F.H.W. & C., Inc. v. American Hosp. of Miami, Inc., for Use and Benefit of Florida Hosp. Trust Fund, 89-2423

• Decision Date: 22 January 1991
• Docket Number: No. 89-2423,89-2423
• Citation: 575 So.2d 1300,16 Fla. L. Weekly 237
• Parties: 16 Fla. L. Weekly 237 F.H.W. & C., INC., d/b/a Findeiss, Haeck, Westmark & Creed, Inc., and Emergency Medical Services Associates, Inc., Appellants, v. AMERICAN HOSPITAL OF MIAMI, INC., for the Use and Benefit of FLORIDA HOSPITAL TRUST FUND, Appellee.
• Court: Florida District Court of Appeals

Page 1300

575 So.2d 1300

16 Fla. L. Weekly 237

F.H.W. & C., INC., d/b/a Findeiss, Haeck, Westmark & Creed, Inc., and Emergency Medical Services Associates, Inc., Appellants, v. AMERICAN HOSPITAL OF MIAMI, INC., for the Use and Benefit of FLORIDA HOSPITAL TRUST FUND, Appellee.

No. 89-2423.

District Court of Appeal of Florida,

Third District.

Jan. 22, 1991.

Rehearing Denied April 9, 1991.

Parenti & Falk and Norman M. Waas, Miami, for appellants.

Adams, Hill, Fulford, Reis, Adams & Hall and John D. Bang and Gregory Reis, Orlando, for appellee.

Before BARKDULL, JORGENSON and LEVY, JJ.

PER CURIAM.

This is an appeal from a final judgment for the appellee (third party plaintiff) in an action wherein the third party plaintiff sought indemnity and/or contribution for those funds the third party plaintiff paid to settle a medical malpractice action. There can be no question that § 768.31, Florida Statutes (1989) is applicable to the instant case. See § 768.31(7), Florida Statutes (1989); Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). Thus the only question is whether under the facts of this case it meets the criteria set forth in § 768.31, Florida Statutes (1989) to merit contribution.

In the medical malpractice case, pursuant to stipulation, it was agreed that there would be a total settlement by all The appellant argues that there is no right of contribution because none of the alleged tortfeasors individually extinguished the full responsibility to the plaintiff. Woods v. Withrow, 413 So.2d 1179 (Fla.1982). If this is the case then the purpose of the Act, to encourage settlement with the plaintiff, would not be fulfilled. The appellant misreads Woods v. Withrow. Woods states that a tortfeasor who settles with the plaintiff is entitled to contribution if the settlement also releases the tortfeasors from whom contribution is sought and in the case of two joint tortfeasors the right of a settling tortfeasor to contribution from the other would depend on whether the injured plaintiff has accepted this settlement as a complete satisfaction and has given a complete release. Here a complete release was given for monies received from the various defendants, and the plaintiff accepted the settlement as a complete satisfaction.

defendants of $147,166.66, Dr. Loredo would pay $45,833.33, the hospital would pay a like sum of $45,833.33, and Dr. Fernandez would pay $55,500.00. It was further agreed that all amounts paid by the hospital were solely for the vicarious claim for Dr. Loredo and that there were no valid active negligence claims against the hospital. ¹ Further the plaintiff's claim against all defendants pursuant to the stipulation was dismissed with prejudice. Findeiss, the appellant, paid the $45,833.33 for Dr. Loredo because his insurance carrier was not able to pay. Thus, the active tortfeasor, Dr. Loredo, did not participate in the settlement and the liability common to Dr. Loredo and the appellee and appellant herein for his negligence was discharged by the two passive tortfeasors. That the two parties herein may be passive tortfeasors, should not preclude the application of the principles of contribution where a common liability to an injured party was completely discharged.

Section 768.31(3) (1989) contains three provisions on how the pro rata shares of tortfeasors in the entire liability are to be determined:

(a) Their relative degrees of fault shall be the basis for allocation of liability.

(b) If equity requires, the collective liability of some as a group shall constitute a single share.

(c) Principles of equity applicable to contribution generally shall apply. (§ 768.31(3) (1989))

Paragraphs (b) and (c) are the same as when originally enacted. However, as originally enacted in 1975, the Uniform Contribution Among Joint Tortfeasors Act, Section 768.31 provided in Paragraph 3(a), that in determining the pro rata shares of the tortfeasors in the entire liability, relative degrees of fault shall not be considered. § 768.31, Florida Statutes (1975); Lincenberg v. Issen, supra. Therefore, under the uniform act as originally adopted, "pro rata shares" meant the entire liability is allocated evenly among the tortfeasors, except where equitable principles call for some variance from that formula by virtue of Paragraphs (b) or (c). Woods v. Withrow, supra.

