McKenzie Tank Lines, Inc. v. Empire Gas Corp., No. BS-87

CourtCourt of Appeal of Florida (US)
Writing for the CourtSMITH
Citation538 So.2d 482,14 Fla. L. Weekly 282
Docket NumberNo. BS-87
Decision Date27 January 1989
Parties14 Fla. L. Weekly 282 McKENZIE TANK LINES, INC., a Florida corporation, Appellant v. EMPIRE GAS CORPORATION, a Missouri corporation, and Empiregas, Inc., of Jay, a Florida corporation, Appellees.

Page 482

538 So.2d 482
14 Fla. L. Weekly 282
McKENZIE TANK LINES, INC., a Florida corporation, Appellant
v.
EMPIRE GAS CORPORATION, a Missouri corporation, and Empiregas, Inc., of Jay, a Florida corporation, Appellees.
No. BS-87.
District Court of Appeal of Florida,
First District.
Jan. 27, 1989.

Robert D. Bell of Bell, Hahn & Schuster, Pensacola, for appellant.

Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola, for appellees.

SMITH, Chief Judge.

Appellant, McKenzie Tank Lines, Inc. (McKenzie), appeals a judgment entered against McKenzie and Florida Insurance Guaranty Association (FIGA). We affirm.

McKenzie and Empire Gas Corporation (Empire) were named as codefendants in a negligence suit stemming from an explosion at a facility owned by Empire. The explosion occurred as a result of negligence of one of McKenzie's employees while he was in the process of unloading a tank of LP gas from McKenzie's tank truck into a storage tank owned by Empire, located at Empire's plant in Jay, Florida.

Page 483

McKenzie and Empire filed cross-claims against each other, both alleging that the negligence of the other caused the explosion. Empire also sought a judgment against McKenzie for damages to its business and property caused by the explosion. Before trial, Empire settled with the multiple plaintiffs for $464,205.00 in exchange for a release of liability for Empire and McKenzie. After the settlements, the several plaintiffs dismissed their complaints. Thereafter, McKenzie and Empire went to trial before a jury on the issue of liability between them, and McKenzie was found to be one hundred percent liable. A judgment was entered against McKenzie in favor of Empire for $109,000.00, representing the amount of property and business damages suffered by Empire in the explosion. On appeal of that judgment, this court affirmed, McKenzie Tank Lines, Inc. v. Empire Gas Corp., 487 So.2d 1174 (Fla. 1st DCA 1986). Subsequently, Empire filed a motion for contribution seeking recovery from McKenzie of the amounts paid in settlement to the plaintiffs in the underlying action. It is from final judgment rendered in the contribution action that this appeal is taken.

During the pendency of the contribution action, McKenzie's insurance carrier became insolvent, and FIGA became the successor insurer. After a hearing and argument before the court resulting in the trial court's announcement of a ruling in favor of Empire for the full amount of its damages, FIGA filed a motion for reduction of its liability for any judgment rendered on the contribution claim, basing its motion on the provisions of section 631.54(3), Florida Statutes (1985), which states in part that a "covered claim" does not include any amount owed an insurer, a reinsurer, or an underwriting association as subrogation recoveries or otherwise. FIGA's motion also relied upon that provision of the statute stating that member insurers shall have no right of subrogation against the insured of an insolvent member. These provisions are pertinent, FIGA maintained below and here, because part of the sums paid by Empire in the settlements which were the subject of the contribution award were paid directly to insurer members of FIGA.

In the final judgment here appealed, the trial court found, among other things, that the contribution statute, section 768.31, Florida Statutes (1985) (the Uniform Contribution Among Tortfeasors Act) was applicable; that FIGA was not entitled to a reduction of the contribution judgment; and that Empire was entitled to judgment against McKenzie and FIGA for the full amount paid by Empire in settlement of the claims of the several plaintiffs against Empire and McKenzie.

On appeal, McKenzie contends that the trial court erred in denying FIGA's motion for reduction of Empire's recovery against FIGA by the amount representing subrogation claims paid by Empire to insurance companies who were FIGA members. McKenzie also contends that the trial court erred in fixing the amount of the judgment awarded to Empire, in that the amount paid by Empire in its settlements with the several plaintiffs exceeded amounts that were reasonable. Only the first point requires extended discussion.

Much of the argument in the briefs of both parties concerns the trial court's ruling that Empire is entitled to contribution under the statute, section 768.31, as opposed to the remedy of subrogation. McKenzie focuses particularly upon the trial court's ruling that the element of "common liability", which must be present to permit Empire to recover by way of contribution against McKenzie, is satisfied by the allegations of the complaints in the underlying litigation in which both Empire and McKenzie were charged as joint tortfeasors. Empire agrees with this interpretation of the contribution action, but cites no authority supporting this position, while McKenzie vigorously opposes the trial court's ruling, pointing to the Fifth District's recent decision in West American Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204 (Fla. 5th DCA), re. denied, 504 So.2d 769 (Fla.1987).

In West American, an automobile owner's insurer (West American Insurance Company) settled the claim of a passenger

Page 484

injured in a collision between the automobile and a taxicab, and then brought an action for contribution against the taxicab company for contribution to recover sums paid in the settlement. However, at trial, the taxicab company was found...

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8 practice notes
  • Kachanis v. US, Civ. A. No. 92-0487 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • February 8, 1994
    ...in the Fund. Mr. Kachanis and the United States contend that Ferrari is incorrect and cite McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla.App.1989) in support of their position. In McKenzie, McKenzie and Empire Gas were co-defendants in a negligence action. Empire settled......
  • Dade Cty. Sch. Bd. v. Radio Station WQBA, No. 91,767.
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1999
    ...parties were not joint tortfeasors; therefore contribution is not an available option. See McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482, 484 (Fla. 1st DCA 1989) (finding that contribution will fail when the party against whom contribution is sought is found 100% liable for t......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (Fla.1928); McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla. 1st DCA), rev. denied, 544 So.2d 200 The policy behind the doctrine is to prevent unjust enrichment by assuring that the party responsibl......
  • Gulf Group Holdings v. Coast Asset Management, No. 04-20850-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • February 13, 2007
    ...of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity. McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482, 486 (Fla. 1st DCA 1989). At the same time, a release under Florida law "cannot affect a claim that has not yet matured." Xanadu of Cocoa Be......
  • Request a trial to view additional results
8 cases
  • Kachanis v. US, Civ. A. No. 92-0487 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • February 8, 1994
    ...in the Fund. Mr. Kachanis and the United States contend that Ferrari is incorrect and cite McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla.App.1989) in support of their position. In McKenzie, McKenzie and Empire Gas were co-defendants in a negligence action. Empire settled......
  • Dade Cty. Sch. Bd. v. Radio Station WQBA, No. 91,767.
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1999
    ...parties were not joint tortfeasors; therefore contribution is not an available option. See McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482, 484 (Fla. 1st DCA 1989) (finding that contribution will fail when the party against whom contribution is sought is found 100% liable for t......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (Fla.1928); McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla. 1st DCA), rev. denied, 544 So.2d 200 The policy behind the doctrine is to prevent unjust enrichment by assuring that the party respon......
  • Gulf Group Holdings v. Coast Asset Management, No. 04-20850-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • February 13, 2007
    ...of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity. McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482, 486 (Fla. 1st DCA 1989). At the same time, a release under Florida law "cannot affect a claim that has not yet matured." Xanadu o......
  • Request a trial to view additional results

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