ROBERT LEGGIERE, APPELLANT,
v.
MERRILL LYNCH REALTY/FLORIDA, INC., A FLORIDA CORPORATION D/B/A RODGERS & CUMMINGS REALTY, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this third-party complaint case, the Florida appellate court upheld the dismissal of Leggiere's claim against Merrill Lynch Realty for fraud and misrepresentation, holding that under Florida Rule of Civil Procedure 1.180, a defendant asserting a third-party claim must first allege a basis for indemnification, subrogation, or contribution before asserting any other claim against the third party.
A third-party claimant must first allege against the third-party defendant a claim for indemnification, subrogation, or contribution. Any other claim arising from the transaction or occurrence may be asserted only in addition to, not in the absence of, such a foundational claim.
[1] A third-party plaintiff must allege a claim for indemnification, subrogation, or contribution against a third-party defendant before asserting any other claim arising fro…
[2] Florida Rule of Civil Procedure 1.180(a) was amended in 1984 to allow additional claims against a third-party defendant, but not in the absence of a claim for indemnifica…
Previewing 2 of 4 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“the third party claimant must first so allege against the third party defendant a claim for indemnification, subrogation or contribution”
Establishes the core holding that derivative claims must precede other third-party claims
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLeggiere purchased commercial real estate and personal property from William and Rita Ashworth through Merrill Lynch Realty as broker. The Ashworths s…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Third Party Complaint cases and more on FLexlaw
CAMPBELL, Chief Judge.
Appellant, Robert Leggiere, defendant in the original proceeding below, appeals the dismissal with prejudice of his third party complaint against appellee, Merrill Lynch Realty/Florida, Inc., a Florida corporation, doing business as Rodgers & Cummings Realty. The trial court found that appellant failed to properly plead a third party cause of action. We affirm.
William and Rita Ashworth, the plaintiffs in the original action below, listed a parcel of commercial real estate with appellee, as real estate broker. Appellant, Leggiere, purchased the property from the Ash-worths, including an inventory of personal property. Difficulties arose and the Ash-worths filed a cause of action against Leg-giere based on breach of contract and conversion. They alleged that Leggiere owed them money for the inventory. Leggiere then filed a third party complaint against Merrill Lynch alleging that because of fraud and misrepresentations made by Merrill Lynch, Leggiere suffered financial damage and was deprived of the use of the property.
Appellant did not successfully plead a cause of action for indemnification, subrogation or contribution against appellee. See Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla.1979).
The sole question for our consideration is whether under Rule 1.180, Florida Rules of Civil Procedure, a defendant who seeks to assert a derivative third party claim must first allege against the third party defendant a cause of action based on indemnification, subrogation or contribution before the third party complainant may assert any other claim against the third party defendant that grows out of the transaction or occurrence that is the subject matter of the original plaintiff’s claim. We hold that the third party claimant must first so allege against the third party defendant a claim for indemnification, subrogation or contribution. Prior to 1984, Rule 1.180 was clearly limited to allow third party actions only for indemnification, subrogation or contribution. In 1984, the first sentence of Rule 1.180(a) was amended.to provide as follows:
At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.
(Emphasis supplied.)
The underlined portion of that first sentence of Rule 1.180(a) contains the principal added language and the essential change made in the provision of the rule, and is the language of primary importance to us in reaching our conclusion. It is clear to us that by use of the word “and” rather than “or” at the beginning of the added language the rule change was meant to allow a claim in addition to but not in absence of a claim for indemnification, subrogation or contribution.
Affirmed.
DANAHY and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
Attorneys' Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So. 2d 1250 (Fla. 2d DCA 1989)…his court has recognized the propriety of a third party claim for subrogation. VTN Consol., Inc. v. Coastal Eng’g Assocs., Inc., 341 So. 2d 226 (Fla. 2d DCA 1976), cert. denied, 345 So. 2d 428 (Fla.1977); Leggiere v. Merrill Lynch Realty/Fla., Inc., 544 So. 2d 240 (Fla. 2d DCA 1989). . For example, an insured may sue his insurance carrier for uninsured motorist benefits and establish that his or her injuries were caused by an uninsured tortfeasor. Since the alleged tort-feasor is not a party to the action, a…
-
Tindall v. The Travelers Indem. Co., 613 So. 2d 1369 (Fla. 2d DCA 1993)…1022 (Fla. 5th DCA 1987). To properly plead a third-party cause of action, the third-party complaint must allege a claim for indemnification, subrogation or contribution against the third-party defendant. Leggiere v. Merrill Lynch Realty/Fla. Inc., 544 So. 2d 240, 241 (Fla. 2d DCA 1989). An insurance contract is in the nature of a contract for indemnification. Under the similar third-party practice in federal courts, impleader of an insurance company which denied coverage is permissible. See Skevolfilax v. Q…
-
Rupp v. Philpot, 619 So. 2d 1047 (Fla. 5th DCA 1993)…o assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim, [emphasis supplied]. Construing the change to the above rule, the court in Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d 240, 241 (Fla. 2d DCA1989) held that before asserting any other claim against a third-party defendant, a third-party plaintiff must allege a claim for indemnification, subrogation or contribution. The court expressed its rationale as follows: The sole…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)