Hertz Corp. v. Pugh, EE-273
| Decision Date | 08 February 1978 |
| Docket Number | No. EE-273,EE-273 |
| Parties | The HERTZ CORPORATION and Royal Indemnity Company, Appellants, v. Willie R. PUGH, Appellee. |
| Court | Florida District Court of Appeals |
Julian Bennett of Welch, Hilton, Bennett, Logue & Burke, Panama City, for appellants.
Richard Smoak of Isler, Higby, Brown, Smoak & Watson, Panama City, for appellee.
Appellants appeal a summary final judgment holding that a liability insurance contract naming both Hertz and Wilson & Toomer as insureds, procured by Hertz's lessee, Toomer, did not show an intention to indemnify or insure Hertz for injuries which occurred to Willie R. Pugh caused by the sole negligence of Hertz. We reverse.
On November 10, 1966, Hertz executed a truck lease service agreement with Toomer in which Hertz agreed to lease to Toomer a number of trucks. Hertz provided at its own expense all maintenance, repair and inspection of the vehicles. Toomer agreed, at its sole cost, to provide an automobile liability insurance policy naming Hertz and Toomer as insureds with respect to the ownership, maintenance and use of the vehicles which insurance was designed as primary insurance with bodily injury limits of $100,000 per person and $300,000 per accident. Following the agreement, Toomer acquired an automobile liability insurance policy from Continental Insurance Company complying with the terms of the lease. During the period of the policy, on March 28, 1968, Willie Ray Pugh, a ranch worker, was injured when a portion of a universal joint in a leased truck, received 10-22 days prior to the accident, flew out and struck Pugh's leg while he was disengaging a trailer.
Pugh sued Hertz, Toomer and General Motors Corporation on various theories of negligence and breach of warranty. Hertz filed a cross-claim against Continental seeking indemnity from it up to the maximum limit available should Pugh prevail against Hertz on his claim. Later the three defendants entered into a stipulation agreeing to pay Pugh the total sum of $50,000, each contributing $16,666.67, reserving for trial the ultimate responsibility between them for the payment of $50,000. All questions concerning coverage of the two insurance policies involving Hertz's insurer Royal and Toomer's insurer Continental were reserved for determination following trial of the above issues. The jury found General Motors and Toomer not guilty of negligence or breach of warranty but found Hertz solely responsible for the legal cause of injury to Pugh due to the negligent maintenance of the vehicle. Judgment was subsequently entered against Hertz in favor of Toomer and General Motors Corporation in the sum of $16,666.67 each, which was subsequently paid by Hertz. Hertz filed a motion for summary judgment against Continental on its cross-claim, and the trial judge denied the motion and dismissed the cross-claim.
In reaching its decision denying summary judgment, the court relied upon University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). We do not feel that the Stewart case is dispositive of the issues before us. There University Plaza Shopping Center leased a building in its shopping center to a tenant who used the premises to operate a barber shop. During the lease period a gas line exploded underneath the shop causing fatal injuries to a barber. The barber's widow sued the landlord for wrongful death alleging that it had negligently installed or maintained a gas line under the shop. Later the landlord filed a third party complaint against the tenant and his insurer. The landlord based his action upon a lease agreement containing an indemnity provision in which the tenant agreed to indemnify the landlord against any claims for personal injury or loss of life on the premises. He also agreed to keep in full force during the term of the lease a comprehensive general liability insurance policy. The evidence showed that the gas line was under, but not part of, the leased premises. Moreover the tenant failed to procure liability insurance insuring the landlord, but instead obtained insurance only for himself.
The court, in reviewing contrasting opinions of Florida courts and the Fifth Circuit Court of Appeals interpreting Florida law, concluded that a contract...
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