Home Indem. Co. v. Edwards, EE-55

• Decision Date: 10 July 1978
• Docket Number: No. EE-55,EE-55
• Parties: HOME INDEMNITY COMPANY et al., Appellants, v. Eddie EDWARDS, Sr., etc., Appellees.
• Court: Florida District Court of Appeals

Page 1112

360 So.2d 1112

HOME INDEMNITY COMPANY et al., Appellants, v. Eddie EDWARDS, Sr., etc., Appellees.

No. EE-55.

District Court of Appeal of Florida,First District.

July 10, 1978.

Rehearing Denied Aug. 9, 1978.

S. William Fuller, Jr., of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.

Robert C. Kent, James T. Terrell, John C. Taylor, Jr., Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.

BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Duval County, granting final summary judgment in favor of third party defendant, Houdaille Industries, Inc., as to Count I and II, ¹ and dismissing Count III for failure to state a cause of action.

The two questions presented are: First, whether a manufacturer of a product who is sued for breach of warranty by one injured by the product may bring a third party suit for indemnity against the employer of the injured party. Second, whether the third party complaint and the evidence before the court in this case are sufficient to withstand the employer's motions for dismissal and summary judgment.

The first question has been answered in the affirmative by the Supreme Court in Sunspan Engineering and Construction Company v. Spring-Lock Scaffolding Company, 310 So.2d 4 (Fla.1975); Trail Builders Supply Company v. Reagan, 235 So.2d 482 (Fla.1970) and Florida Gas Company v. Spaulding, 243 So.2d 129 (Fla.1970). The recent decision of the Supreme Court in Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427, Cases # 51,649 & # 51,650, Opinion filed March 30, 1978, restates the distinctions between contribution and indemnity and, as to the latter, holds that an active tortfeasor whose operation of a train caused the accident has no right to indemnification against an employer for damages paid to an injured employee even though the negligence of the employer was willful or wanton.

In this case, the employer argues that a manufacturer is, by definition, guilty of active negligence, a contention which would preclude actions for indemnity by any manufacturer. We find that contention untenable since the Sunspan Engineering and Trail Builders cases, supra, both involve manufacturers and in both the third party complaints for indemnity against employers were allowed. In Sunspan Engineering, the employee was injured on the job when a platform board fell from a scaffolding tower which was manufactured by the third party plaintiff, Spring-Lock Scaffolding Company. The employees sued the manufacturer and the manufacturer filed a third party complaint against the employer. The Supreme Court, expressly limiting its consideration to the negligence count of the complaint, stated that the cause of action existed against the third party defendant. In the Trail Builders Supply Company case, the employee was injured when he was drawn into a truss roll press being operated without an appropriate safety device. He instituted suit against the manufacturer alleging negligence in the construction of the machine. The manufacturer's third party complaint against the employer for indemnity alleged that the employer had ignored safety regulations by making certain safety devices ineffective and had thus caused the employee's injury. The Supreme Court ruled that the allegedly negligent manufacturer could sue the employer for indemnity, stating that "justice, fair play and what's right" demand that an actively negligent employer be called on to indemnify a passive third party tortfeasor. (235 So.2d at 485)

This brings us to the second of the two questions presented here, which is the sufficiency of the complaint, and the evidence of record before the court, to withstand the employer's motions for dismissal and summary judgment. In the instant case, the evidence before the court on motion for summary judgment establishes that the employer, Houdaille, manufactures reinforced concrete beams using steel wire cable manufactured by the third party plaintiff, Florida Wire and Cable Company. During the manufacture of the beams by the employer, the steel cable is stretched through a large mold into which concrete is poured. The cables are placed under tension using hydraulic jacks and mechanical devices known as "strand chucks", metal barrels which enclose "keepers" with metal teeth that bite into and hold the wire cable during the tensioning process. The plaintiff/employee was killed while attempting to free a strand chuck that had been used to hold tension on the cable. There was evidence that additional tension, more than that specified for the strand in question, was applied in order to free the chuck, and either the jack or the strand snapped forward, striking the employee and causing fatal injuries. Material questions of fact exist as to the cause of the accident.

The complaint in the main action alleges breach of implied warranty in the manufacture of the wire cable which snapped. Breach of warranty is a species of liability which may, or may not, involve actual fault or active negligence on the part of the manufacturer. 28 Florida Jurisprudence, Sales § 157 and cases cited therein.

The third party complaint, Count I, alleges that the employer was actively negligent and specifically, inter alia, that the employer in its conduct of the detensioning process which caused the wire to break, improperly inserted the strand chuck in the jack and improperly installed the jack to the strand, resulting in misalignment of the jack. Evidence before the court on motion for summary judgment was that stress was applied which exceeded the warranty limits of the cable in question. The amendment to the third party complaint,...