K-Mart Corp. v. Chairs, Inc., K-MART

CourtCourt of Appeal of Florida (US)
Writing for the CourtSHARP; UPCHURCH, C.J., and DAUKSCH
Citation506 So.2d 7,12 Fla. L. Weekly 697
Parties12 Fla. L. Weekly 697 CORPORATION, etc., Appellant, v. CHAIRS, INC.; C & S Chairs, Inc. and Bituminous Casualty Corporation, Appellees.
Decision Date05 March 1987
Docket NumberNo. 85-1578,K-MART

Page 7

506 So.2d 7
12 Fla. L. Weekly 697
K-MART CORPORATION, etc., Appellant,
v.
CHAIRS, INC.; C & S Chairs, Inc. and Bituminous Casualty Corporation, Appellees.
No. 85-1578.
District Court of Appeal of Florida,
Fifth District.
March 5, 1987.
Rehearings Denied April 30, 1987.

Page 8

Francis J. Carroll, Jr., of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellant.

David D. Chafin, of Whittaker, Stump and Webster, P.A., Orlando, for appellees C & S Chairs, Inc. and Bituminous Cas. Corp.

Frederick J. Daniels, of Langston and Hess, P.A. Orlando, for appellees, Chairs, Inc. and Aetna Ins. Companies.

SHARP, Judge.

K-Mart Corporation appeals from a summary judgment denying it any recovery under its third party complaint. In a suit by a customer injured by a swing set purchased from a K-Mart store, K-Mart filed a third party complaint against C & S Chairs, Inc. ("C & S"), manufacturer of the swing, and Chairs, Inc. ("Chairs"), the distributor. We reverse in part and affirm in part.

K-Mart sold a porch swing set to Willis Stuhr in 1979. Stuhr assembled the swing set and was subsequently injured while swinging in it when it tipped over backwards. In 1980, Stuhr and his wife sued K-Mart, C & S and Chairs.

On the eve of trial, an expert witness scheduled to appear for C & S and Chairs, became ill. Stuhr agreed to dismiss claims against C & S and Chairs, without prejudice. The trial continued against K-Mart, and while the jury was deliberating C & S and Chairs settled with Stuhr for $20,000.00.

The jury returned a verdict against K-Mart for $115,000.00 for Stuhr and $6,000.00 for his wife, for loss of services. Its verdict form contained the following specific finding: that K-Mart sold a "swing with a defect which was a legal cause of damage to plaintiff, Willis Stuhr." 1 However, the jury found Stuhr was thirty percent negligent.

After reducing the $115,000.00 award by the $20,000.00 settlement, and by the thirty percent attributable to Stuhr's negligence, K-Mart paid the Stuhrs $64,700.00 plus costs. Thereafter K-Mart filed its complaint seeking indemnity, contribution, and

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damages for breach of contract from C & S and Chairs. Upon motion by the third party defendants, the trial court granted summary judgment denying K-Mart any relief. K-Mart argues it is entitled to indemnification based on either a theory of common law indemnity or contractual indemnity, and to contribution pursuant to section 768.31, Florida Statutes (1981).

Indemnity

Appellant sought common-law indemnity against both C & S and Chairs. The right to indemnity may arise out of a contract or it may be based on liability imposed by law. Mims Crane Service, Inc. v. Insley Manufacturing Corporation, 226 So.2d 836 (Fla. 2d DCA), cert. denied, 234 So.2d 122 (Fla.1969). While the parties to this appeal agree the right to common-law indemnity exists in Florida, they differ in their application of the controlling case law to this case. We think the trial court correctly decided that this case is governed by Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), but erred in its application to the facts presented here.

Houdaille involved an indemnification claim between a manufacturer and the employer of an injured employee. The suit alleged that the employer was actively negligent in using improper and dangerous procedures with the manufacturer's product. The supreme court held there was no right to indemnification on the part of the manufacturer as against the employer absent a special relationship between the manufacturer and the employer...

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22 practice notes
  • Promaulayko v. Johns Manville Sales Corp.
    • United States
    • United States State Supreme Court (New Jersey)
    • 8 Agosto 1989
    ...indemnity against one higher in the chain, such as the manufacturer." Id. at 242, 734 S.W.2d 233; see K-Mart Corp. v. Chairs, Inc., 506 So.2d 7 (Fla.Dist.Ct.App.), rev. denied, 513 So.2d 1060 (1987) (allowing common-law indemnification against distributor and manufacturer of a defectiv......
  • Masonite Corp. Hardboard Siding Prods. Litigation, Civil Action MDL No. 1098.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 16 Septiembre 1998
    ...with the supplier of the component part is concerned...." Houdaille, 374 So.2d at 493 n. 3; see also K-Mart Corp. v. Chairs, Inc., 506 So.2d 7 (Fla.Dist. Ct.App.1987) (holding that retailer's strict liability for sale of defective product or breach of implied warranty is not "wron......
  • Dade Cty. Sch. Bd. v. Radio Station WQBA, No. 91,767.
    • United States
    • United States State Supreme Court of Florida
    • 4 Febrero 1999
    ...must be without fault, and its liability must be vicarious and solely for the wrong of another. See K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. Western Waterproofing Co., 50......
  • Traditions Senior Mgmt., Inc. v. United Health Adm'rs, Inc., Case No: 8:12-cv-2321-T-30MAP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 27 Junio 2013
    ...Co. v. Naquin, 414 F.2d 913; Dade county School Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999); K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). To succeed on a common law indemnity claim, "the party seeking indemnification must be without fault, and its ......
  • Request a trial to view additional results
22 cases
  • Promaulayko v. Johns Manville Sales Corp.
    • United States
    • United States State Supreme Court (New Jersey)
    • 8 Agosto 1989
    ...indemnity against one higher in the chain, such as the manufacturer." Id. at 242, 734 S.W.2d 233; see K-Mart Corp. v. Chairs, Inc., 506 So.2d 7 (Fla.Dist.Ct.App.), rev. denied, 513 So.2d 1060 (1987) (allowing common-law indemnification against distributor and manufacturer of a defectiv......
  • Masonite Corp. Hardboard Siding Prods. Litigation, Civil Action MDL No. 1098.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 16 Septiembre 1998
    ...with the supplier of the component part is concerned...." Houdaille, 374 So.2d at 493 n. 3; see also K-Mart Corp. v. Chairs, Inc., 506 So.2d 7 (Fla.Dist. Ct.App.1987) (holding that retailer's strict liability for sale of defective product or breach of implied warranty is not "wron......
  • Dade Cty. Sch. Bd. v. Radio Station WQBA, No. 91,767.
    • United States
    • United States State Supreme Court of Florida
    • 4 Febrero 1999
    ...must be without fault, and its liability must be vicarious and solely for the wrong of another. See K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. Western Waterproofing Co., 50......
  • Traditions Senior Mgmt., Inc. v. United Health Adm'rs, Inc., Case No: 8:12-cv-2321-T-30MAP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 27 Junio 2013
    ...Co. v. Naquin, 414 F.2d 913; Dade county School Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999); K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). To succeed on a common law indemnity claim, "the party seeking indemnification must be without fault, and its ......
  • Request a trial to view additional results

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