ROBERT S. OLNICK, SYLVIA OLNICK, LEONARD STEINER, LEONARD BOXER, INDIVIDUALLY AND AS GENERAL PARTNERS, D/B/A FAIRWAYS OF INVERRARY ASSOCIATES, APPELLANTS,
v.
ROBERT MYERS PAINTING, INC., SNEAD CONSTRUCTION CORPORATION, LAWRENCE-IRWIN CHARTERED ARCHITECTS AND THE STUYVESANT INSURANCE COMPANY, APPELLEES

Fla. 4th DCA | 1980-06-04
No. 78-1989
ANSTEAD and HERSEY, JJ„ and OSEE R. FAGAN, Associate Judge, concur.
384 So. 2d 54 Florida District Court of Appeal, Fourth District (1980) Positive Treatment
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Holding

A third-party complaint for indemnity is sufficient if it alleges facts showing the defendant's liability is solely vicarious, constructive, derivative, or technical, based on the actual wrongdoing of another.


Facts & Procedural History

Appellant sued, seeking indemnity from appellees. The trial court granted summary judgment for the appellees, finding the third-party complaint insuff…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We reverse the Summary Final Judgment rendered in favor of third-party defendants, appellees here.

In order for appellant to prevail on his indemnity claim the pleadings must allege and the proof must support the fact that appellant’s liability, if any, would be solely vicarious, constructive, derivative, or technical, and based upon the actual wrongdoing or breach of contract of appellees. Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla.1979).

It seems to us the appellee’s position, simplistically stated, is that the allegations in the third-party complaint are insufficient to state a cause of action for indemnity. However, as indicated in Stuart v. Hertz Corporation, 351 So. 2d 703 (Fla.1977):

The test of whether allegations stating a cause of action in indemnity are sufficient should not be determined on a Motion for Summary Judgment.

Finally, the record discloses the existence of genuine issues of fact which must, of necessity, be addressed on the merits and not in summary fashion.

For the foregoing reasons we reverse the Summary Final Judgment and remand for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ„ and OSEE R. FAGAN, Associate Judge, concur.


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