Florida Farm Bureau Cas. Co. v. Batton

• Decision Date: 08 February 1984
• Docket Number: No. 82-1299,82-1299
• Parties: FLORIDA FARM BUREAU CASUALTY COMPANY, Appellant, v. Lacy R. BATTON, Sr., A.O. Glenn, d/b/a Glenn Electric Services, Inc., and the Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1128

444 So.2d 1128

FLORIDA FARM BUREAU CASUALTY COMPANY, Appellant, v. Lacy R. BATTON, Sr., A.O. Glenn, d/b/a Glenn Electric Services, Inc., and the Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, et al., Appellees.

No. 82-1299.

District Court of Appeal of Florida Fourth District.

Feb. 8, 1984.

Ronald S. Fanaro of Bernard F. Grall, Jr., P.A., Vero Beach, for appellant.

Michael Jeffries of Neill Griffin Jeffries & Lloyd Chartered, Fort Pierce, for appellees.

ANSTEAD, Chief Judge.

Florida Farm Bureau Casualty Company appeals the granting of summary judgment to the State of Florida in Florida Farm Bureau's action for contribution.

Lacy R. Batton, a general contractor, bid on a contract to construct a radar equipment and standby generator shelter for the State of Florida, Department of Highway Safety (State). Batton's bid was accepted and as part of the contract Batton executed an indemnity agreement which provides:

The contractor agrees to indemnify and save harmless, the purchaser, their agents or employees, from and against all loss or expense (including costs and attorneys' fees) by reason of liability imposed by law upon the purchaser for damages because of bodily injury, including death, at the time therefrom, sustained by any person or persons, or damage to property, including loss or use thereof, arising out of or in consequence of the performance of the work, whether such injuries to persons or damage to property is due or claimed to be done to the negligence of the contractor, his subcontractors, the purchaser, their agents or employees, except only such injury or damage as shall have been occasioned by the sole negligence of the purchaser.

Batton then hired A.O. Glenn to do the electrical work, which included the wiring of an overhead exhaust fan in the shelter.

Batton subsequently injured his hand while he was inspecting the exhaust fan and sued Glenn and his insurer. A jury found Glenn negligent and assessed damages. Glenn and Florida Farm Bureau then filed a third-party action for contribution against the state as a joint tort-feasor for negligent failure to provide a warning or to require a screen guard on the exhaust fan. Thereafter, the state sought and received a summary judgment on the contribution claim on the grounds that the state, by reason of the indemnification agreement with Batton, had no common liability for Batton's injury.

The common law doctrine precluding contribution among joint tort-feasors was abrogated by the legislature's enactment of section 768.31, Florida Statutes (1975), the Uniform Contribution Among Tortfeasors Act. See Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). So long as the parties have a common liability to the injured person it is no bar to contribution that liability of the parties rests on different grounds. Farmers Insurance Exchange v. Village of Hewitt, 274 Minn. 246, 143 N.W.2d 230 (1966); Armor Elevator Co. v. Elevator Sales & Service, Inc., 360 So.2d 1129 (Fla. 3d DCA 1978). But where one tort-feasor is immune from suit by the victim, the others cannot compel contribution because the alleged tort-feasors are not then jointly and severally liable. Armor Elevator Co., 360 So.2d at 1129.

In Seaboard Coast Line Railroad v. Smith, 359 So.2d 427 (Fla.1978), the dismissal of Seaboard's claim for contribution from the West Robinson Fruit Company was affirmed. Employees of the fruit company were injured when the company bus collided with a Seacoast train. The employees' injuries were paid for by the employer under the provisions of the Workmen's Compensation Act without regard to fault. See § 440.11, Fla.Stat. (1975). The railroad could not compel contribution by the employer who, because of the special nature of workmen's compensation, was immune from suit by his employees and, therefore, not judged to be a tort-feasor. See also Armor Elevator Co., 360 So.2d at 1129. The state compares its situation to that of the railroad in the Seaboard case. Specifically, the state asserts that since the indemnity agreement with Batton would prevent Batton from recovering against the state directly, the agreement should also bar a contribution recovery.

Florida Farm Bureau contends that this case is closer to that of Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA...