GENERAL ASPHALT COMPANY, INC., A FLORIDA CORPORATION, FOR THE USE AND BENEFIT OF LIBERTY MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION; AND LIBERTY MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION, ON ITS OWN BEHALF, APPELLANTS,
v.
BOB'S BARRICADES, INC., APPELLEE
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The court held that a subcontractor owed no duty to indemnify its general contractor because the underlying tort complaint did not allege vicarious liability, and the subcontractor's settlement protected the general contractor from claims arising from the subcontractor's actions.
[1] A subcontractor owes no duty to indemnify its general contractor for claims arising from the subcontractor's actions unless the underlying complaint specifically pleads a…
[2] A claimant must specifically plead vicarious liability as a separate cause of action to pursue such a claim under Florida law.
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Join FLexlaw to unlock all legal intelligenceAn injured motorist sued a general contractor and its subcontractor for injuries sustained due to road work. The subcontractor settled with the motori…
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General Asphalt Company, Inc. and Liberty Mutual Insurance Company appeal the trial court’s entry of final summary judgment in favor of Bob’s Barricades. We affirm the trial court’s order because Bob’s Barricades, General Asphalt’s subcontractor, owed no duty to indemnify General Asphalt.
This case involves a dispute over insurance coverage arising from a tort liability suit in which an injured motorist sued General Asphalt and Bob’s Barricades. The injured motorist sued to recover for injuries she received when she lost control of her car along the road General Asphalt and Bob’s Barricades worked on.
In accordance with the contract between General Asphalt and Bob’s Barricades, Bob’s Barricades was to add General Asphalt as an additional insured to its insurance coverage for any suits arising out of Bob’s Barricades duties under the contract. In her complaint, the injured motorist listed causes of action against both General Asphalt and Bob’s Barricades.
Bob’s Barricades and its primary insurance carrier, Lexington Insurance Company, reached a settlement agreement with the injured motorist for $1 million. In turn, the injured motorist released Bob’s Barricades not only from the direct negligence claims against it, but also for any vicarious liability anyone else might have that resulted from Bob’s Barricades actions. The injured motorist still preserved her claims against General Asphalt for any direct negligence claims she had against it.
General Asphalt eventually settled with the injured motorist for $7.25 million, a sum that included Liberty Mutual’s $1 million primary contribution limit plus contributions from both General Asphalt and Bob’s Barricades excess insurance carriers. After this, General Asphalt’s excess insurer, Great American Insurance Company, brought an action in federal court against Bob’s Barricades primary and excess insurer, National Union Fire Insurance, seeking to recover Great American’s contributions to the settlement. See Great American Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 574 F.Supp.2d 1294 (S.D.Fla.2008), 339 Fed.Appx. 896 (11th Cir.2009). The Southern District of Florida concluded that Great American could not recover against Lexington or National because Lexington did not owe General Asphalt a duty to defend or indemnify.
General Asphalt and Liberty filed claims against Bob’s Barricades for alleged breach of contract for failure to defend and indemnify General Asphalt in the liability claim by the injured motorist. Following the results in the federal court proceedings, Bob’s Barricades moved for summary judgment. The trial court found that Bob’s Barricades satisfied its contractual duties to General Asphalt and granted summary judgment in favor of Bob’s Barricades.
Our standard of review for the trial court’s summary judgment order is de novo. Florida Dep’t of Rev. v. New Sea Escape Cruises, Ltd., 894 So.2d 954 (Fla.2005) (“A legal matter [is] subject to a de novo standard of review.”).
We find persuasive, but not controlling, the Southern District’s determinations as to what duties, if any, were owed in this case. After looking at the facts of the case, we agree with the trial court that Bob’s Barricades did not owe General Asphalt a duty to indemnify.
Looking at the complaint filed by the injured motorist in the underlying case, we conclude that Bob’s Barricades and Lexington had no duty to indemnify *699General Asphalt. The injured motorist alleged in her complaint separate counts for each defendant and did not include a claim for vicarious liability against General Asphalt for the actions of Bob’s Barricades. Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate cause of action. See Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990). Under the terms of Bob’s Barricades contract with General Asphalt, Bob’s Barricades had a duty to indemnify General Asphalt for any claims General Asphalt might face arising from Bob’s actions. In other words, Bob’s Barricades’ had a duty to indemnify General Asphalt for any vicarious liability claims. However, the injured motorist failed to allege any vicarious liability claims in her complaint.
Further, we find that even if the injured motorist did allege vicarious liability in her complaint, Bob’s Barricades met its obligations to General Asphalt when it reached the $1 million settlement with the injured motorist. As part of the settlement, the injured motorist also agreed to waive not only any direct negligence claims against Bob’s Barricades, but also any vicarious liability claims she could bring resulting from the incident. Bob’s Barricades thus insured that General Asphalt would not face any claims resulting from Bob’s Barricades actions. As a result, the only issues that remained unresolved when General Asphalt, Liberty, and Great American settled were the injured motorist’s claims against General Asphalt for its own negligence.
For the reasons stated above, we affirm the lower court’s entry of summary judgment in Bob’s Barricades favor.
Affirmed.
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Cited By (11 total)
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Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010)…second amended complaint, Associated relies primarily on the following three cases: Goldschmidt v. Holman, 571 So. 2d 422 (Fla.1990); Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla.1985); and General Asphalt Co. v. Bob’s Barricades, Inc., 22 So. 3d 697 (Fla. 3d DCA 2009). We find these cases to be inapposite. [*873] In the Goldschmidt and General Asphalt cases, the proposed amendments were not permitted because the proceedings in those cases had progressed to a point at which the proposed amendmen…
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N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015)…a theory of vicarious liability that was not specifically pled.” Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla.1990) (relying on Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla.1985)); see also Gen. Asphalt Co. v. Bob’s Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009) (“Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate- cause of action.”). Florida Rule of Civil Procedure 1.110(b) requires a complaint to contain “…
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Desvarieux v. Bridgestone Retail Operations, LLC, 300 So. 3d 723 (Fla. 3d DCA 2020)…specifically pled as a separate cause of action. “Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate cause of action.” General Asphalt Co., Inc. v. Bob’s Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009). V. CONCLUSION Consistent with the findings in this opinion, we reverse the trial court’s grant of summary judgment in favor of Bridgestone and remand for further proceedings. Reversed and remanded.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mark N. Goldschmidt, M.D. v. Jerri Taletha Holman, 571 So. 2d 422 (Fla. 1990)
- Fla. Dep't OF Revenue v. NEW SEA Escape Cruises, Ltd., 894 So. 2d 954 (Fla. 2005)
- Great Am. Ins. v. Nat'l Union Fire Ins., 574 F. Supp. 2d 1294 (S.D. Fla. 2008)