Walter Taft Bradshaw & Associates, P.A. v. Bedsole, s. 77-1684
| Decision Date | 29 August 1979 |
| Docket Number | Nos. 77-1684,1880 and 1881,s. 77-1684 |
| Citation | 374 So.2d 644 |
| Court | Florida District Court of Appeals |
| Parties | WALTER TAFT BRADSHAW & ASSOCIATES, P.A., Appellant, v. Noel BEDSOLE, N.B.C. Homes, Inc., etc., et al., and Valley Crest Landscape, Inc., of Florida, Appellees. CYPRESS BEND CORPORATION, Appellant, v. Noel BEDSOLE, N.B.C. Homes, Inc., etc., et al., Walter Taft Bradshaw& Associates, P.A., and Valley Crest Landscape, Inc., of Florida, Appellees. WALTER TAFT BRADSHAW & ASSOCIATES, P.A., Appellant, v. Noel BEDSOLE, N.B.C. Homes, Inc., etc., et al., Appellees. |
Jeanne Heyward and Marco B. Loffredo of Knight, Peters, Pickle, Niemoeller & Flynn, Miami, for appellant-Walter Taft Bradshaw & Associates, P. A.
Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appellant-Cypress Bend Corp.
Larry Klein, West Palm Beach, and Pyszka, Kessler, Adams & Solomon, Fort Lauderdale, for appellee-Valley Crest Landscape, Inc., of Florida.
The question presented by this appeal is whether two third party complaints stated a cause of action for common law or contractual indemnity. The trial court held that neither complaint was sufficient and dismissed them with prejudice. That judicial act is the error relied upon for reversal. We affirm.
Cypress Bend Corp. was the general contractor on a condominium project. Walter Taft Bradshaw was employed to prepare plans and specifications and supervise the landscaping of the project. The landscape subcontractor, Valley Crest Landscape, Inc., employed Noel Bedsole, who was injured while assisting in the actual landscape work. Bedsole sued Cypress Bend and Bradshaw, alleging active negligence against both. Each of said defendants filed a third party complaint against Bedsole's employer, Valley Crest, in which they claimed common law and contractual indemnity and contribution. Said third party complaints alleged Valley Crest was guilty While we were laboring with this and several other cases involving third party complaints for indemnity arising out of tortious injury situations, the Supreme Court of Florida decided Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, Case No. 54,949, Opinion filed July 5, 1979, and Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Company, 374 So.2d 487, Case No. 54,349, Opinion filed July 5, 1979. Those timely decisions resolve many of the problems the inferior courts of this state were having with the application of both common law and contractual indemnity.
of various acts of negligence which were the proximate cause of Bedsole's injuries. In addition, said complaints alleged that the third party plaintiffs were merely secondarily or passively negligent whereas Valley Crest was actively negligent.
With regard to common law indemnity Houdaille, supra, reiterates one of the principles announced in Stuart v. Hertz, 351 So.2d 703 (Fla.1977), which is worth mentioning again here:
Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the Whole fault is in the one against whom indemnity is sought. Stuart v. Hertz Corporation. It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter's wrongdoing for which the former is held liable. Houdaille, supra, at p. 492.
The court points out that indemnity does not lie in every situation where another may also be partially at fault:
Indemnity can only be applied where the liability of the person seeking indemnity is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed. Houdaille, supra, at p. 493.
In determining whether a party is entitled to indemnity the court looks to the party seeking indemnity to determine whether that party is without fault.
In the present case both original defendants, Cypress Bend and Bradshaw, allege in...
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Westinghouse Elec. Corp. v. Dade County
...77, 79 (Fla. 5th DCA 1981) (indemnitee required to prove all actionable facts leading to recovery); Walter Taft Bradshaw & Associates v. Bedsole, 374 So.2d 644, 647 (Fla. 4th DCA 1979) (indemnitee required to state cause of action for contractual Reversed and remanded. ...
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Indemnity actions
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