Miami Intern. Merchandise Mart, Inc. v. Gene Somers & Associates, Inc.

• Decision Date: 28 April 1987
• Docket Number: No. 86-287,86-287
• Citation: 12 Fla. L. Weekly 1109,506 So.2d 54
• Parties: 12 Fla. L. Weekly 1109 MIAMI INTERNATIONAL MERCHANDISE MART, INC., Appellant, v. GENE SOMERS & ASSOCIATES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 54

506 So.2d 54

12 Fla. L. Weekly 1109

MIAMI INTERNATIONAL MERCHANDISE MART, INC., Appellant, v. GENE SOMERS & ASSOCIATES, INC., Appellee.

No. 86-287.

District Court of Appeal of Florida, Third District.

April 28, 1987.

E. James Schmick, Miami, for appellant.

Ligman, Martin, Shiley, Neswiacheny & Evans and Gordon Evans, Coral Gables, for appellee.

Before BARKDULL, NESBITT, and PEARSON, DANIEL S., JJ.

PER CURIAM.

We reverse the trial court's order dismissing the third party complaint for contractual indemnity filed by Miami International Merchandise Mart, Inc. (MIMM) against Gene Somers & Associates, Inc. (GS & A), the injured plaintiff's employer. Section 440.11(1), Florida Statutes (1985) is unconstitutional to the extent that it operates to immunize an employer from liability to a third party where the employer contracted to indemnify the third party against liability for injuries to its employees. City of Clearwater v. L.M. Duncan & Sons, Inc., 466 So.2d 1116 (Fla.2d DCA 1985), aff'd, 478 So.2d 816 (Fla.1985); see Sunspan Eng'g & Constr. Co. v. Spring-Lock Scaffolding, 310 So.2d 4 (Fla.1975); Mortgage Corp. of America v. Vorndran, 334 So.2d 88 (Fla.3d DCA 1976). Since the parties' lease agreement provided that GS & A would indemnify MIMM for liability it might incur to GS & A's employees, the third party complaint stated a cause of action for indemnity and should not have been dismissed. GS & A's contention that the dismissal was properly granted because MIMM's negligence was the sole cause of the employee's injuries is unavailing because it presumes the existence of a fact not yet decided. See L.M. Duncan & Sons, Inc. v. City of Clearwater, 478 So.2d 816, 817-18 (Fla.1985). Accordingly, the order dismissing MIMM's third party complaint is reversed.