Stuart v. Hertz Corp., No. 74--178

CourtCourt of Appeal of Florida (US)
Writing for the CourtMAGER; CROSS, J., and ANDERSON, ALLEN C.
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.
Docket NumberNo. 74--178
Decision Date27 September 1974

Page 187

302 So.2d 187
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. 74--178.
District Court of Appeal of Florida, Fourth District.
Sept. 27, 1974.
Rehearing Denied Nov. 19, 1974.

Page 188

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

Herman M. Klemick of George P. Telepas, P.A., Miami, for plaintiffs Ruth and Louis McCutcheon.

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

MAGER, Judge.

Petitioners, Frank M. Stuart, M.D., P.A., and Underwriters at Lloyds, filed a petition for writ of certiorari to review an order of the trial court denying petitioners' motion to dismiss a third-party complaint.

In the proceedings before the trial court, one Ruth Johnson McCutcheon and Louis N. McCutcheon, her husband (plaintiffs below), filed suit against Hertz Corporation, George Holbrook, individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor (defendants below), respondents herein, claiming injuries arising out of an automobile accident. Stafford Holbrook was alleged to have been negligently operating a motor vehicle (owned by Hertz) which struck the motor vehicle driven by Ruth McCutcheon.

The plaintiffs' complaint alleged, inter alia, 'that as a direct and proximate result of the negligence as aforesaid, the Plaintiff was injured in and about her body and extremities And/or suffered aggravation of a known or unknown pre-existing condition or disease, incurred medical and hospital expenses, suffered pain therefrom, suffered physical handicap and her working ability was impaired . . .'. After filing its answer Hertz (and the Holbrooks) filed a third-party complaint against Dr. Frank M. Stuart (and his insurer) alleging, in part, that as a result of the injuries received in the accident involving Holbrook, plaintiff McCutcheon was medically treated by Dr. Stuart and that:

'. . . all or apart of the alleged injuries and damages complained of by

Page 189

RUTH JOHNSON MC CUTCHEON and LOUIS N. MC CUTCHEON and set out in the Amended Complaint attached hereto were proximately caused by the negligent and unskilled medical treatment by the Third Party Defendant, FRANK M. STUART, M.D., on RUTH JOHNSON MC CUTCHEON, and the Third Party Plaintiffs seek relief upon the following grounds . . .'

In essence, Hertz and the Holbrooks, third party plaintiffs below, contended that during the course of a surgical operation being performed by Dr. Stuart, third party defendant below, he (Stuart) 'negligently and carelessly severed the carotid artery' which resulted in neurological damages to Mrs. McCutcheon.

The third party complaint filed by Hertz sought indemnification from Dr. Stuart for his alleged acts of negligence as follows:

'9. That the Third Party Plaintiffs contend that whatever responsibility for damages, if any, may be ultimately determined by a jury would be limited to an orthopedic disability and that the Third Party Defendants are liable for any damages for neurological damages caused by Dr. Stuart's negligence; that the Third Party Plaintiffs are only secondarily liable for the neurological damages and are but passive tort feasors and as such are entitled to indemnification from the active tort feasor, DR. FRANK STUART.'

At the outset, we hold that a petition for common law certiorari is an appropriate method by which to review an action of the trial court in refusing to dismiss the third party complaint. Beta Eta House Corporation v. Gregory, Fla.App.1970, 230 So.2d 495. An interlocutory appeal is not available under the circumstances of this case; however, certiorari will lie inasmuch as it is our view that if the order denying petitioner's motion to dismiss the third party complaint is erroneous, such a denial would 'constitute a departure from the essential requirements of law and (would) cause material injury to the petitioners throughout the remainder of the proceedings from which there will be no adequate remedy by appeal'. Beta Eta v. Gregory, supra.

The parties concede that there are no reported decisions in this state involving the right of a tort feasor initially causing an injury to recover indemnification against a physician for aggravating the injury in the course a treatment. This case is therefore one of first impression in this state.

In order to resolve the precise question presented, it is necessary to discuss several general and well recognized principles which are deemed pertinent to the disposition of this appeal.

There is no question but that a tort feasor Is responsible for All injuries which flow naturally from the original act. As stated in J. Ray Arnold Corporation of Olustee v. Richardson, 1932, 105 Fla. 204, 141 So. 133, 135:

"Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor. . . .'

There is no dispute, therefore, as to the responsibility of Hertz (and Holbrook) the original (alleged) tort feasors to the injured plaintiff Regardless of the alleged negligence of Dr. Stuart in aggravating the original injury (assuming of course that Hertz and Holbrook are ultimately found to have been negligent). The third party complaint filed by Hertz does not suggest a departure from this rule but on

Page 190

the contrary, recognizes the existence of this general principle.

