TRAVELERS INSURANCE COMPANY AND MATTHEWS CONSTRUCTION COMPANY, APPELLANTS,
v.
AUDIE L. BALLINGER AND DENNIS BALLINGER, HER HUSBAND, APPELLEES
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Travelers Insurance and Matthews Construction appealed an interlocutory order striking their comparative negligence defense. The appellate court, treating the interlocutory appeal as a petition for common law certiorari, held that comparative negligence cannot be applied between a defendant and a non-party tortfeasor, and therefore affirmed the trial court's order striking the defense.
A defendant cannot assert a comparative negligence defense against a plaintiff based on the negligence of non-party tortfeasors. The comparative negligence rule applies only between the plaintiff and defendant parties to the suit and does not permit contribution or apportionment between a defendant and non-party tortfeasors.
[1] An interlocutory appeal is not a proper vehicle to review an order unless it falls within a specifically enumerated category for interlocutory review.
[2] A notice of interlocutory appeal may be treated as a petition for common law certiorari when the appellate court lacks jurisdiction for interlocutory review but the issue…
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Join FLexlaw to unlock all legal intelligence“The comparative negligence rule is not applicable between defendant joint tortfeasors”
Establishes that comparative negligence cannot be used among multiple tortfeasors on the defendant side
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn February 20, 1973, Audie Ballinger, a passenger in an automobile driven by her daughter and owned by her husband, was injured when a dump truck own…
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MILLS, Judge.
This is an appeal from an interlocutory order in an action at law. As an interlocutory appeal, it does not fit any of the categories for review of an interlocutory order under Rule 4.2, Florida Appellate Rules. We, therefore, have no jurisdiction to review it on interlocutory appeal. However, we will consider the notice of interlocutory appeal as a petition for common law certiorari and rule on the issue raised by appellant as it is of importance under the comparative negligence doctrine.
On 20 February 1973, Audie L. Ballin-ger, a passenger in an automobile owned by her husband and driven by her daughter, suffered personal injuries when a dump truck owned by Matthews Construction Company was driven into the rear of an automobile stopped behind the stopped Ballinger automobile, propelling it into the rear of the Ballinger automobile.
Mrs. Ballinger and her husband filed this action against Matthews Construction Company and its insurer. As a defense, Matthews Construction Company asserted that Mrs. Ballinger’s injuries and damages were caused or negligently contributed to by the negligence of her daughter and the. driver of the automobile propelled into the rear of the automobile occupied by her, or one of them, and Matthews Construction Company’s liability, if any, is limited solely to the injuries and damages negligently caused by it. The trial court granted the Ballinger’s motion to strike this defense on the ground that it failed to state a legal defense. Matthews Construction Company seeks review of this order. Generally, there is no contribution among joint tortfeasors and the Supreme Court of Florida in Hoffman v. Jones, 280 So. 2d 431 (Fla.1973), recognized this rule and declined to abrogate it. Rader, et al. v. Variety Children’s Hospital, et al., 293 So. 2d 778 (Fla.App.1974).
The comparative negligence rule is not applicable between defendant joint tortfeasors, Issen v. Lincenberg, 293 So. 2d 777 (Fla.App.1974). The rule is applied only in an action where negligence of plaintiff and of defendant has contributed to the cause of plaintiff’s injury and damage. Hoffman v. Jones, supra; Issen v. Lincenberg, supra. The rule’s application is limited to the parties of a suit. Hoffman v. Jones, supra.
There can be no contribution or apportionment between a defendant and a non-party tortfeasor. Gutierrez v. Murdock, 300 So. 2d 689 (Fla.App.1974). The jury must first determine the negligence of the plaintiff and of the defendant as related to each other and then apportion the damages.
Certiorari denied.
McCORD, J., concurs.
BOYER, Acting C. J., concurs specially.
BOYER, Acting Chief Judge
(specially concurring).
I agree that application of the holdings of the cases cited in the above opinion requires affirmance. A literal interpretation of that portion of Hoffman v. Jones which is quoted in Gutierrez v. Murdock permits no other conclusion. However, it is apparent that a consistent application of that holding will often lead to inequitable and unjust results, the avoidance of which was the fundamental reason for abrogation of the old contributory negligence doctrine. Accordingly, with great trepidation and extensive reservations, in keeping with the time honored doctrine of stare decisis, until such time as the Supreme Court of Florida shall have ruled on the issues squarely presented, I concur.
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Citator
Cited By
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Nuby Shealy v. Clark Constr. Co. OF Ocala, Inc., 323 So. 2d 11 (Fla. 1st DCA 1975)…pay the Rountrees. The law as it existed when the matter was before the lower court- permitted neither contribution among joint tortfeasors nor proportionate allocation of plaintiffs’ damages between the defendants. Travelers Ins. Co. v. Bal-linger, 312 So. 2d 249 (Fla.App. 1st, 1975). The trial court’s “final summary judgment” was entered in November 1974, several months before the Supreme Court’s decision in Lincenberg v. Issen, 318 So. 2d 386 (opinion filed July 30, 1975, rehearing denied October 8, 1975)…
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Blocker v. Wynn, 425 So. 2d 166 (Fla. 1st DCA 1983)…So. 2d 59 (Fla. 3rd DCA 1975), cert. den. 327 So. 2d 34 (Fla.1976); Souto v. Segal, 302 So. 2d 465 (Fla. 3rd DCA 1974); Echeverria v. Barczak, 308 So. 2d 633 (Fla. 3rd DCA 1975), cert. den. 321 So. 2d 558 (Fla.1975); Travelers Ins. Co. v. Ballinger, 312 So. 2d 249 (Fla. 1st DCA 1975); and Davis v. Lewis, 331 So. 2d 320 (Fla. 1st DCA 1976), cert. den. 348 So. 2d 946 (Fla.1977). They urge, however, that no Florida case has yet addressed the issue presented here, that is, the rights of a third party tortfeasor v…
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Stowell v. TED S. Finkel Inv. Servs., Inc., 641 F.2d 323 (5th Cir. 1981)…has discharged a common liability or burden. 18 C. J. S. Contribution § 1 page 2, and generally there is no contribution between joint tortfeasors, Hoffman v. Jones, (Fla.1973) 280 So. 2d 431, and Travelers Insurance Co. v. Ballinger, (Fla.App.1975) 312 So. 2d 249.3 Insofar as contribution is allowable under the exceptions, the right exists only where both parties are at fault and are under a common liability and where one has violated a duty which he owes to the other, 18 C. J. S. Contribution § 3 page 6, an…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Issen v. Lincenberg, 293 So. 2d 777 (Fla. 3d DCA 1974)
- Luke Rader, M.D. v. Variety Child's. Hosp., 293 So. 2d 778 (Fla. 3d DCA 1974)
- Aurelio Gutierrez and Francisca Gutierrez v. Orval H. Murdock, 300 So. 2d 689 (Fla. 3d DCA 1974)