JEROME NAGELBUSH, INC., APPELLANT,
v.
FRANK J. ROONEY, INC., APPELLEE
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This case concerns the premature entry of summary judgment on an indemnity claim by a general contractor against its plumbing subcontractor before the general contractor itself faced judgment in the underlying construction defect action. The appellate court reversed the summary judgment, holding that judgment against an indemnitor cannot be entered before judgment or settlement in the main action.
Summary judgment against the indemnitor (subcontractor) is premature when entered before judgment against the general contractor in the main action or a settlement and discharge by payment. The crossclaim for indemnity may be filed early to avoid multiplicity of suits, but judgment on it must await resolution of the primary action.
[1] A claim for indemnity may be filed prior to a judgment against the party seeking indemnity, to avoid a multiplicity of actions.
[2] Entry of a summary judgment on a claim for indemnity against the indemnitor is premature before a judgment is rendered against the indemnitee in the main action, or a set…
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Join FLexlaw to unlock all legal intelligence“entry of judgment against the Third-Party defendant on the claim of indemnity, prior to a judgment against the general contractor in the main action, or a settlement and discharge of the action by payment by the contractor, was premature”
States the core holding that indemnity judgments cannot be entered before the main action is resolved
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Join FLexlaw to unlock all legal intelligenceHollywood Fashion Center owners contracted with Frank J. Rooney, Inc. (general contractor) to construct shopping center improvements. Rooney subcontra…
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CHARLES CARROLL (Ret.), Associate Judge.
Certain persons doing business as Hollywood Fashion Center, as owners, entered into a written contract with Frank J. Rooney, Inc., as a general contractor, for the construction of improvements in a shopping center. Rooney entered into a sub-contract with Jerome Nagelbush, Inc., for performance of the plumbing work called for in the construction contract.
Subsequently the owners filed action against Rooney for damages for breach of contract, alleging as basis therefor that Rooney “failed to install the plumbing at the ‘Walgreen Store’ as set forth and required in said plans and specifications”, and alleging that by reason thereof plaintiff had suffered loss through expense incurred in correcting such defective plumbing installation. In a second count damages were sought, on the same facts, for alleged negligence.
Rooney answered admitting the contract and denying the allegations of improper performance. The answer averred the plumbing installation was done in a workmanlike manner and according to specifications, to the satisfaction of the architect; and pleaded that contributory negligence of the plaintiff proximately caused any plumbing deficiencies.
Separately the defendant Rooney filed a crossclaim against its plumbing sub-contractor, Nagelbush, for indemnity. Therein Rooney alleged the sub-contract, referred to the claims asserted by the plaintiff and alleged that in event Rooney should be held liable to plaintiffs under their contract, despite Rooney’s answer thereto, “then the Third-Party defendant is liable to Rooney for the sum to which Rooney may be held liable to plaintiffs”. Nagelbush answered the Third-Party complaint for indemnity, denying liability.
Rooney moved for and was granted summary judgment against Nagelbush. The judgment entered was a partial summary judgment on liability, in favor of Rooney against Nagelbush as indemnitor of Rooney. Nagelbush filed this interlocutory appeal therefrom.
We pretermit discussion of the arguments of the parties as to whether there were genuine triable issues of fact precluding the entry of the summary judgment because we hold that entry of judgment against the Third-Party defendant on the claim of indemnity, prior to a judgment against the general contractor in the main action, or a settlement and discharge of the action by payment by the contractor, was premature.
By virtue of the wording of Fla.R. Civ.P. 1.170(g), the filing of the crossclaim or complaint for indemnity at that stage of the proceedings was not premature, as a means of avoiding a multiplicity of actions and in order that the entire subject matter arising from the one set of facts may be disposed of in one action, but the entry of judgment against the indemnitor at that stage of the main action was premature, under the authority of Chappell v. Scarborough, 224 So. 2d 791 (Fla.1st D.C.A.1969), and Mims Crane Service, Inc., v. Insley Mfg. Corp., 226 So. 2d 836 (Fla.2d D.C.A. 1969).
For the reason stated, the summary judgment is reversed, without prejudice to and subject to further proceedings on the merits of the crossclaim of Rooney against Nagel-bush for indemnity, following judgment, if any rendered in favor of the plaintiff against the defendant contractor. It is so ordered.
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Dade Cnty. Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638 (Fla. 1999)…tive Servs., Inc., 660 So. 2d 772, 773-74 (Fla. 4th DCA 1995) (holding that a summary judgment was entered prematurely in an indemnity cross-claim when liability had not yet been determined); see also Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121, 122 (Fla. 3d DCA 1977); Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So. 2d 836, 842 (Fla. 2d DCA 1969). Therefore, we remand this case for further proceedings on this issue. EQUITABLE SUBROGATION Depending on the outcome of the contractual i…
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Flagship Nat'l Bank v. Gray Distrib. Sys., Inc., 485 So. 2d 1336 (Fla. 3d DCA 1986)…ruling the fact that Flagship controlled Gray's funds. Flagship contends that until Gray actually pays its outstanding obligations, any judgment ordering indemnification is premature. We disagree. In Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121 (Fla. 3d DCA 1977), this court referred to entry of judgment, not payment, as a prerequisite for indemnification. We are unable to determine from the record before us whether an indemnification award against Flagship for Gray's IRS penalty obligatio…
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Ogur v. Mollie Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980)…horized an interlocutory appeal from a partial summary judgment on the issue of liability without regard to whether the issue was decided “in favor of a party seeking affirmative relief,” see, e. g., Jerome Naglebusch, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121 (Fla. 3d DCA 1977). Appeal dismissed. . Liberty Mutual Insurance Company, which insured the operator, was to be primarily liable to the extent of its coverage of $50,000; Colonial Penn Insurance Company, which insured the lessee, was to be seco…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So. 2d 836 (Fla. 2d DCA 1969)
- William v. Chappell, Jr., 224 So. 2d 791 (Fla. 1st DCA 1969)