Insurance Company of North America v. Quality Commercial Group, Inc.

• Decision Date: 14 February 1997
• Docket Number: No. 95-83,95-83
• Citation: 687 So.2d 960
• Parties: 22 Fla. L. Weekly D427 INSURANCE COMPANY OF NORTH AMERICA, etc., Appellant, v. QUALITY COMMERCIAL GROUP, INC., Appellee.
• Court: Florida District Court of Appeals

Page 960

687 So.2d 960

22 Fla. L. Weekly D427

INSURANCE COMPANY OF NORTH AMERICA, etc., Appellant, v. QUALITY COMMERCIAL GROUP, INC., Appellee.

No. 95-83.

District Court of Appeal of Florida,

Fifth District.

Feb. 14, 1997.

Jon D. Derrevere of Derrevere & Associates, West Palm Beach, for Appellant.

Steven C. Davis of Papy & Weissenborn, P.A., Tampa, for Appellee.

PER CURIAM.

This is an appeal from a summary final judgment.

For purposes of Quality's summary judgment motion, the following facts were undisputed. Quality was the general contractor responsible for constructing an access ramp between the parking lot area and the northern entrance into Spring Hill Bowling Alley in Hernando County. As completed by Quality in about January 1989, the ramp had a raw, untreated concrete surface "which was swept/brushed to a rough texture prior to hardening." Sometime between January 1989 and January 1991, Spring Hill Lanes, Inc. hired a second, related contractor to add a tiled surface to the ramp. On January 28, 1991, Alice Grassini was injured when she slipped and fell on the access ramp. In May 1992, INA, as Spring Hill Lanes, Inc.'s liability insurer, paid Mrs. Grassini $81,036 to settle her claim for damages against Spring Hill Lanes, Inc.

In February 1994, almost two years after settling Mrs. Grassini's claim, INA filed a subrogation lawsuit against Quality, seeking to recover the $81,036 which INA paid to Mrs. Grassini on behalf of Spring Hill Lanes, Inc. In its second amended complaint, INA contended that Quality was liable for Mrs. Grassini's damages in that Quality negligently constructed the access ramp by failing to include a non-skid surface on the floor of the ramp and handrails on both sides of the ramp (Count I); that, in constructing the access ramp, Quality failed to comply with applicable building codes (Count II); that Quality breached its implied warranty to construct the access ramp in a workmanlike manner (Count III); and that Quality failed to construct the access ramp in accordance with the agreement between Quality and Spring Hill Lanes, Inc. (Count IV).

In moving for summary judgment, Quality contended that INA's action was barred by the one-year statute of limitations contained in section 768.31, Florida Statutes (1991), because INA's action was one for contribution rather than subrogation. The trial court agreed and entered an order granting Quality's motion for summary judgment. The trial court later entered a final judgment in favor of Quality and INA timely appealed.

As pertinent, section 768.31 bars a tortfeasor's action for contribution unless the tortfeasor brings the action within one year after the tortfeasor pays the claimant for the claimant's injury. See § 768.31(4)(d) 1, Fla Stat. (1991). In this case, INA concedes that any action for contribution based on its payments to Mrs. Grassini would be barred by the one-year statute of limitations contained in section 768.31. INA contends, however, that its action against Quality is not time-barred because the action is one for equitable subrogation, not contribution. This argument is correct.

In order to state a cause of action for contribution, INA was required to plead or allege "common liability" on the part of both Quality and INA's insured, Spring Hill Lanes, Inc. Department of Transp. v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101 (Fla. 1st DCA), rev. den., 645 So.2d 456 (Fla.1994). A party seeking contribution "must plead and prove, among other necessary allegations, [its] own negligence and the negligence of the other tortfeasor." West Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 206 (Fla. 5th DCA 1986), rev. den., 504 So.2d 769 (Fla.1987). Here, INA did not state a cause of action for contribution because it failed to allege common liability for Mrs. Grassini's injury. Instead, INA's second amended complaint alleged that Quality was liable for all of Mrs. Grassini's damages because of Quality's negligent construction of the access ramp. Based on this allegation, INA's second amended complaint stated a cause of action for equitable subrogation rather than one for contribution. McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla. 1st DCA), rev. den., 544 So.2d 200 (Fla.1989). See also Hornstein v. Guarantee Ins. Co., 471 So.2d 108 (Fla. 3d DCA 1985) (holding that, under theory of equitable subrogation, liability insurer of attorney who failed to discover tax liens on property was entitled to indemnification against seller for damages arising out of seller's breach of warranty deed which insurer paid to buyer).

The remedy of contribution must fail when "the party against whom contribution is sought is found one hundred percent liable for tortious injuries." McKenzie Tank Lines, Inc., 538 So.2d at 484. In...