RYDER TRUCK LINES, INC., SCOTTISH AND YORK INTERNATIONAL INSURANCE GROUP AND MORRIS DANIEL FARMER, APPELLANTS,
v.
SADIE POUGH AND ORBIT POUGH, APPELLEES
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Ryder Truck Lines and its insurer appealed the dismissal of their counterclaim for contribution against the Poughs under Florida's Uniform Contribution Among Tortfeasors Act. The court reversed the dismissal, holding that contribution counterclaims are appealable as permissive rather than compulsory counterclaims, and that the trial court erred in relying on a precedent the court had since overruled.
The court held that the contribution counterclaim is appealable because it should be treated as a permissive rather than a compulsory counterclaim. Under Section 768.31(4), Florida Statutes, a judgment for contribution may be maintained by separate action, which grants the legislature's intended latitude and flexibility, making the counterclaim permissive and therefore appealable despite the interrelationship with the original claim.
[1] A dismissal of a counterclaim is immediately appealable if the counterclaim is permissive.
[2] A claim for contribution under the Uniform Contribution Among Tortfeasors Act is treated as a permissive counterclaim for purposes of appeal.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under Section 768.31(4), Florida Statutes (1977), a judgment for contribution may be maintained whether or not the judgment has been entered in any action against two or more tortfeasors or by separate action. Because the Legislature has allowed such latitude and flexibility, we treat the counterclaim as though it were a permissive counterclaim and therefore appealable.”
Establishes the court's holding that the contribution counterclaim is permissive and appealable based on statutory authorization for separate contribution actions.
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Join FLexlaw to unlock all legal intelligenceThe Poughs filed suit for personal injuries when their vehicle collided with a vehicle owned by Ryder and operated by Ryder employee Morris Daniel Far…
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NESBITT, Judge.
This is an appeal from an order granting plaintiff/counterdefendants’ motion to dismiss an amended counterclaim. We reverse.
The action was commenced by Orbit and Sadie Pough for personal injuries sustained by them and their children when a vehicle operated by Orbit Pough and owned by his wife, Sadie, collided with a vehicle owned by defendant Ryder, operated by defendant Farmer, and insured by defendant Scottish and York International Insurance Group. Defendants filed a general denial and counterclaim against the plaintiffs for contribution under the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1977). On motion by the Poughs, the amended counterclaim seeking contribution was dismissed on authority of 3-M Electric Corporation v. Vigoa, 369 So. 2d 405 (Fla.3d DCA 1979). The original claim of the Poughs is still pending.
Therefore, the threshold question, which must be addressed, is whether defendants may appeal the dismissal of their amended counterclaim at this juncture of the case. The right to contribution arose out of the same transaction or occurrence and therefore might, at first blush, appear to be a compulsory counterclaim under Florida Rule of Civil Procedure 1.170(a).
It has been uniformly held that, because of the interrelationship between an original claim and a compulsory counterclaim, no appeal could be taken from either until the final disposition of both the claim and the counterclaim. Taussig v. Insurance Company of North America, 301 So. 2d 21 (Fla.2d DCA 1974); Midstate Hauling Company v. Liberty Mutual Insurance Company, 189 So. 2d 826 (Fla.4th DCA 1966); Bumby & Stimpson, Inc. v. Peninsula Utilities Corporation, 179 So. 2d 414 (Fla.3d DCA 1965).
Under Section 768.31(4), Florida Statutes (1977), a judgment for contribution may be maintained whether ór not the judgment has been entered in any action against two or more tortfeasors or by separate action. Because the Legislature has allowed such latitude and flexibility, we treat the counterclaim as though it were a permissive counterclaim and therefore appealable. Taussig v. Insurance Company of North America, supra. Consequently, we treat this petition for common law certiorari as a plenary appeal. Fla.R.App.P. 9.040(c).
The trial court dismissed the amended counterclaim on authority of 3-M Electric Corporation v. Vigoa, supra. This court, having receded from that decision in Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1981) (en banc) and, for the reasons and authorities stated in Quest v. Joseph, the order of the trial court is reversed and remanded with instructions to reinstate the amended counterclaim.
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del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987)…f intricate appellate law. See Mendez v. West Flagler Family Ass'n, 303 So. 2d 1 (Fla.1974); Rob-Cor, Inc. v. Ines, 512 So. 2d 320 (Fla. 3d DCA 1987); Fla.R.App.P. 9.110(k) (disposition of less than all counts of action); Ryder Truck Lines v. Pough, 392 So. 2d 590 (Fla. 3d DCA 1981) (proper treatment of compulsory and permissive counterclaims). . As we have seen, the conclusion of a case as to a particular party or parties itself constitutes a final judgment. . Even when execution does not issue, a pre-fi-n…
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Northcutt v. Pathway Fin., 555 So. 2d 368 (Fla. 3d DCA 1989)….1974)); Rob-Cor, Inc. v. Ines, 512 So. 2d 320, 321-22 (Fla. 3d DCA 1987); Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315, 320 (Fla. 3d DCA 1987); Dennis v. Pavlakos, 464 So. 2d 1323, 1324 (Fla. 5th DCA 1985); Ryder Truck Lines, Inc. v. Pough, 392 So. 2d 590, 591 (Fla. 3d DCA 1981). The order under review is therefore a non-final, nonappealable order as to that count. We conclude the counterclaim for fraud in the inducement is likewise a compulsory counterclaim and not a distinct or severable cause of…
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Chinos Villas, Inc. v. Bermudez, 448 So. 2d 1179 (Fla. 3d DCA 1984)…d subsequent suit. The threshold question raised in this appeal, which must be addressed is whether the order dismissing defendant’s counterclaim for contribution is a final appeala-ble order. We have jurisdiction. Ryder Truck Lines, Inc. v. Pough, 392 So. 2d 590 (Fla. 3d DCA 1981). It is now well settled, after the supreme court’s decision in Joseph v. Quest, 414 So. 2d 1063 (Fla.1982), that an action for contribution is available to a third party tortfeasor against parents whose neglect in parental superv…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1980)
- Taussig v. Ins. Co. OF N. Am., 301 So. 2d 21 (Fla. 2d DCA 1974)
- Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So. 2d 414 (Fla. 3d DCA 1965)
- 3-M Elec. Corp. v. Vigoa, 369 So. 2d 405 (Fla. 3d DCA 1979)
- Midstate Hauling Co., Inc. v. Liberty Mut. Ins. Co., 189 So. 2d 826 (Fla. 4th DCA 1966)