Stuart v. Hertz Corp., No. 46553

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; ENGLAND; BOYD; OVERTON; BOYD; OVERTON
Citation351 So.2d 703
PartiesFrank M. STUART, M.D., P.A., and Underwriters at Lloyds, Petitioners, v. The HERTZ CORPORATION, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor, Respondents.
Decision Date28 July 1977
Docket NumberNo. 46553

Page 703

351 So.2d 703
Frank M. STUART, M.D., P.A., and Underwriters at Lloyds, Petitioners,
v.
The HERTZ CORPORATION, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor, Respondents.
No. 46553.
Supreme Court of Florida.
July 28, 1977.
Rehearing Denied Nov. 28, 1977.

Page 704

Mark Hicks and James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioners.

Stephen A. Stieglitz, of Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, and Pomeroy & Betts, Fort Lauderdale, for respondents.

ADKINS, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the Fourth District Court of Appeal reported at 302 So.2d 187 (Fla.4th DCA 1974).

This case concerns the right of a defendant who is the negligent tortfeasor in an automobile accident to bring a third party complaint against the treating physician of the plaintiff for alleged malpractice which aggravated the injuries of the plaintiff. The Fourth District Court in an extensive opinion held the third party complaint properly sought indemnification from the treating physician, finding also that he was not a joint tortfeasor. There is decisional conflict with the holding of the Third District Court in Mathis v. Virgin, 167 So.2d 897 (Fla.3d DCA 1964). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

The record reflects that an automobile owned by respondent Hertz collided with an automobile operated by one Mrs. Johnson, who suffered orthopedic injuries in the accident. Mrs. Johnson underwent surgery performed by petitioner Dr. Stuart, for these injuries. During the course of the surgery, Mrs. Johnson's carotid artery was accidentally severed, causing a neurological disability. Mrs. Johnson instituted suit against Hertz, who filed a third party complaint against petitioners seeking indemnity for any damages recovered as a result only of the neurological injuries. Petitioner doctor's motion to dismiss the third party complaint was denied by the trial court.

In affirming the trial court the District Court held in part:

"(T)here is an equitable right to indemnity under certain factual considerations and particularly under the facts present in the case sub judice; a tortfeasor initially causing an injury has the right to seek indemnification against the physician for aggravating injury in the course of treatment. . . ." 302 So.2d at 194.

Therefore, the issue before us is simply whether or not an active tortfeasor in an automobile accident may bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff's injuries.

Page 705

We hold that such an action for indemnity may not be brought. To hold otherwise would alter traditional indemnity law by adopting a doctrine of partial equitable indemnification between active tortfeasors.

The negligent action of the defendant tortfeasor in the case sub judice was the proximate cause of the plaintiff's injuries. However, the action of petitioner doctor was in fact an aggravating intervening cause of the ultimate condition of the plaintiff. The parties causing plaintiff's injuries here were not joint tortfeasors but distinct and independent tortfeasors.

Indemnity has been defined as a right which inures to a person who has discharged a duty which is owed by him but which, as between himself and another, should have been discharged by the other. 41 Am.Jur.2d Indemnity § 1. As stated in Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.2d DCA 1969), the obligation to indemnify need not be based upon an express contract of indemnification but may arise out of a liability imposed by law. The rule is stated in 41 Am.Jur.2d Indemnity § 2.

"Although it has been said that the right to indemnity springs from a contract, express or implied, the modern cases note that contract furnishes too narrow a basis, and that principles of equity furnish a more satisfactory basis for indemnity. Thus, a right of indemnity has been said to exist whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join. The rule proposed in the Restatement of Restitution makes no specific reference to contract and appears to be based on principles of equity; it provides that a person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor (indemnitee) is barred by the wrongful nature of his conduct." (Emphasis supplied.)

To date, an action for indemnity has been restricted by this Court to situations involving either express contracts, a duty, or the existence of active and passive negligence. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Mims Crane Serv., Inc. v. Insley, supra; Winn-Dixie Stores v. Fellows, 153 So.2d 45 (Fla.1st DCA 1963); Suwannee Valley Elec. Coop., Inc. v. Live Oak, Perry and Gulf R. Co., 73 So.2d 820 (Fla.1954); Seaboard Air Line Ry. Co. v. American Dist. Elec. Protective Co., 106 Fla. 330, 143 So. 316 (1932).

The Third District Court has held that a tortfeasor is not "locked in" by allegations that he was an active tortfeasor and could make third party claims for indemnification. Central Truck Lines v. White Motor Corp., 316 So.2d 579 (Fla.3d DCA 1975). But the court still looked to proof of an active/passive relationship of the tortfeasors upon which the claim of indemnity could rest. Florida continues to follow the general rule that where each tortfeasor is chargeable with active or affirmative negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other. 41 Am.Jur.2d Indemnity § 21. See Seaboard Coast Line R. Co. v. Gordon, 328 So.2d 206 (Fla.1st DCA 1976); Armor Elev. Co., Inc. v...

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114 practice notes
  • In re Std. Jury Instructions in Civil Cases -- Report No. 09-01, No. SC09-284
    • United States
    • United States State Supreme Court of Florida
    • 4 March 2010
    ...in Gross v. Lyons, 763 So.2d 276 (Fla.2000). It is not intended to address other situations. For example, see Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977), and Eli Witt & Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). The committee recognizes that the instruction may be inadeq......
  • Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates Ltd. Partnership, No. 619
    • United States
    • Court of Special Appeals of Maryland
    • 1 September 1995
    ...(1972). The basis for this rule is that "no one should be permitted to found a cause of action on his own wrong." Stuart v. Hertz Corp., 351 So.2d 703, 705 Nevertheless, a right to indemnification may lie, notwithstanding the parties' joint and several liability, when there is a considerabl......
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 December 1980
    ...of a "wrongful act or omission" of the indemnitee which "proximately contributes to the injury complained of." Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977). See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979). If the indemnitee's b......
  • Ford Motor Co. v. Hill, No. 58556
    • United States
    • United States State Supreme Court of Florida
    • 23 July 1981
    ...the district court affirmed on the authority of Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); and Maybarduk v. Bustamante, 294 So.2d 374 (Fla.4th DCA 1974). We adopt its opinion on this The decision of the district court of......
  • Request a trial to view additional results
114 cases
  • In re Std. Jury Instructions in Civil Cases -- Report No. 09-01, No. SC09-284
    • United States
    • United States State Supreme Court of Florida
    • 4 March 2010
    ...in Gross v. Lyons, 763 So.2d 276 (Fla.2000). It is not intended to address other situations. For example, see Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977), and Eli Witt & Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). The committee recognizes that the instruction may be inadeq......
  • Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates Ltd. Partnership, No. 619
    • United States
    • Court of Special Appeals of Maryland
    • 1 September 1995
    ...(1972). The basis for this rule is that "no one should be permitted to found a cause of action on his own wrong." Stuart v. Hertz Corp., 351 So.2d 703, 705 Nevertheless, a right to indemnification may lie, notwithstanding the parties' joint and several liability, when there is a considerabl......
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 December 1980
    ...of a "wrongful act or omission" of the indemnitee which "proximately contributes to the injury complained of." Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977). See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979). If the indemnitee's b......
  • Ford Motor Co. v. Hill, No. 58556
    • United States
    • United States State Supreme Court of Florida
    • 23 July 1981
    ...the district court affirmed on the authority of Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); and Maybarduk v. Bustamante, 294 So.2d 374 (Fla.4th DCA 1974). We adopt its opinion on this The decision of the district court of......
  • Request a trial to view additional results

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