General Portland Land Development Co. v. Stevens, 79-1727

• Decision Date: 15 April 1981
• Docket Number: No. 79-1727,79-1727
• Parties: GENERAL PORTLAND LAND DEVELOPMENT COMPANY and Greater Florida Investment, a joint venture d/b/a Old Port Cove, Appellants, v. Marvin Lee STEVENS, Mary Catherine Stevens and Hembree Masonry, Inc., a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1296

395 So.2d 1296

GENERAL PORTLAND LAND DEVELOPMENT COMPANY and Greater Florida Investment, a joint venture d/b/a Old Port Cove, Appellants, v. Marvin Lee STEVENS, Mary Catherine Stevens and Hembree Masonry, Inc., a Florida Corporation, Appellees.

No. 79-1727.

District Court of Appeal of Florida, Fourth District.

April 15, 1981.

Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellants.

Thomas D. Lardin of Weaver & Weaver, P. A., Fort Lauderdale, for appellee-Hembree Masonry, Inc.

ON REHEARING

GLICKSTEIN, Judge.

This is the third occasion for this court to consider this case. ¹ The present appeal is from a final summary judgment in favor of Hembree Masonry, Inc. (hereinafter Hembree), and against General Portland Land Development Company and Greater Florida Investment Company, a joint venture d/b/a Old Port Cove (hereinafter Old Port Cove), on the latter's claim for indemnity. Both parties argued in their briefs that the facts are not in dispute. However, during argument counsel for Old Port Cove conceded the existence of unresolved questions of fact and urged this court to remand for another trial. We agree with appellants' concession and affirm the denial of Old Port Cove's motion for summary judgment, reverse the granting of summary judgment in favor of Hembree, and remand.

The facts and history of the case reveal that Marvin Lee Stevens, a plumber employed by an independent contractor, brought an action against Old Port Cove and Hembree for personal injuries allegedly caused by the negligent operation of a buck hoist, a machine used to transport construction materials up and down the side of a building. Old Port Cove, the owner/builder of a multistory condominium project, leased the buck hoist from Hembree. Under the terms of the written lease Hembree agreed to furnish an operator, whose wages were paid by Hembree. Ronald Weber was selected as the operator.

Old Port Cove filed a crossclaim against Hembree for contractual and common law indemnity. The case was tried and by virtue of the court's charge, the jury was asked to determine if the hoist operator was the employee of Old Port Cove or the employee of Hembree. The jury was also asked to determine whether the buck hoist operator was a joint employee of both Old Port Cove and Hembree. They returned a verdict for Stevens for $234,000.00 against Old Port Cove, and against Stevens on his claim against Hembree, but rendered no verdict on the crossclaim for indemnity. Final judgment for plaintiff and against Old Port Cove was entered on February 28, 1973, and was appealed by Old Port Cove to this court. Rather than supersede the final judgment, Old Port Cove agreed to a settlement with Stevens in the amount of the judgment and obtained a release. This court subsequently reversed and remanded for new trial. General Portland Land Development Co. v. Stevens, 291 So.2d 250 (Fla. 4th DCA 1974). Since Old Port Cove had already settled with Stevens, on remand the only issue to be resolved was its crossclaim against Hembree.

On March 28, 1973, Old Port Cove also instituted a separate lawsuit for indemnity against Ronald Weber for his negligent operation of the buck hoist. That case was tried nonjury and final judgment was entered against Weber.

After remand of the first appeal Old Port Cove filed an amended crossclaim against Hembree, alleging that Hembree employed Ronald Weber to operate one of the buck hoists and that Weber negligently lowered the buck hoist, injuring the plaintiff. Both parties moved for summary judgment. By order of May 17, 1976, the trial court denied Old Port Cove's motion for summary judgment and granted Hembree's motion for summary judgment. On appeal this court again reversed and held that this court's prior reversal of the judgment entered in accordance with the jury verdict voided that judgment and negated the possibility of res judicata based on said overturned judgment. General Portland Development Co. v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978).

On remand following the second appeal Old Port Cove filed a second amended crossclaim against Hembree. Both parties renewed their motions for summary judgment. The trial court denied Old Port Cove's motion and granted Hembree's motion. This timely appeal followed.

As a preliminary matter we note that we need only consider the appropriateness of summary judgment in favor of Hembree. Since Old Port Cove conceded at oral argument that material facts remain at issue, their motion for summary judgment was properly denied.

The supreme court has recently reviewed several cases involving indemnity culminating with Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). That case arose following the death of one of Houdaille's employees allegedly caused by a defective cable manufactured by Florida Wire and Cable Co. The employee's personal representative sued Florida Wire for wrongful death and alleged breach of implied warranty of fitness. Florida Wire filed a third-party complaint against Houdaille and alleged that Houdaille was actively negligent and that if Florida Wire was negligent, its negligence was merely passive. The trial court granted summary judgment for Houdaille on its third party complaint. The First District reversed on the basis of unresolved material issues of fact. The supreme court noted that the district court focused on the wrongdoing of Houdaille, the potential indemnitor, rather than on the fault of Florida Wire, the party seeking indemnity. Implicitly finding that approach improper the supreme court, in quashing the district court's holding, cited its prior decisions in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977), and Seaboard Coast Line Railroad Co. v. Smith, 359 So.2d 427 (Fla.1978), and held ... when determining whether a party is entitled to indemnity, we will not weigh the relative fault of the parties, but rather we will look to the party seeking indemnity to determine whether he is without fault. In making this particular determination, it is immaterial whether the one against whom indemnification is sought is also with fault. (Emphasis added).

374 So.2d at 493.

Since there was no basis to impute any negligence on the part of Houdaille to Florida Wire, the latter's sole source of potential liability to the plaintiff was for its own active breach of warranty. Consequently, in order to hold Florida Wire liable at all it necessarily would have been at fault, thereby precluding it from shifting its liability regardless of its degree of fault. "(A) weighing of the relative fault of tortfeasors has no place in the concept of indemnity for the one seeking indemnity must be without fault." Id., at 493.

We believe that Houdaille, supra, in essence, establishes a two-prong test that the party seeking indemnity must satisfy. The first prong, the only one considered by Houdaille, requires the indemnitee to be faultless, its liability solely vicarious for the wrongdoing of another. ²

The second prong focuses on the fault of the indemnitor. In order for the faultless party to shift its liability to another, the latter must be at fault. Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980). In the case of an employer, it is responsible for the wrongdoing...