In 1976, the legislature amended Paragraph 3(a) to provide for consideration Paragraph 3(b) invokes the rule of equity which requires class liability, including the common liability arising from vicarious relationships, to be treated as a single share. For instance, the liability of a master and servant for the wrong of a servant should in fairness be treated as a single share. Lincenberg, supra.

of relative degrees of fault in determining pro rata shares. Under that amendment to the act, no longer is the entire liability allocated evenly among the tortfeasors as a starting point but rather it is allocated based upon relative degrees of fault.

In addition to the above rules to apportion pro rata shares, Paragraph 3(c) allows for variance from the formula based upon equitable principles generally. Thus, under the act now, the initial determination of pro rata shares is based on relative degrees of fault, but is still subject to variance by virtue of the equitable principles of Paragraphs 3(b) and 3(c).

It was stipulated by all parties that the amount paid by or on behalf of the hospital for settlement was entirely for the vicarious claim against it for Dr. Loredo. ² As between the appellant, the appellee, and Dr. Loredo, Dr. Loredo was the only one with any active fault. Class liability requires that the appellant, Findeiss, and Dr. Loredo be treated as a single share ³ since the appellant provided him to the hospital and paid him. Thus, the allocation of liability based on fault pursuant to § 768.31(3)(a) requires that the final judgment be affirmed.

Therefore, the final judgment appealed herein is hereby affirmed.

Affirmed.

BARKDULL and LEVY, JJ., concur.

JORGENSON, Judge, dissenting.

I respectfully dissent. In my view, the final judgment in favor of the hospital represents a misapplication of the law of indemnity and contribution.

Indemnity is a right "which inures to a person who has discharged a duty which is owed by him but which, as between himself and another, should have been discharged by the other." Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). In order to sustain an action for indemnity, the party seeking indemnity must establish that the indemnitee was faultless and that the indemnitor was at fault. Houdaille Inds., Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, 385 So.2d 676 (Fla. 3d DCA 1980). Here, the indemnitee, the hospital, was sued solely for passive negligence. Moreover, the parties stipulated that Dr. Loredo was not an employee of the indemnitor, Findeiss, but was an independent contractor. Findeiss never exercised control over Dr. Loredo's professional judgment. In view of the arrangement between Findeiss, Dr. Loredo, and the hospital, it is clear that neither party to this action was an active tortfeasor. Therefore, no cause of action for indemnity against Findeiss can be sustained on these facts.

The hospital's contention that the nondelegable duty exception to the indemnity rule, see Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959) (defense in indemnity action that independent contractor's negligence cannot be imputed to principal not applicable where principal holds himself out to plaintiff as primary purveyor of goods or services), cert. denied, 119 So.2d 293 (Fla.1960), applies here is without merit. The only duties imposed upon Findeiss with respect to the hospital were to supply, schedule, and compensate emergency room physicians. The hospital specifically reserved the right to assess the competence of physicians presented by Findeiss through control of the credentialling process. The hospital also held itself out to the public as the purveyor of emergency medical care. Accordingly, on these facts Findeiss did not have a nondelegable duty to supply nonnegligent medical treatment in this case.

I would likewise conclude that the hospital is not entitled to contribution from Findeiss. A party seeking contribution must "allege facts showing that the negligence of the party from whom he seeks contribution combined with his own to cause the damage for which the plaintiff seeks recovery." Robert L. Turchin, Inc. v. Gelfand Roofing, Inc., 450 So.2d 554 (Fla. 3d DCA) (citation omitted), rev. dismissed sub nom, Napoleon Steel Contractors, Inc. v. Gelfand Roofing, Inc., 453 So.2d 1365 (Fla.1984). Section 768.31, Florida Statutes (1989), Florida's Contribution Among Tortfeasors Act, explains that "[t]he right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability ... [and] [no] tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability." § 768.31(2)(b), Fla.Stat. (1989). "In determining the pro rata shares of tortfeasors in the entire liability, their relative degrees of fault shall be the basis for allocation of liability, and if equity requires, the collective liability of some as a group shall constitute a single share." § 768.31(3), Fla.Stat. (1989).

In order to prevail on a contribution claim under the statute, it must be proven that there was a common liability; both parties must have been negligent. West American Ins. Co. v. Yellow Cab Co., 495 So.2d 204 (Fla. 5th DCA 1986), rev. denied, 504 So.2d 769 (Fla.1987). Lincenberg v. Issen, 318 So.2d 386, 393 (Fla.1975), the case relied on by the majority, interprets the statute as treating common liability arising from vicarious relationships as a single share for contribution purposes. However, Findeiss was not vicariously at fault in this case. As stated previously, Dr. Loredo was an independent...