State, Dept. of Transp. v. v. E. Whitehurst & Sons, Inc., No. 93-11
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | KAHN |
| Citation | 636 So.2d 101 |
| Parties | 19 Fla. L. Weekly D1075, 19 Fla. L. Weekly D768 STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. V.E. WHITEHURST & SONS, INC., Appellee. |
| Docket Number | No. 93-11 |
| Decision Date | 07 April 1994 |
Page 101
v.
V.E. WHITEHURST & SONS, INC., Appellee.
First District.
Rehearing Denied May 19, 1994.
Page 102
Lee T. Griffin and Alan K. Ragan, Jacksonville, for appellant.
Francis J. Carroll, Jr., Daytona Beach, for appellee.
KAHN, Judge.
Appellant, the State of Florida, Department of Transportation (FDOT), challenges a Final Order Granting Third Party Defendant's, Whitehurst's, Motion to Dismiss the Department's Second Amended Third Party Complaint. FDOT urges us to find error because the second amended third party complaint stated a cause of action for indemnity and contribution. We affirm in part and reverse in part.
Page 103
On October 8, 1991, Willie Duncan, Jr. and his wife Judy initiated an action against FDOT sounding in negligence. The complaint alleged that an FDOT employee negligently operated an FDOT vehicle and struck Duncan, an employee of Whitehurst Construction. Whitehurst was an FDOT contractor engaged in a repaving project.
FDOT brought a third party action against Whitehurst, seeking indemnification or contribution. Whitehurst filed a response containing affirmative defenses and motions to dismiss. The trial court granted Whitehurst's motions, giving FDOT leave to file an amended complaint. FDOT then amended its third party complaint, which was again dismissed with leave to file a second amended third party complaint. FDOT filed a second amended third party complaint seeking indemnification or contribution from Whitehurst.
In the Second Amended Third Party Complaint, FDOT alleged entitlement to indemnity from Whitehurst under a hold harmless provision contained in the construction contract between Whitehurst and FDOT (R. 75-76). The provision stated:
To the extent allowed by law the contractor shall indemnify, defend and save and hold harmless, the State, the Department and all of its officers, agents or employees from all suits, actions, claims[,] demands, liabilities of any nature whatsoever arising out of, because of, or due to breach of this agreement by the contractor, its subcontractors, agents or employees or due to any negligent act or occurrence of omission or commission of the contractor, its subcontractors, agents or employees. Neither contractor nor any of its subcontractors will be liable under this section for damages directly caused or resulting from the sole negligence of the Department or any of its officers, agents or employees. The parties agree that 1% of the total compensation of the contractor for performance of this agreement is the specific consideration for the Department to the contractor for the contractor indemnity agreement.
In the Second Amended Third Party Complaint, FDOT contended:
Whitehurst negligently failed to adequately supervise Plaintiff and negligently failed to take precautionary measures to prevent harm to Plaintiff, including but not limited to failing to clothe the Plaintiff in sufficient reflective clothing and failing to erect "the safety cones" which would be necessary to reasonably insure the safety of Plaintiff given that Whitehurst required him to work in close proximity to onrushing traffic.
The complaint further alleged that the above-described negligence of Whitehurst directly and proximately caused or contributed to the injuries allegedly sustained by Duncan as set forth in the complaint. Because the indemnity agreement stated that Whitehurst would indemnify FDOT unless FDOT was solely negligent, FDOT demanded contractual indemnity under the agreement.
FDOT also claimed a right to contribution from Whitehurst pursuant to section 768.31, Florida Statutes. In the Second Amended Third Party Complaint, FDOT maintained that "Whitehurst's negligent acts ... were of a nature so substantially certain to result in injury that these acts amounted to gross negligence." FDOT further asserted:
As plaintiff's injuries were the direct and proximate result of the gross negligence of Whitehurst, Whitehurst is not immune from an action for contribution under Section 440.11, Florida Statutes, providing for the exclusive liability of an employer to an employee.
The trial court without explanation or comment dismissed the Second Amended Third Party Complaint with prejudice.
We reverse the order as to the indemnity count and affirm...
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Chiang v. Wildcat Groves, Inc., No. 96-04531
...Construction Co., 645 So.2d 133 (Fla. 4th DCA 1994), and State, Department of Transportation v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101 (Fla. 1st DCA), review denied, 645 So.2d 456 (Fla.1994). The trial court accepted the appellees' argument and rendered an order dismissing Dr. Chia......
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Roos v. Morrison, No. 1D04-1763.
...state the element of proximate causation as a matter of law. See State, Dep't of Transp. v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101, 104 (Fla. 1st DCA 1994) ("Factual determinations . . . are not properly determined in a motion to We, therefore, reverse and remand with directio......
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Walton Dodge Chrysler-Plymouth Jeep and Eagle, Inc. v. H.C. Hodges Cash & Carry, Inc., CHRYSLER-PLYMOUTH
...the employer is immunized from liability by the compensation act for tort." Id. at 429. In State, DOT v. V.E. Whitehurst & Sons, 636 So.2d 101 (Fla. 1st DCA) rev. denied, 645 So.2d 456 (Fla.1994), this court dismissed a contribution claim by a third-party tort-feasor against an emp......
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Insurance Company of North America v. Quality Commercial Group, Inc., No. 95-83
...on the part of both Quality and INA's insured, Spring Hill Lanes, Inc. Department of Transp. v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101 (Fla. 1st DCA), rev. den., 645 So.2d 456 (Fla.1994). A party seeking contribution "must plead and prove, among other necessary allegations, [i......
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Chiang v. Wildcat Groves, Inc., No. 96-04531
...Construction Co., 645 So.2d 133 (Fla. 4th DCA 1994), and State, Department of Transportation v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101 (Fla. 1st DCA), review denied, 645 So.2d 456 (Fla.1994). The trial court accepted the appellees' argument and rendered an order dismissing Dr. Chia......
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Roos v. Morrison, No. 1D04-1763.
...state the element of proximate causation as a matter of law. See State, Dep't of Transp. v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101, 104 (Fla. 1st DCA 1994) ("Factual determinations . . . are not properly determined in a motion to We, therefore, reverse and remand with directio......
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Walton Dodge Chrysler-Plymouth Jeep and Eagle, Inc. v. H.C. Hodges Cash & Carry, Inc., CHRYSLER-PLYMOUTH
...the employer is immunized from liability by the compensation act for tort." Id. at 429. In State, DOT v. V.E. Whitehurst & Sons, 636 So.2d 101 (Fla. 1st DCA) rev. denied, 645 So.2d 456 (Fla.1994), this court dismissed a contribution claim by a third-party tort-feasor against an emp......
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Insurance Company of North America v. Quality Commercial Group, Inc., No. 95-83
...on the part of both Quality and INA's insured, Spring Hill Lanes, Inc. Department of Transp. v. V.E. Whitehurst & Sons, Inc., 636 So.2d 101 (Fla. 1st DCA), rev. den., 645 So.2d 456 (Fla.1994). A party seeking contribution "must plead and prove, among other necessary allegations, [i......