Maybarduk v. Bustamante, No. 73--984

CourtCourt of Appeal of Florida (US)
Writing for the CourtMAGER; CROSS, J., and MOUNTS, MARVIN U., Jr.
Citation294 So.2d 374
Docket NumberNo. 73--984
Decision Date10 May 1974
PartiesAlexander P. MAYBARDUK and Employers Fire Insurance Company, Appellants, v. Alberto S. BUSTAMANTE et al., Appellees.

Page 374

294 So.2d 374
Alexander P. MAYBARDUK and Employers Fire Insurance Company, Appellants,
v.
Alberto S. BUSTAMANTE et al., Appellees.
No. 73--984.
District Court of Appeal of Florida, Fourth District.
May 10, 1974.

Bruce S. Bullock of Bullock & Alexander, P.A., Jacksonville, for appellants.

Edna L. Caruso for Howell Kirby Montgomery D'Aiuto Dean & Hallowes, West Palm Beach, for appellees Bustamante, Mercy Hospital and Ins. Co. of North America.

Russell Troutman of Troutman & Parrish, P.A., Winter Park, for appelle-Ricks.

MAGER, Judge.

This is an appeal by Alexander P. Maybarduk from an order dismissing his cross claim for indemnity.

Initially, a complaint was filed by Margie L. Ricks and Charles E. Ricks, plaintiffs

Page 375

below, against Maybarduk (and his insurer), Alberto S. Bustamante and Mercy Hospital, Inc. (and its insurer), defendants below, seeking damages for injuries resulting from a hemostat having been negligently left in the abdomen of Margie Ricks. The complaint alleged, inter alia, that Margie Ricks had employed Maybarduk to perform surgery upon her and that Maybarduk 'was a general surgeon in charge of the surgery with full authority over the conduct of the surgery at the time of the alleged negligence'. It was further alleged that at the time of the surgery Maybarduk was assisted by the defendant Bustamante; that Bustamante was an employee of the defendant Mercy Hospital; and that the Said defendants (Maybarduk and Bustamante) negligently left a hemostat in her abdomen.

In addition to compensatory damages, the plaintiff sought punitive damages against the defendant hospital alleging that she 'relied on Mercy Hospital, Inc. to furnish her and Dr. Alexander P. Maybarduk competent and qualified medical people necessary to treat her and to assist Dr. Alexander P. Maybarduk', and that defendant hosital knew or should have known that Bustamante was unlicensed and inexperienced in the particular duties performed for Maybarduk. 1

In addition to filing an answer Maybarduk filed an amended cross claim for indemnity against defendant Bustamante and his alleged employer--the defendant Mercy Hospital. The cross claim alleged, inter alia, that Maybarduk:

'. . . requested, on behalf of his patient the plaintiff, that defendant MERCY HOSPITAL INC. OF ORLANDO furnish him such qualified, skilled, and trained assistants, including an assistant physician, and such surgical equipment and facilities, as might be reasonably required in the performance of such surgery upon said plaintiff.'

Additionally, Maybarduk alleged that he relied upon the defendant hospital to furnish him facilities and assistance; that defendant Bustamante, who was paid by the defendant hospital, was assigned by the hospital to act as Maybarduk's assistant in the surgery performed upon Ricks. Maybarduk's cross claim further alleged that:

'. . . it was the duty of defendant BUSTAMANTE to observe all activities in the surgical field, to hold tissue and organs not involved in the surgery out of the operative field while the surgeon, defendant MAYBARDUK, concentrated upon the details of such surgery, and it was the custom of such surgical assistants, and the nondelegable duty of defendant BUSTAMANTE, to use surgical clamps in holding back tissues or in clamping bleeding vessels as observed by

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such assistant at surgery, and defendant MAYBARDUK relied upon defendant BUSTAMANTE to perform such duties in a careful and skillful manner.'

Maybarduk specifically alleged that the hemostat left in the abdomen of Ricks was 'not placed in the body of the plaintiff . . . by defendant . . . and was found on the side of her body attended by defendant Bustamante while acting as assistant at surgery under the employment and direction of defendant hospital . . .'. Maybarduk sought indemnification from the defendant hospital and Bustamante (and their insurer) for any sums which a jury may find he is obligated to pay as damages to plaintiffs contending that his negligence 'if any, was passive, and his liability vicarious'. Alternatively, Maybarduk contended he was entitled to be indemnified 'by reason of the negligence of defendants . . . while acting as his agents in the performance of the required surgery upon the plaintiff'. Defendants Bustamante and Mercy Hospital filed a motion to dismiss Maybarduk's cross claim on the ground that it failed to state a cause of action; said motion was granted by the trial court. In our opinion the trial court erred in dismissing Maybarduk's cross claim inasmuch as the cross claim stated a cause of action for indemnity against the third party defendants.