It is a general principle of law in this state that there is no contribution among joint tort feasors. See Maybarduk v. Bustamante, (Ricks), 294 So.2d 374, Fourth District Court of Appeal opinion filed May 10, 1974, and cases cited therein. As this court indicated in Maybarduk we find nothing in the recent decision in Hoffman v. Jones, Fla.1973, 280 So.2d 431, which would suggest a departure from the rule of no contribution. The third party complaint does not seek to alter or abrogate this concept; on the contrary, the third party complaint is predicated upon indemnification Rather than contribution.

A reading of Rule 1.180 FRCP, relating to third party practice and the commentaries and case law thereunder, indicates that this procedure is available in situations involving reimbursement or indemnification. Rule 1.180, FRCP, provides in part as follows:

'(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defendant as a third party plaintiff may cause a summons and complaint to be served upon a person not a party to the action Who is or may be liable to him for all or part of the plaintiff's claim against him. . . .'

In Florida Civil Practice Before Trial, 2d ed., published by The Florida Bar Continuing Legal Education, the textwriter points out:

'Third party practice is the procedure available to a defendant (or counter-defendant) to join a person who is not a party to the action in circumstances arising out of the same set of facts when the added party is or may be liable to compensate, reimburse or indemnify the defendant for the plaintiff's claim.'

Considering the foregoing principles as they relate to the facts, we are presented with a defendant who has been charged with tortious conduct giving rise to personal injuries suffered by a plaintiff and will be held responsible for any damages flowing from the original wrongful act if found to be negligent; such defendant, by way of...

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32 practice notes
  • Lincenberg v. Issen, No. 45696
    • United States
    • United States State Supreme Court of Florida
    • July 30, 1975
    ...Stembler v. Smith, 242 So.2d 472 (Fla.App. 1, 1970); Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.App. 3, 1969); and Stuart v. Hertz, 302 So.2d 187 (Fla.App. 4), Opinion filed September 27, 1974. Pertinent to the exceptions created to the rule against contribution, the Court of Appeals ......
  • Olch v. Pacific Press & Shear Co., BUCKNER-WEATHERBY
    • United States
    • Court of Appeals of Washington
    • January 23, 1978
    ...Green Colonial, Inc., 402 F.Supp. 738, 739 (W.D.Mo.1975), modified on other grounds, 544 F.2d 331 (8th Cir. 1976); Stuart v. Hertz Corp., 302 So.2d 187, 190 (Fla.Dist.Ct.App.1974). Indemnity may be permitted on the basis of an express contract, by virtue of vicarious liability, because of a......
  • Stuart v. Hertz Corp., 46553
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...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 This case concerns the right of a defendant who is the negligent tortfeasor in an automobile accident to bring a third party compla......
  • Hunt v. Ernzen, No. 2-58243
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...Tanker Co. v. United States, 409 F.2d 514 (5th Cir.); Niles v. San Rafael, 42 Cal.App.3d 230, 116 Cal.Rptr. 733; Stuart v. Hertz Corp., 302 So.2d 187 (Fla.App.); Szarewicz v. Alboro Crane Rental Corp., 73 Misc.2d 232, 341 N.Y.S.2d 153; Travelers Indem. Co. v. Trowbridge, 41 Ohio St.2d 11, 3......
  • Request a trial to view additional results
32 cases
  • Lincenberg v. Issen, No. 45696
    • United States
    • United States State Supreme Court of Florida
    • July 30, 1975
    ...Stembler v. Smith, 242 So.2d 472 (Fla.App. 1, 1970); Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.App. 3, 1969); and Stuart v. Hertz, 302 So.2d 187 (Fla.App. 4), Opinion filed September 27, 1974. Pertinent to the exceptions created to the rule against contribution, the Court of Appeals ......
  • Olch v. Pacific Press & Shear Co., BUCKNER-WEATHERBY
    • United States
    • Court of Appeals of Washington
    • January 23, 1978
    ...Green Colonial, Inc., 402 F.Supp. 738, 739 (W.D.Mo.1975), modified on other grounds, 544 F.2d 331 (8th Cir. 1976); Stuart v. Hertz Corp., 302 So.2d 187, 190 (Fla.Dist.Ct.App.1974). Indemnity may be permitted on the basis of an express contract, by virtue of vicarious liability, because of a......
  • Stuart v. Hertz Corp., 46553
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...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 This case concerns the right of a defendant who is the negligent tortfeasor in an automobile accident to bring a third party compla......
  • Hunt v. Ernzen, No. 2-58243
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...Tanker Co. v. United States, 409 F.2d 514 (5th Cir.); Niles v. San Rafael, 42 Cal.App.3d 230, 116 Cal.Rptr. 733; Stuart v. Hertz Corp., 302 So.2d 187 (Fla.App.); Szarewicz v. Alboro Crane Rental Corp., 73 Misc.2d 232, 341 N.Y.S.2d 153; Travelers Indem. Co. v. Trowbridge, 41 Ohio St.2d 11, 3......
  • Request a trial to view additional results

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