Florida Gas Co. v. Spaulding

• Decision Date: 16 December 1970
• Docket Number: No. 39009,39009
• Parties: FLORIDA GAS COMPANY, Petitioner, v. Charlotte A. SPAULDING et al., Respondents.
• Court: Florida Supreme Court

Page 129

243 So.2d 129

FLORIDA GAS COMPANY, Petitioner, v. Charlotte A. SPAULDING et al., Respondents.

No. 39009.

Supreme Court of Florida.

Dec. 16, 1970.

Rehearing Denied Feb. 2, 1971.

Lloyd C. Leemis, of Boyd, Jenerette, Leemis & Staas, Jacksonville, for petitioner.

Albert M. Crabtree, Jr., Jacksonville, for Charlotte A. Spaulding.

George Stelljes, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for Dickerson, Inc., respondent.

ROBERTS, Justice.

Petitioner, Florida Gas Company, seeks review of a decision of the District Court of Appeal, First District, 226 So.2d 115, which affirmed an adverse final summary judgment in a third party action brought by petitioner against respondent, Dickerson, Inc.

The widow of Harry A. Spaulding brought an action for alleged negligence of the Florida Gas Company which resulted in the death of her husband at a time when he was an employee of Dickerson, Inc. The complaint alleged that prior to November 3, 1967, the date of the accident, the gas company had installed and maintained a gas pipeline beneath the surface of the ground within the right of way of U.S. Highway #1 in Jacksonville, Florida. The company had been notified that there would be an expansion and improvement of certain portions of the road and that the pipeline of the gas company would have to be reinstalled so that it would be deep enough not to cause a hazard to people operating highway construction equipment. The complaint further alleged that the machine operated by the decedent struck and ruptured the covered pipeline, natural gas escaped and an explosion occurred which fatally injured respondent Spaulding's husband.

Petitioner gas company filed a third party complaint for indemnity against respondent-employer Dickerson, Inc. alleging that there was an agreement among the State Road Department, the employer Dickerson and the petitioner gas company that the pipeline would not be lowered but left where it was and would be exposed and then covered with limerock in order to dispense with the necessity of mixing the soil and stabilizing the roadbed base over the pipeline during the improvement to the road. Petitioner contends in the court below that the employer Dickerson, Inc. participated in carrying out the agreement. The petitioner further alleged active negligence on the part of the employer Dickerson, Inc. in failing to warn and protect the employee Spaulding against the danger of digging with the machine in the pipeline area.

Respondent Dickerson, Inc. answered the third party complaint and filed a motion for summary judgment raising the argument that the exclusive remedy provision of F.S. § 440.11 ¹ F.S.A. barred the third party action against it as the employer paying respondent Spaulding's widow benefits under the act.

The trial court found that, 'Upon the motion for summary judgment, there is no genuine material issue of fact.', and 'The view followed by the great majority of the cases is that a third person tort-feasor, who is liable for injuries to, or for the death of, a workman, is not entitled to recover contribution from the workman's employer, notwithstanding the latter's negligence concurred in causing the injury or death, where the employer, the employee, and the particular injury or death are covered by the provisions of a workmen's compensation act.', and 'The workmen's compensation act his eliminated fault as a basis for the employer's liability, and has made the employer...