Robert L. Turchin, Inc. v. Gelfand Roofing, Inc.
| Decision Date | 01 May 1984 |
| Docket Number | 83-1354 and 83-1693,Nos. 83-792,s. 83-792 |
| Citation | 450 So.2d 554 |
| Parties | ROBERT L. TURCHIN, INC., Appellant, v. GELFAND ROOFING, INC., Trop-X Corporation, Sam Bloom Plumbers, Inc., Napoleon Steel Contractors, Inc., Cather Industries, Inc., Warren Jones & Warren, Inc., and A.C. Electric Company of Florida, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Greene & Cooper and Joan M. Bolotin; Walter C. Kovner and Edward S. Kaplan, Miami, for appellant.
Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, Lowndes, Drosdick, Doster & Kantor and Timothy J. Manor and Alice Blackwell White, Orlando, Johnson & Bakst, West Palm Beach, and Wesley A. Lauer, Miami, Sherman W. Crawford, Coral Gables, Pyszka & Kessler and Phillip D. Blackmon, Miami, Bedzow & Korn and Alan J. Kan, North Miami, for appellees.
Before HUBBART, BASKIN and JORGENSON, JJ.
In these consolidated appeals, we reverse the dismissals or adverse judgments on the pleadings of seven third-party complaints and remand for further proceedings consistent with the views expressed herein.
A condominium association and individual unit owners brought an action against the developer of a condominium building and Turchin, the general contractor, alleging negligence and breach of warranty in the construction of the building. Turchin filed third-party actions against seven subcontractors of the condominium project, the seven appellees. The third-party complaints sought contribution under section 768.31, Florida Statutes (1981), if it were found that active negligence of the subcontractors combined with active negligence of Turchin or, in the alternative, indemnity if it were found that active negligence of the subcontractors resulted in vicarious liability on Turchin's part.
Turchin, asserting that it had acted only as the developer's agent in acquiring the services of the subcontractors and therefore, as a matter of law, was not liable to the condominium unit owners and association for any negligence attributable to the subcontractors, then moved for a summary judgment on the primary claim. The trial court denied the motion "because there is a question of fact on the issue as to whether ... [Turchin] was an agent of" the developer.
The subcontractors filed motions either for dismissal or a judgment on the pleadings of the third-party complaints. A successor judge granted each of the motions upon a finding that the third-party complaints and their attached exhibits "clearly indicate on their face that ... all contracts executed by the aforementioned Third-Party Defendant corporations were executed by and between them and Robert L. Turchin, Inc. acting only as an agent for" the developer.
Turchin's quandary, quite simply, is that by the appealed orders Turchin has been precluded from seeking contribution or indemnification from the subcontractors because the...
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