Maybarduk v. Bustamante

• Decision Date: 10 May 1974
• Docket Number: No. 73--984,73--984
• Citation: 294 So.2d 374
• Parties: Alexander P. MAYBARDUK and Employers Fire Insurance Company, Appellants, v. Alberto S. BUSTAMANTE et al., Appellees.
• Court: Florida District Court of Appeals

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 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 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 concluding, this court is not unaware of the general proposition of law that There is no contribution among joint tort-feasors. Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So.2d 45; Westinghouse Electric Corp. v. J. C. Penney Co., Fla.App.1964, 166 So.2d 211; Stembler v. Smith, Fla.App.1970, 242 So.2d 472; Aircraft taxi Co. v. Perkins, Fla.App.1969, 227 So.2d 722; 60 A.L.R.2d 1366; cf. 8 A.L.R.3d 639; 46 A.L.R.3d 801. In the trial court, the defendants contended that the application of this principle would preclude Maybarduk from maintaining his cross claim as against his codefendants and joint tort-feasors. We would observe, however, that there is a recognized exception to this general rule which would permit an action for contribution or indemnification. ² In Seaboard Air Line Ry. Co., supra, 143 So. at p. 316, it is stated:

'Generally, one of two joint tort-feasors cannot have contribution from the other. But there are exceptions to this rule, one of which is in that class of cases where although both parties are at fault and both liable To the person injured, such as an employee of one of them, yet they are not in pari delicto as to each other, As where the injury has resulted from a violation of the duty which one owes the other, so that as between themselves, the act or omission of the one from whom indemnity is sought is the primary cause of the injury. . . .'

Although the aforementioned principle talks in terms of 'a violation of the duty which one owes the other' the omission of which is 'the primary cause of the injury' later cases seem to couch this exception in terms of 'active-passive' negligence. ³ Westinghouse Electric Corp. v. J. C. Penney Co., supra; Peoples Gas System, Inc. v. B & P Restaurant Corp., Fla.App.1973, 271 So.2d 804; Florida Power & Light Co. v. General Safety Equip. Co., Fla.App.1968, 213 So.2d 486; Stembler v. Smith, supra. In Western Electric Corp. v. J. C. Penney Co., supra, the First District in quoting from Winn-Dixie Stores, Inc. v. Fellows, supra, made reference to the 'active-passive' principle:

"One of these exceptions or limitations rests solely upon a difference between The kinds of negligence of two tort-feasors, and comes into play when the active negligence of one tort-feasor and the passive negligence of another tort-feasor combine and proximately cause an injury to a third person. * * * In such case, the passively negligent tort-feasor, who is compelled to pay damages to the injured person on account of the injury, is entitled to indemnity from the actively negligent tort-feasor. * * *" (166 So.2d 214).

Illustrative of the foregoing are the following quoted statements appearing in the Winn-Dixie decision, Supra, 153 So.2d at pp. 49--50:

"Under the common law, an injured person can sue anyone or all of several joint tort-feasors whose negligent acts or omissions unite and produce his injury. * * *

"The general rule of the common law is that there is no right to indemnity as between joint tort-feasors. * * * This general rule is subject to certain well define exceptions or limitations, which coalesce in the doctrine that a party secondarily liable in a tort action is entitled to indemnity from the party primarily liable, even in cases where both parties are denominated joint tort-feasors.

"One of these exceptions or limitations rests solely upon a difference between the kinds of negligence of two tort-feasors, and comes into play when the active negligence of one tort-feasor and the passive negligence of another tort-feasor combine and proximately cause an injury to a third person. * * * In such case, the passively negligent tort-feasor,...