It is axiomatic that a defendant moving to dismiss a complaint is deemed to have admitted all facts pleaded in the complaint as well as all reasonable inferences arising from these facts. Bond v. Koscot Interplanetary, Inc., Fla.App.1971, 246 So.2d 631. The allegations contained in Maybarduk's cross claim (complaint) regarding the status, capacity, duties and responsibilities of (and by and between) Bustamante, the hospital and Maybarduk, which Maybarduk contended placed him in a position of being vicariously liable (for his negligence, if any,) must be assumed to be true for the purpose of determining the validity of defendants' motion to dismiss. On the basis of general principles of pleading and practice the cross claim stated a cause of action.

Whether Maybarduk can Prove his allegation is another proposition; but assuming he can, he would be entitled to the relief requested. In so...

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16 practice notes
  • Ford Motor Co. v. Hill, No. 58556
    • United States
    • United States State Supreme Court of Florida
    • July 23, 1981
    ...Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); and Maybarduk v. Bustamante, 294 So.2d 374 (Fla.4th DCA 1974). We adopt its opinion on this The decision of the district court of appeal affirming the judgment is approved. It is so order......
  • Florida Power Corp. v. Taylor, No. 75--1161
    • United States
    • Florida District Court of Appeals
    • May 28, 1976
    ...passively negligent tortfeasor becomes entitled to indemnity from the actively negligent one. Maybarduk v. Bustamante, Fla.App.4th 1974, 294 So.2d 374. Generally, the mere failure to discover an unsafe or dangerous condition created by a joint tortfeasor constitutes passive negligence and d......
  • Houdaille Industries, Inc. v. Edwards, No. 54949
    • United States
    • United States State Supreme Court of Florida
    • July 5, 1979
    ...and it has been suggested that the terms primary and secondary are more accurate and technically correct. See Maybarduk v. Bustamante, 294 So.2d 374 (Fla. 4th DCA 1974). Regardless of what specific terms are employed whether the courts say active-passive or primary-secondary what they are r......
  • Stuart v. Hertz Corp., No. 74--178
    • United States
    • Court of Appeal of Florida (US)
    • September 27, 1974
    ...is a general principle of law in this state that there is no contribution among joint tort feasors. See Maybarduk v. Bustamante, (Ricks), 294 So.2d 374, Fourth District Court of Appeal opinion filed May 10, 1974, and cases cited therein. As this court indicated in Maybarduk we find nothing ......
  • Request a trial to view additional results
16 cases
  • Ford Motor Co. v. Hill, No. 58556
    • United States
    • United States State Supreme Court of Florida
    • July 23, 1981
    ...Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); and Maybarduk v. Bustamante, 294 So.2d 374 (Fla.4th DCA 1974). We adopt its opinion on this The decision of the district court of appeal affirming the judgment is approved. It is so order......
  • Florida Power Corp. v. Taylor, No. 75--1161
    • United States
    • Florida District Court of Appeals
    • May 28, 1976
    ...passively negligent tortfeasor becomes entitled to indemnity from the actively negligent one. Maybarduk v. Bustamante, Fla.App.4th 1974, 294 So.2d 374. Generally, the mere failure to discover an unsafe or dangerous condition created by a joint tortfeasor constitutes passive negligence and d......
  • Houdaille Industries, Inc. v. Edwards, No. 54949
    • United States
    • United States State Supreme Court of Florida
    • July 5, 1979
    ...and it has been suggested that the terms primary and secondary are more accurate and technically correct. See Maybarduk v. Bustamante, 294 So.2d 374 (Fla. 4th DCA 1974). Regardless of what specific terms are employed whether the courts say active-passive or primary-secondary what they are r......
  • Stuart v. Hertz Corp., No. 74--178
    • United States
    • Court of Appeal of Florida (US)
    • September 27, 1974
    ...is a general principle of law in this state that there is no contribution among joint tort feasors. See Maybarduk v. Bustamante, (Ricks), 294 So.2d 374, Fourth District Court of Appeal opinion filed May 10, 1974, and cases cited therein. As this court indicated in Maybarduk we find nothing ......
  • Request a trial to view additional results

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