EWELL ENGINEERING & CONTRACTING COMPANY ET AL., APPELLANTS,
v.
TAM FINLEY CATO ET AL., APPELLEES
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Florida appellate court reversed dismissal of third-party complaint, holding that third-party plaintiffs may proceed under established procedures without waiting for speculative apportionment remedies.
A third-party plaintiff need not base its defense on a speculative remedy not yet judicially recognized when an established procedure is presently available.
[1] Third-party plaintiffs may proceed under established procedural mechanisms without awaiting judicial recognition of alternative remedies such as comparative fault apporti…
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Join FLexlaw to unlock all legal intelligence“the third party plaintiff be required to base his defense on a speculative remedy which has not yet received judicial recognition when there is a procedure presently available”
Court explaining why third-party plaintiffs should not be forced to wait for new apportionment procedures when existing procedures are available.
Third-party plaintiffs filed a complaint against third-party defendants, which was dismissed with prejudice by the lower court.…
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MAGER, Judge.
This is an appeal by the third party plaintiffs, appellants herein, from an order entered in favor of the third party defendants, appellees herein, dismissing with prejudice the third party plaintiffs’ complaint.
We reverse upon the authority of Stuart v. Hertz Corporation, Fla.App.1974, 302 So. 2d 187, which decision had not as yet been rendered at the time the lower court entered the order under review. See also Travelers Indemnity Co. v. Trowbridge, Ohio 1975, 41 Ohio St.2d 11, 321 N.E. 2d 787. While it may well be that the decision in Hoffman v. Jones, Fla.1973, 280 So. 2d 431, permits an apportionment of fault between negligent parties (defendants) and that such an apportionment would provide a fairer and more equitable remedy than the third party procedures utilized herein, nevertheless the matter of apportionment is not involved in this proceeding; nor should the third party plaintiff be required to base his defense on a speculative remedy which has not yet received judicial recognition when there is a procedure presently available as indicated in Stuart v. Hertz Corporation, supra.
Accordingly, the order of dismissal is vacated and set aside and the cause remanded for further proceedings consistent herewith.
OWEN, C. J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Haendel v. Paterno, 388 So. 2d 235 (Fla. 5th DCA 1980)…. Punitive damages are generally not recoverable for breach of contract unless there are proper allegations and proof of intentional wrong, insult, abuse or gross negligence constituting an independent tort. Country Club of Miami Corp. v. McDaniel, 310 So. 2d 437 (Fla. 3d DCA 1975). The act which constitutes the tort must have been willfully and wantonly committed or attended by fraud, malice or gross negligence. Charter Air Ctr., Inc. v. Miller, 348 So. 2d 614 (Fla. 2d DCA 1977). Haéndel, alleging fraud in…
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Ewell Eng'g & Contracting Co. v. Tam Finley Cato and Emma Boyd Cato, 361 So. 2d 728 (Fla. 4th DCA 1978)…tionment of damages from Farrar and Schering. The trial court dismissed the third party complaint with prejudice for failure to state a cause of action. On appeal this Court reversed the trial court, Ewell Engineering & Contracting Company v. Cato, 310 So. 2d 437 (Fla. 4th DCA 1975), upon authority of our then recent decision in Stuart v. Hertz Corporation, 302 So. 2d 187 (Fla. 4th DCA 1974). The Supreme Court of Florida in Stuart v. Hertz Corporation, 351 So. 2d 703 (Fla.1977), quashed our Hertz decision.…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Frank M. Stuart, M.D., P.A. v. The HERTZ Corp., 302 So. 2d 187 (Fla. 4th DCA 1974)