T & S Enterprises Handicap Accessibility, Inc. v. Wink Indus. Maintenance and Repair, Inc.

• Decision Date: 13 May 2009
• Docket Number: No. 2D08-78.,2D08-78.
• Citation: 11 So.3d 411
• Parties: T & S ENTERPRISES HANDICAP ACCESSIBILITY, INC., a Florida corporation, Appellant, v. WINK INDUSTRIAL MAINTENANCE & REPAIR, INC., a Florida corporation; L.K. Industrial Services, Inc., a Florida corporation; Brian Clark and Jennifer Clark, husband and wife, Appellees.
• Court: Florida District Court of Appeals

11 So.3d 411

T & S ENTERPRISES HANDICAP ACCESSIBILITY, INC., a Florida corporation, Appellant, v. WINK INDUSTRIAL MAINTENANCE & REPAIR, INC., a Florida corporation; L.K. Industrial Services, Inc., a Florida corporation; Brian Clark and Jennifer Clark, husband and wife, Appellees.

No. 2D08-78.

District Court of Appeal of Florida, Second District.

May 13, 2009.

Rehearing Denied June 19, 2009.

Damian B. Mallard and Sara B. Mallard of Mallard & Zimmerman, Sarasota, for Appellant.

James M. Ragano and Cynthia M. Dennen of Dennen Ragano, P.L.L.C., Tampa, for Appellee Wink Industrial Maintenance & Repair, Inc.

No appearance for Appellees L.K. Industrial Services, Brian Clark, and Jennifer Clark.

DAKAN, STEPHEN L., Associate Senior Judge.

T & S Enterprises Handicap Accessibility, Inc., appeals the trial court's order dismissing its third-party claim for contribution against the appellee, Wink Industrial Maintenance & Repair, Inc. We conclude that the trial court's ruling was correct as applied to the facts alleged in this case and affirm.

Brian and Jennifer Clark filed a complaint against T & S alleging that Brian Clark was injured and suffered damages in performing repair work on T & S's premises as the result of the negligence of T & S. It was alleged that Brian Clark was an employee of Wink, the entity hired by T & S to perform the repairs. Wink was not made a party defendant, even though it did not have worker's compensation insurance covering Brian Clark.

T & S filed a third-party complaint against Wink for contribution, alleging that Wink was negligent in failing to properly train Brian Clark, failing to properly supervise him, failing to provide adequate equipment, and failing to provide a proper and safe work environment.

Following a hearing on Wink's motion to dismiss, the trial court entered its order dismissing T & S's third-party complaint. The trial court found that the Florida Legislature abolished joint and several liability for joint tortfeasors and that section 768.31, Florida Statutes (2006), mandates that a court enter judgment against a party on the basis of that party's percentage of fault, and not on the basis of joint and several liability. The trial court also found that the right of contribution exists only in favor of a tortfeasor who has paid more than its pro rata share of common liability and that the third-party complaint failed to state a cause of action for contribution as a matter of law.

Section 768.81, the Uniform Contribution Among Tortfeasors Act, was in effect at the time of the trial court's ruling and is still in effect. The Act provides that when two or more persons become jointly or severally liable in tort for the same injury to person or property, there is a right of contribution among them.

In spite of the statutory language which appears to limit the right to seek contribution only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, for over 30 years, district courts of appeal in this state have held that a defendant could file a third-party claim against another in the same case brought by the plaintiff, even though the liability of that third-party plaintiff had not yet been established. See, e.g., Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So.2d 484, 487 (Fla. 4th DCA 2000); Attorneys' Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So.2d 1250, 1251 (Fla. 2d DCA 1989); N.H. Ins. Co. v. Petrik, 343 So.2d 48, 48-50 (Fla. 1st DCA 1977); Fla. Power Corp. v. Taylor, 332 So.2d 687, 692 (Fla. 2d DCA 1976); Nationwide Mut. Ins. Co. v. Fouts, 323 So.2d 593, 594 (Fla. 2d DCA 1975).

The rationale was that rule 1.180, Florida Rules of Civil Procedure, provides for third-party actions against a person not a party to the main action who is or may be liable to a...