Welch v. Complete Care Corp., 2D00-5250.
| Decision Date | 07 June 2002 |
| Docket Number | No. 2D00-5250.,2D00-5250. |
| Citation | 818 So.2d 645 |
| Parties | Michael P. WELCH, as assignee of David J. and Adele Pinkster, Howard Pinkster d/b/a A.T.I.M.A. Prime Properties, and American Rental Dealers Insurance, Appellant, v. COMPLETE CARE CORPORATION and Professional Business Owners Association, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Roy L. Glass of Law Offices of Roy L. Glass, P.A., St. Petersburg, for Appellant.
Michael Miller of Pine & Berger, Tampa, for Appellee Complete Care Corp.
Shari D. Castagnos and J. Gregory Giannuzzi of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellee Professional Business Owners Association, Inc.
Michael Welch challenges a final summary judgment entered in favor of Complete Care Corporation and Professional Business Owners Association (PBOA) and underlying orders that dismissed several counts of his complaint. As we will explain in detail, we affirm in part and reverse in part.
Welch was employed by Complete, a lawn and landscaping company. Complete leased its business premises, a storage unit, from Prime Properties. Welch was injured on the job when the garage door on the storage unit malfunctioned. When the door mechanism broke, a piece of metal struck Welch in the face, causing severe injuries to his eye and cheek. Welch received workers' compensation benefits from Complete and its insurer, PBOA.
Welch also filed suit against Complete's landlord, Prime and its principals, David, Adele, and Howard Pinkster, asserting that they breached their duty to maintain the premises. He ultimately settled that case for $70,000. As part of the settlement, Prime and the Pinksters also assigned to Welch "all legal and equitable rights of action, claims and interest, including but not limited to indemnity and contribution which [they] may have against Complete and its insurance company."
As Prime's assignee, Welch then sued Complete and PBOA. He asserted five counts: declaratory relief, contractual indemnity, common law indemnity, contribution, and equitable subrogation. During the course of the litigation, the circuit court dismissed all the counts except the ones seeking declaratory relief and damages based on contractual indemnification. The court eventually entered summary judgment in favor of Complete and PBOA on those two counts. In this appeal, Welch challenges the court's rulings on his claims for equitable subrogation, common law indemnity, and contractual subrogation.
In Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999), the court held that equitable subrogation is generally appropriate when the following five factors exist:
(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.
Thus, in the prototypical tort case, equitable subrogation arises when one of several defendants pays the plaintiff's entire claim that, in equity, should have been paid by one of the other defendants. See id. WQBA further limited the doctrine in tort cases to situations where the party seeking subrogation has obtained a release for the other party responsible for the debt. Cf. id. at 647 ().
In this case, equitable subrogation would only be appropriate if Prime had paid Welch's entire claim, some or all of which should have been paid by Complete, and if Prime had obtained a release for Complete from Welch. The record does not establish these facts. But there is another reason why equitable subrogation was not applicable in this case. Under the doctrine, the person discharging the debt, Prime, stood in the shoes of the person whose claim had been discharged, Welch, and succeeded to his rights against Complete and PBOA. See id. But Welch had no rights to sue Complete and PBOA in tort because Complete was his employer and paid workers' compensation benefits for the accident. It is immune from suit under section 440.11, Florida Statutes (1993). As the WQBA court noted, if the plaintiff/subrogor has no rights against the third party, the subrogee has nothing to inherit. 731 So.2d at 647. In effect, Prime's assignment of its equitable subrogation rights against Complete to Welch merely assigned Welch's own non-existent rights back to him. The circuit court correctly dismissed Welch's claim, as Prime's assignee, for equitable subrogation.
To succeed on a claim of common law indemnity, Welch must show (1) that Prime was without fault; and (2) that Prime's liability for Welch's damages was vicarious and solely based on the wrong of Complete. See Id. at 642; Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979); Dominion of Can. Ins. Co. v. State Farm Fire & Cas. Co., 754 So.2d 852, 855 (Fla. 2d DCA 2000). We will address the issue of Prime's fault in our discussion of the claim for contractual indemnification. We need not discuss it here because the record does not show any legal relationship between Prime and Complete which would render Prime vicariously, constructively, derivatively, or technically liable to Welch because of some negligence or fault on Complete's part. See Marino v. Weiner, 415 So.2d 149, 150 (Fla. 4th DCA 1982).
As cogently explained in Bovis v. 7-Eleven, Inc., 505 So.2d 661 (Fla. 5th DCA 1987), a property owner does not insure the safety of persons on his property; he is not strictly liable or liable per se for injuries resulting from a dangerous condition existing on the property. This is because premises liability is not predicated on ownership of the property, but on the failure of the possessor of the property to use due care. Id. at 662-63. The duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property. This right is usually in the hands of the tenant, who is in possession and control. Id. at 664. Thus, if a lessor completely surrenders possession and control of a premises to a lessee, the lessor will not be liable for injuries to third persons that occur on the property. Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 14 (Fla. 1st DCA 1996), approved on other grounds sub nom Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla. 1998).
This record establishes that Complete was in possession and control of the rented storage space. An employee of Complete directed Welch to attempt to open the jammed garage door, which resulted in his injuries. Because Prime was not in possession or control of the property, it was not vicariously liable for Welch's injuries. Absent vicarious liability, Prime, and Welch as its assignee, had no action for common law indemnity against Complete. Houdaille, 374 So.2d at 493; Marino, 415 So.2d at 151. The circuit court correctly dismissed this count of Welch's complaint.1
Welch, as Prime's assignee, sued Complete for contractual indemnification based on two clauses in the lease agreement between Complete and Prime:
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