HOWARD JOHNSON COMPANY, APPELLANT,
v.
ORLANDO EXECUTIVE PARK, INC., ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This case involves an appeal from a summary judgment that denied indemnity. The appellate court reversed the summary judgment, finding that the lower court prematurely decided the issue of indemnity without first determining the appellant's fault in the underlying injury.
No, the summary judgment was improper. The court must first determine if the appellant shared in the fault for the injuries; if not, and liability was solely vicarious, then indemnity is appropriate.
[1] A party held liable solely on a theory of vicarious liability as an apparent principal may be entitled to indemnification from the apparent agent.
[2] A determination of the principal's own fault is a prerequisite to denying indemnification to a principal held liable under an apparent agency theory.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The pleadings, instructions, general verdict and judgment at the liability trial do not indicate any active negligence, or fault, on the part of appellant; only that it is liable passively as the apparent principal of appellee.”
Establishes that the prior judgment was based on vicarious liability, not active fault of the appellant.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant and appellee were both found liable to a plaintiff for injuries in a prior trial. Appellant was held liable on a theory of vicarious liabili…
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DAUKSCH, Judge.
This is an appeal from a summary judgment denying indemnity from appellee to appellant. This case arises out of Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. 5th DCA 1981), aff'd. Orlando Executive Park, Inc. v. Robbins, 433 So. 2d 491 (Fla.1983), where both appellant and appellee had a judgment entered against them after a general verdict form found both to be liable to the plaintiff for injuries.
This court’s opinion in Orlando Executive Park at page 449 sets out the basis upon which appellant was found liable. Appellant was the apparent principal of its apparent agent, appellee, and was thus liable to the plaintiff on a vicarious liability theory. The pleadings, instructions, general verdict and judgment at the liability trial do not indicate any active negligence, or fault, on the part of appellant; only that it is liable passively as the apparent principal of appellee. The plaintiff in the liability trial chose her theory of liability against appellant but that does not establish as a matter of fact or law that Howard Johnson Company was free from fault or at fault in regard to the injuries suffered by the plaintiff. Indemnity is not a compulsory cross-claim so neither appellant nor appellee were required to have the matter of respective fault between the two of them litigated at the first trial. This being so, the court was precipitous in entering summary judgment. It must first be decided whether appellant was at fault in causing the injuries to the plaintiff. If so, then appellant cannot receive indemnification from appel-lee. If appellant did not share in the fault, was not actively negligent, but was held liable only because of the apparent agency then appellant is entitled to be indemnified by appellee. See Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla.1979).
The summary judgment is reversed and this cause remanded for a determination of the issue of fault, vel non, of appellant.
REVERSED and REMANDED.
ORFINGER and COBB, JJ., concur.
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Citator
Cited By
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Fla. Power & Light Co. v. Allis-Chalmers Corp., 752 F. Supp. 434 (S.D. Fla. 1990)
Authorities Cited
- Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)
- Orlando Executive Park, Inc. v. Robbins, 433 So. 2d 491 (Fla. 1983)
- Bell v. State, 402 So. 2d 442 (Fla. 3d DCA 1981)
- Orlando Executive Park, Inc. v. P. D. R., 402 So. 2d 442 (Fla. 5th DCA 1981)