise entitled to the benefits of the decision in Allen v. Employers Service Corporation, supra. Further, it is apparent that they had no duty under their express contract to make safety inspections. As to the City of Miami Beach, it was conceded that there was no liability as to it, based on the decision of Modlin v. Washington Avenue Food Center, Inc., Fla.App.1965, 178 So.2d 596, affirmed Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70. As to the compensation carrier, having discharged its responsibility under the workmen's compensation act as a result of the death of the deceased, it was discharged from liability. Allen v....
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Protegrity Services, Inc. v. Brehm, 5D03-3274.
...Carroll, supra; Allen v. Employers Service Corporation, 243 So.2d 454 (Fla. 2d DCA 1971), cert. denied, 248 So.2d 167; Conklin v. Cohen, 262 So.2d 717 (Fla. 3d DCA 1972), aff'd in part, rev'd in part, 287 So.2d It has also been held that an employer's workmen's compensation liability extend......
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Carroll v. Zurich Ins. Co., S--408
...reservation in their conclusions. We particularly concur in and approve the following observation from the Third District, in Conklin v. Cohen, supra, on the broad aspect of the question, 'As to the compensation carrier, having discharged its responsibility under the workmen's compensation ......
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Sullivan v. Liberty Mut. Ins. Co., 77-1317
...Carroll, supra; Allen v. Employers Service Corporation, 243 So.2d 454 (Fla. 2d DCA 1971), cert. denied 248 So.2d 167; Conklin v. Cohen, 262 So.2d 717 (Fla. 3d DCA 1972), aff'd in part, rev'd in part 287 So.2d 56. In Carroll, Justice Drew, sitting as an associate judge with the First Distric......
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Conklin v. Cohen
...cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 262 So.2d 717. Our jurisdiction is based on conflict between the decision sought to be reviewed and Jones v. Florida Power Corp., 1 Smith v. Ussery, 2 St......