Jowanowitch v. Florida Power and Light Co.
| Decision Date | 02 April 1980 |
| Docket Number | No. 78-398,78-398 |
| Citation | 381 So.2d 750 |
| Parties | Anna C. JOWANOWITCH, a minor, by and through her mother, next friend and natural guardian, Rogeria Jowanowitch, and Rogeria Jowanowitch, Individually, Appellants, v. FLORIDA POWER AND LIGHT COMPANY, a Florida Corporation, King Halikman and American Liberty Insurance Company, Appellees. /NT4-79. |
| Court | Florida District Court of Appeals |
Larry Klein, West Palm Beach, Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach and Lovering, Pound & Lober, P. A., Rockledge, for appellants.
Palmer W. Collins, Melbourne, and William T. McCluan of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for Florida Power and Light Co.
Jon Johnson of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for Halikman and American Liberty Ins. Co.
The plaintiffs in a negligence action stemming from a boating accident appeal a final summary judgment entered in favor of the defendant, Florida Power and Light Company (FP&L). The summary judgment was based on two releases executed by Rogeria Jowanowitch, mother of the minor plaintiff. FP&L cross-appeals an order compelling it to produce its files pertaining to boating accidents involving contact with its power lines in two counties.
In a third-party action, FP&L sued King Halikman, the operator of the boat, and his insurer, American Liberty Insurance Company, for indemnification, contending that Halikman's active negligence was the sole proximate cause of the plaintiffs' injuries and that FP&L was, at most, passively negligent. FP&L cross-appeals the entry of final summary judgment in favor of the third-party defendants.
Rogeria Jowanowitch and her minor daughter, Anna, were passengers aboard a sailboat operated by King Halikman, the third-party defendant. The mast of the sailboat collided with overhead power lines owned and operated by FP&L, resulting in injuries to Mrs. Jowanowitch and her daughter. In settling any claims she may have had against Halikman and his insurer, Mrs. Jowanowitch executed two releases. One of the releases (release No. 1) related solely to Mrs. Jowanowitch's personal claims and was executed by her in her individual capacity. That release discharged Halikman, his wife, and his insurer, and further released "all other persons, firms, corporations, associations, or partnerships . . . ." The second release (release No. 2) was entitled "Parents-Guardian Release and Indemnity Agreement" and related to Mrs. Jowanowitch's claims as parent and guardian of the minor, as well as to the minor's own claims. That document released only the Halikmans and their insurer. There is conspicuously absent from release No. 2 any general language releasing others not specifically named.
Suit was then instituted by Mrs. Jowanowitch against FP&L to recover her own damages, and as guardian and next friend, those of her daughter. On motion by FP&L, final summary judgment was entered in its favor on the basis of the two releases. Plaintiffs argue that because FP&L was not named in either release, the entry of final summary judgment in its favor was error. We agree and reverse the summary judgment.
As noted previously, in release No. 1, Mrs. Jowanowitch released inter alia, "all other persons, firms, corporations, associations or partnerships . . . ." In Hurt v. Leatherby Ins. Co., 354 So.2d 918 (Fla. 4th DCA 1978), the Court held that such all inclusive language discharges all joint tort-feasors. See also, Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3rd DCA 1976) and Hester v. Gatlin, 332 So.2d 660 (Fla. 2nd DCA 1976). The decision in Hurt was certified to the Florida Supreme Court which reversed, holding that whether a general printed release is effective to discharge other than specifically named tortfeasors is a question of fact. Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla.1980). In so holding, the Court stated: "(T)he manifestation of intent must be more explicit than...
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