CHINOS VILLAS, INC., APPELLANT,
v.
ANTONIO BERMUDEZ AND FLOR DE MARIA BERMUDEZ, INDIVIDUALLY, APPELLEES
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Chinos Villas, Inc. appealed the trial court's dismissal of its counterclaim for contribution against the parents of a child who drowned at the defendant's facility. The court held that under Florida's Uniform Contribution Among Tortfeasors Act, a defendant may file a permissive counterclaim for contribution against negligent parents in the same action, reversing the trial court's order that would have required the defendant to pursue contribution in a separate suit.
A defendant tortfeasor may file a permissive counterclaim for contribution against parents whose negligent supervision contributes to causing injuries to their minor child within the same action. The trial court cannot dictate that contribution claims must be brought separately; the Uniform Contribution Among Tortfeasors Act permits counterclaims for contribution in a single proceeding.
[1] A counterclaim for contribution is permissible against parents whose negligent supervision contributed to their child's injury.
[2] A trial court's dismissal of a counterclaim for contribution without leave to amend is an appealable order.
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“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 supervision and control contributes to causing injuries to their minor child.”
Establishes that contribution actions against negligent parents are legally available under Florida law.
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Join FLexlaw to unlock all legal intelligenceThe parents of Pablo Bermudez, a four-year-old, sued Chinos Villas, Inc. alleging the facility negligently failed to provide lifesaving apparatus and …
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LESTER, M. IGNATIUS, Associate Judge.
This is an appeal by the defendant seeking review of an order of the trial court dismissing the counterclaim for contribution without leave to amend.
This action was commenced by the parents of Pablo Bermudez, both in their individual and representative capacity, against the defendant, Chinos Villas, Inc., alleging the defendants failed to provide lifesaving apparatus and other emergency assistance, which negligence caused or contributed to causing the drowning death of their four-year-old son. Defendant counterclaimed against the deceased’s parents in their individual capacity, seeking contribution predicated by the parents’ alleged negligent failure to properly supervise, control and protect their minor son, which negligence either caused or contributed to causing the drowning death of the child. The parents moved to dismiss the counterclaim on the grounds that section 768.31, Florida Statutes (1981) does not permit a counterclaim for contribution and defendant does not have the right to contribution pursuant to said statute. The trial court granted plaintiffs’ motion to dismiss without leave to amend, but without prejudice to assert the same claim in a separate and 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 appealable 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 supervision and control contributes to causing injuries to their minor child.
The only question which now needs to be addressed by this court is whether the trial court can dictate the time and manner in which contribution can be pursued. The Uniform Contribution Among Tortfeasors Act, § 768.31, allows the defendant to file a permissive counterclaim for contribution. See Ryder Truck Lines, Inc. v. Pough. The policy expressed by our supreme court many times to encourage litigants to file permissive counterclaims has been set forth in Wincast Associates, Inc. v. Hickey, 342 So. 2d 77 (Fla.1977). The most orderly and logical manner in which necessary “common liability” can be established should be in a single action, which is amply set forth in the opinion in New Hampshire Insurance Co. v. Petrik, 343 So. 2d 48 (Fla. 1st DCA 1977):
The logic is recognized that to allow such a procedure efficiently conserves the court’s time, effort, expense, and provides consistency of result wherein the action which establishes the plaintiff’s right to recovery also establishes against whom that recovery should be made.
343 So. 2d at 50.
We reverse the trial court order dismissing the defendant’s counterclaim and the cause is remanded to the trial court with directions to permit the maintenance of both the affirmative defense of the parents’ comparative negligence and the counterclaim for contribution in the present action. See Joseph v. Quest; Wincast Associates, Inc. v. Hickey; New Hampshire Insurance Co. v. Petrik.
Reversed and remanded.
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Citator
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Campbell v. Gordon, 674 So. 2d 783 (Fla. 1st DCA 1996)…” Fla. R.Civ.P. 1.170(b). A partial final judgment adjudicating a permissive counterclaim is, therefore, ordinarily appealable. Sarasota Cloth Fabric & Foam, Inc. v. Benes, 482 So. 2d 574 (Fla. 5th DCA 1986); Chinos Vil [*786] las, Inc. v. Bermudez, 448 So. 2d 1179 (Fla. 3d DCA 1984). Here the counterclaim states four counts. Both counts one and two of the counterclaim state claims altogether separate, distinct, and independent from the partition proceeding. These first two counts allege debts Mr. Campbell as…
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Hudson v. Moss, 653 So. 2d 1071 (Fla. 3d DCA 1995)…are therefore reversed, and this case is remanded for the entry of new judgments consistent with this opinion.1 Affirmed in part, reversed in part, and remanded with directions. . Nothing in this court’s opinion in Chinos Villas, Inc. v. Bermudez, 448 So. 2d 1179 (Fla. 3d DCA 1984), requires otherwise. Insurance was apparently available in Chinos Villas, thus precluding that panel from considering the issue now presented herein.…
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Int'l Action Sports, Inc. v. Sabellico, 573 So. 2d 928 (Fla. 3d DCA 1991)…ongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. . See Johnson v. School Bd. of Palm Beach County, 537 So. 2d 685 (Fla. 4th DCA 1989); Chinos Villas, Inc. v. Bermudez, 448 So. 2d 1179 (Fla. 3d DCA 1984); Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1981), quashed in part, 414 So. 2d 1063 (Fla.1982); Alves v. Adler Built Industs., 366 So. 2d 802 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979). . This direct case again…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Joseph v. Quest, 414 So. 2d 1063 (Fla. 1982)
- NEW Hampshire Ins. Co. v. Petrik, 343 So. 2d 48 (Fla. 1st DCA 1977)
- Gertrude S. Zullo v. Zullo, 342 So. 2d 77 (Fla. 1977)
- Ryder Truck Lines, Inc. v. Pough, 392 So. 2d 590 (Fla. 3d DCA 1981)