THE ESTATE OF JAMES F. COVINGTON, JR., DECEASED, APPELLANT,
v.
LEONDRES PRYON YOUNG, ET UX., ET AL., APPELLEES
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The appellate court reversed a summary judgment granted to third-party plaintiffs before their own liability was established. The court held that entering judgment on an indemnity claim prematurely, before the main claim's outcome was determined, was an error.
Yes, the trial court erred. The entry of judgment against Covington on the indemnity claim prior to any finding of liability in favor of the plaintiff on the main claim constitutes premature action.
[1] A trial court commits premature action by entering judgment on an indemnity claim prior to a determination of liability in the main action.
[2] A remand is proper even if the third-party plaintiff has not suffered damages, as they may be able to allege recoverable damages.
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Join FLexlaw to unlock all legal intelligence“The entry of judgment against Covington on the claim of indemnity, prior to any finding of liability in favor of the plaintiff on the main claim, constitutes premature action on the part of the trial court.”
Establishes the core legal error identified by the court.
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Join FLexlaw to unlock all legal intelligenceThe Youngs sued the Stills in a foreclosure action. The Stills then filed a third-party complaint for indemnification against the Estate of James F. C…
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COBB, Judge.
This cause began as a foreclosure action brought by Leondres Pryon Young and Judith Eloise Young (the Youngs) against the appellees, Wilfred F. Still and Jacqueline H. Still (the Stills). While the suit was pending the Stills filed a third-party complaint for indemnification against appellant, The Estate of James F. Covington, Jr., and Flagship Bank. The trial court granted summary judgment for the Stills on the issue of liability on the indemnity claim prior to any determination that the Stills were liable in the main foreclosure proceeding. The entry of judgment against Covington on the claim of indemnity, prior to any finding of liability in favor of the plaintiff on the main claim, constitutes premature action on the part of the trial court. See Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121 (Fla. 3d DCA 1977); see also Mitsubishi International Corp. v. Zayre Corp., 479 So. 2d 877 (Fla. 3d DCA 1985); Maple Chair Company v. W.S. Badcock Corp., 385 So. 2d 1036 (Fla. 1st DCA 1980).
Accordingly, the order entered below is reversed without prejudice and subject to further proceedings pending the out come of the main claim.1
REVERSED and REMANDED.
SHARP, C.J., and DANIEL, J., concur. . Covington has filed a notice indicating that the estate has settled the underlying foreclosure action with the Youngs, resulting in a voluntary dismissal with prejudice of the foreclosure action. While the Stills have apparently not suffered any damages in the settlement of the claim, a remand is proper, since they may be able to allege recoverable damages below. Among the damages properly recoverable are attorney’s fees incurred in the defense of the claim indemnified against; however, it should be noted that attorney’s fees incurred in establishing the right to indemnification are not recoverable. United States Automobile Association v. Hartford Insurance Company, 468 So. 2d 545, 548 (Fla. 5th DCA), petition for review denied, 476 So. 2d 676 (Fla.1985); see also Snider v. Continental Insurance Company, 519 So. 2d 12 (Fla. 5th DCA 1987).
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Amisub OF Fla., Inc. v. Derrell O. Billington, D.O., 560 So. 2d 1271 (Fla. 3d DCA 1990)…the manufacturer was at fault. We know of no theory upon which it can be said that a manufacturer has a duty, absent an express contract, to insulate its retailers from unproven claims of dissatisfied customers. Accord Estate of Covington v. Young, 521 So. 2d 360 (Fla. 5th DCA 1988); see also Mitsubishi Int’l Corp. v. Zayre Corp., 479 So. 2d 877 (Fla.3d DCA 1985). In the precise situation presented here, moreover, the cases elsewhere almost unanimously provide that, as the lower court held, there is no indem…
Authorities Cited
- Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121 (Fla. 3d DCA 1977)
- United States Auto. Ass'n v. The Hartford Ins. Co., 468 So. 2d 545 (Fla. 5th DCA 1985)
- Maple Chair Co. v. W. S. Badcock Corp., 385 So. 2d 1036 (Fla. 1st DCA 1980)
- Mitsubishi Int'l Corp. v. Zayre Corp., 479 So. 2d 877 (Fla. 3d DCA 1985)
- Snider v. Cont'l Ins. Co., 519 So. 2d 12 (Fla. 5th DCA 1987)