Costco Wholesale Corp. v. Tampa Wholesale Liquor Co., Inc.
| Decision Date | 21 November 1990 |
| Docket Number | 90-00433,Nos. 90-00156,s. 90-00156 |
| Citation | 573 So.2d 347 |
| Parties | 15 Fla. L. Weekly D2853, Prod.Liab.Rep. (CCH) P 12,693 COSTCO WHOLESALE CORPORATION, a corporation, Appellant, v. TAMPA WHOLESALE LIQUOR CO., INC., a/k/a The House of Midulla, Inc., Appellee. COSTCO WHOLESALE CORPORATION, a corporation, Appellant, v. TYFIELD IMPORTERS, INC., Appellee. |
| Court | Florida District Court of Appeals |
Steven C. Davis of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Tampa, for appellant Costco.
David D. Neiser of Law Offices of J.A. Setchel, Tampa, for appellee Tampa Wholesale Liquor Co.
Michael A. Tonelli of Barr, Murman, Tonelli & Slother, P.A., Tampa, for appellee Tyfield Importers, Inc.
Costco Wholesale Corporation (Costco), appellant in these consolidated appeals, challenges the final summary judgments entered for appellees, Tampa Wholesale Liquor Co., Inc. (Tampa Wholesale) and Tyfield Importers, Inc. (Tyfield), in regard to Costco's third party complaints against Tampa Wholesale and Tyfield. Costco asks us to find that a retail seller of a defective product has a cause of action in indemnity against the intermediate sellers of that product when the defect in question was caused solely by the manufacturer of the product and not by the subsequent intermediate sellers in the chain of distribution. We decline to so hold and affirm the summary judgments for Tampa Wholesale and Tyfield.
Michael Hernandez was injured while attempting to open a bottle of wine. The wine was bottled in Italy by an Italian company, Giovanni Bosco Winery (GIBO), and remained in the original bottle throughout distribution. The bottle was imported from Italy to the United States by appellee Tyfield, which sold it to appellee Tampa Wholesale. Tampa Wholesale then sold the product to the retail seller, appellant Costco, who, in turn, sold the product to the ultimate consumer, Hernandez.
After Hernandez was injured, he brought an action in strict liability, choosing to sue only Costco as retailer of the allegedly defective product. Costco then brought its third party indemnity actions against both appellees, Tampa Wholesale and Tyfield. The manufacturer, GIBO, was not named as a party in any of the actions. For the purpose of the summary judgments below, the trial judge found, and it is conceded for the purpose of these appeals, that: (1) The defect existed in the product at the time it came into Costco's possession, custody and control; (2) the defect was latent and not susceptible of detection by Costco, Tampa Wholesale or Tyfield; (3) the act of selling a defective product is not active fault; (4) the defect was the proximate cause of Hernandez's injuries; and (5) Costco's liability as retailer of the defective product was solely vicarious, constructive, derivative or technical.
Costco relies upon the decision of the New Jersey Supreme Court in Promaulayko v. Johns Mansville Sales Corp., 116 N.J. 505, 562 A.2d 202 (N.J.1989) and K-Mart Corp. v. Chairs, Inc., 506 So.2d 7 (Fla. 5th DCA), rev. denied, 513 So.2d 1060 (Fla.1987). While the New Jersey Supreme Court's decision in Promaulayko is on point and is authority for Costco's position, we decline to follow the New Jersey court's approach. K-Mart, however, does not support Costco's position. In K-Mart, a retail seller who had been required to answer in strict liability to its injured purchaser of a defective product was permitted to seek indemnity against the wholesaler of the product. However, that holding was clearly based on a contract theory arising out of the express language in an invoice comprising part of the sales documents between the parties. Promaulayko, on the other hand, ventures down an entirely new path in regard to a third party plaintiff's rights to common law indemnity against others in the chain of distribution of a defective product who are themselves without fault.
Even if we were inclined to follow the path of Promaulayko, which we are not, we would be prevented from doing so by our supreme court's decision in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). Under the holding of Houdaille,...
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