Paul v. Heritage Ins. Co. of America, 77-2539

• Decision Date: 15 August 1978
• Docket Number: No. 77-2539,77-2539
• Citation: 363 So.2d 563
• Parties: Nicholas PAUL, and the State of Florida, Department of Health and Rehabilitative Services, Appellants, v. HERITAGE INSURANCE COMPANY OF AMERICA, a Foreign Corporation, and Michelle Hines, Appellees.
• Court: Florida District Court of Appeals

Page 563

363 So.2d 563

Nicholas PAUL, and the State of Florida, Department of Health and Rehabilitative Services, Appellants, v. HERITAGE INSURANCE COMPANY OF AMERICA, a Foreign Corporation, and Michelle Hines, Appellees.

No. 77-2539.

District Court of Appeal of Florida, Third District.

Aug. 15, 1978.

Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, Vernis & Bowling and Stephen N. Montalto, Coconut Grove, for appellants.

Jay H. Hernberg, Fort Lauderdale, for appellees.

Before PEARSON, BARKDULL and KEHOE, JJ.

PEARSON, Judge.

Nicholas Paul is the plaintiff in the trial court. The State of Florida, Department of Health and Rehabilitative Services, is a third party defendant to a third party complaint brought by Heritage Insurance Company of America and Michelle Hines, who were defendants in the original action. This appeal was brought by the plaintiff, Nicholas Paul, from a summary final judgment entered for the defendants Heritage Insurance Company and Michelle Hines. It was not until after the entry of the summary judgment which is appealed that the State of Florida was brought into the case as a third party defendant. After having been brought into the case upon the third party complaint, the State joined in this appeal to review the same summary judgment. The judgment entered by the trial court is sharply limited as to its grounds, and in order to limit the holding of the court in this appeal, the order is set forth:

"THIS CAUSE came on to be heard before me on Defendants' Motion for Summary Judgment and the Court having considered and having been specifically advised concerning Dade County vs. (v.) Kelly, 348 So.2d 49 (Fla.App. 1st, 1977) and having heard argument of counsel and being otherwise fully advised in the premises, this Court finds the Defendants' Motion for Summary Judgment should be granted. This Court further finds the Defendants' Motion to Join as a Third Party Defendant, the State of Florida, Department of Health and Rehabilitative Services should be granted. Any defensive pleadings and Motions which the State of Florida may be required to file pursuant to the Florida Tort Claims Acts are hereby stayed pending resolution of the appeal to be taken by the Plaintiffs from this Order. It is hereupon "ORDERED AND ADJUDGED that the Defendants' Motion for Summary Judgment be and the same is hereby granted and Summary Final Judgment is hereby entered in Defendants' favor. This Court determines that MICHELLE HINES and HERITAGE INSURANCE COMPANY OF AMERICA may not be sued pursuant to the holding in Dade County vs. (v.) Kelly, supra. This Court specifically makes no finding as to any other issues which may have arisen."

Since the publication of Metropolitan Dade Cty. v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977), upon which the trial court relied, the District Court of Appeal, Second District, State of Florida, has directly considered the question of whether a state employee is a proper party defendant in an action for personal injuries allegedly occasioned by...