Huet v. Mike Shad Ford, Inc., 5D05-680.

• Decision Date: 02 December 2005
• Docket Number: No. 5D05-680.,5D05-680.
• Citation: 915 So.2d 723
• Parties: Ward L. HUET and Joan Huet, Appellants, v. MIKE SHAD FORD, INC., etc., et al., Appellees.
• Court: Florida Supreme Court

915 So.2d 723

Ward L. HUET and Joan Huet, Appellants, v. MIKE SHAD FORD, INC., etc., et al., Appellees.

No. 5D05-680.

District Court of Appeal of Florida, Fifth District.

December 2, 2005.

Christopher L. Casey and H. Keith Thomerson, of Hinshaw & Culbertson, Jacksonville, for Appellant.

George K. Brew, of Brew & Harper, PL, Jacksonville, for Appellee Mike Shad Ford.

SHARP, W., J.

The Huets appeal from the trial court's order which dismissed their third party complaint against Mike Shad Ford, Inc., with prejudice. The Huets, the defendants in this automobile negligence action, filed the third party complaint for indemnity, contribution and equitable subrogation on the theory that Mike Shad Ford may be liable for some of the plaintiffs' damages. We agree the third party complaint was properly dismissed and accordingly affirm. However, we write to point out that this dismissal does not preclude the Huets from filing a later separate and independent equitable subrogation action against Mike Shad Ford, should the circumstances then be appropriate.

In the main complaint in this case, the plaintiffs Hillary and Andre Tromp alleged that on January 27, 2003, Hillary Tromp was driving her van in St. Augustine when she was involved in a collision with a vehicle, which was owned by Joan Huet and negligently driven by Ward Huet. The complaint sought damages for bodily injury, property loss for the Tromps' vehicle, and loss of consortium.

The Huets filed an answer denying the relevant allegations of the complaint and asserted numerous affirmative defenses. The Huets also filed a third party complaint against Mike Shad Ford. The Huets alleged the Tromps had filed suit against them seeking to recover for, among other things, damage to the Tromps' vehicle and for the loss of use of that vehicle. The Huets further alleged Mike Shad Ford repaired the vehicle after the accident but failed to do so in a proper and timely manner,¹ and by such actions had caused damage to the vehicle for which the Tromps were seeking to hold the Huets liable.

In count one, the Huets claimed they were entitled to common law indemnity from Mike Shad Ford. The Huets alleged they were without negligence regarding the improper repair of the vehicle and so any damages complained of by the Tromps were solely caused by the negligence of Mike Shad Ford.

In count two, the Huets sought contribution from Mike Shad Ford. The Huets alleged that if they are deemed liable to the Tromps for any damages arising from the damage to or loss of use of the vehicle, they are entitled to recover from Mike Shad Ford the amount of damages that are adjudged to be due in excess of the Huets' pro rata share of liability, pursuant to section 768.31, Florida Statutes.²

In count three, the Huets sought recovery from Mike Shad Ford based on equitable subrogation. The Huets claimed that to the extent they are held liable for damages caused by Mike Shad Ford's negligence, the payment of such amount is properly the obligation of Mike Shad Ford.

Mike Shad Ford moved to dismiss the third party complaint on the basis that it failed to allege sufficient ultimate facts necessary to state a cause of action for indemnity, contribution and/or equitable subrogation. At the hearing on this motion, the Huets' counsel acknowledged they filed the third party complaint simply to preserve their right to recover any amounts that may be awarded to the Tromps arising from improper repairs. A few days after the trial court dismissed the third party complaint, the Huets admitted to liability for causing the accident but did not admit to damages.

The purpose of a motion to dismiss is to request the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal. The trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations. It is not for the court to speculate whether the allegations are true or whether the pleader has the ability to prove them. The question for the trial court to decide is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested. Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175 (Fla. 5th DCA 2001).

When reviewing an order determining the sufficiency of a complaint, we must apply the same principles as the trial court. Fox. Because the determination whether a complaint sufficiently states a cause of action resolves an issue of law, an order granting a motion to dismiss is reviewable on appeal by the de novo standard of review. Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204 (Fla. 5th DCA 2003); Fox.

We conclude the trial court properly dismissed the third party complaint because the Huets, as the alleged initial tortfeasors, cannot escape liability for the repairs or loss of use of the Tromps' vehicle in this lawsuit. Based on the allegations in the third party complaint, the Huets are being sued as the initial tortfeasors in causing the accident and Mike Shad Ford is a subsequent tortfeasor. In Florida, generally the initial tortfeasor is held liable for the negligent acts of subsequent tortfeasors. Insurance Co. of North America v. Sullivan, 475 So.2d 287 (Fla. 5th DCA 1985).

The Florida Supreme Court has held that the initial tortfeasor may not file a third-party complaint for indemnity or contribution for the alleged aggravation of the plaintiff's injuries caused by the malpractice of a physician who treated the plaintiff. Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). As the court explained:

In Hertz, this Court held that third-party indemnity actions against subsequent tortfeasors are inappropriate. That decision was premised on the traditional doctrine that an initial tortfeasor may not benefit from his own wrong by bringing a third-party claim against a doctor whose alleged malpractice aggravated the victim's injuries. Our concern was that such third-party claims would hamper the litigation process for the aggrieved victim by attaching "a complex malpractice (case) in order to proceed with a simple personal injury suit."... Allowing such expansion would foreclose the victim's ability...