PEOPLES GAS SYSTEM, INC., A FLORIDA CORPORATION, APPELLANT,
v.
B & P RESTAURANT CORP., D/B/A MANNY'S RESTAURANT, A FLORIDA CORPORATION, CONSOLIDATED MUTUAL INSURANCE CO., A NEW YORK CORPORATION, ET AL., APPELLEES
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Peoples Gas System appeals summary judgments dismissing its third-party indemnification claims against a restaurant and its insurer arising from a gas explosion. The court reverses, holding that genuine issues of material fact existed regarding whether Peoples Gas was passively negligent while the defendants were actively negligent, precluding summary judgment.
The court held that the trial court erred in granting summary judgment because the appellees failed to carry their burden of showing the absence of genuine issues of material fact and that they were entitled to judgment as a matter of law. When doubts exist, they must be resolved against granting summary judgment and in favor of a trial on the merits.
[1] A party seeking indemnification may establish a right to crossclaim against active tortfeasors when the third-party claimant is guilty of only passive negligence.
[2] Summary judgment is inappropriate when there is evidence raising a genuine issue of material fact regarding the distinction between passive and active negligence.
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Join FLexlaw to unlock all legal intelligence“The right of appellant to crossclaim for indemnification against active tortfeasors where the third party claimant is guilty of only passive negligence has been upheld in Florida.”
Establishes the governing legal principle that Peoples Gas can seek indemnification based on passive versus active negligence distinction
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Join FLexlaw to unlock all legal intelligenceA gas explosion occurred at Manny's Restaurant in Miami Beach, injuring Jean and Louis Rappel and Mary Louise and Matthew Reitsma. Peoples Gas was sue…
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Appellant, Peoples Gas System, Inc., seeks review of two final summary judgments entered by the Circuit Court of Dade County in favor of third party defendants, B & P Restaurant Corp., d/b/a Manny’s Restaurant, and its insurer, Consolidated Mutual Insurance Company. The judgments were entered as to appellant’s third party claim for indemnification against appellees in two separate suits for personal injuries filed by Jean Rappel and Louis Rappel, her husband, and Mary Louise Reitsma and Matthew Reitsma, her husband, against the appellant and appellees and several others as a result of a gas explosion at Manny’s Restaurant in Miami Beach. Peoples Gas filed a third party complaint against the *805appellees and other defendants for indemnification on the theory that Peoples Gas could only be vicariously or secondarily liable for passive negligence while the other defendants’ liability would be for active negligence.
After numerous depositions were taken of the parties and witnesses, B & P and Consolidated Mutual filed motions for summary judgment on the third party complaints. Summary final judgments were entered in favor of the movants in both suits. Peoples Gas has appealed from the entry of the summary judgments in both suits. The two appeals have been consolidated.
It is appellant’s contention that the trial court erred in entering the final summary judgments against Peoples Gas on its third party claim for indemnification as there was evidence that raised a genuine issue of material fact and established that if Peoples Gas was negligent, it was guilty of only passive or secondary negligence, and that B & P Restaurant was guilty of active negligence. The right of appellant to crossclaim for indemnification against active tortfeasors where the third party claimant is guilty of only passive negligence has been upheld in Florida. Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330 143 So. 316; Suwannee Valley Electric Co-Op v. Live Oak, Perry & Gulf R. Co., Fla. 1954, 73 So.2d 820; Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672; Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So.2d 45, modified, Fla., 160 So.2d 102.
We have carefully considered the record on appeal and viewed in the light most favorable to the appellant1 we have concluded that the trial court erred in granting appellees’ motions for summary judgment.
We find that the appellees have not carried their burden of showing that there is no genuine issue of material fact and that the movants are entitled to judgment as a matter of law.2 All doubts are to be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve the disputed facts.
Reversed and remanded for further proceedings.
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The Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977)…t of indemnity under existing law,”4 and the right of a passive tortfeasor to cross claim against an active tortfeasor is well established in Florida. See Winn-Dixie Stores, Inc. v. Fellows, supra; Peoples Gas System, Inc. v. B & P Restaurant Corp., 271 So. 2d 804 (Fla. 3d DCA 1973); Maybarduk v. Bustamante, 294 So. 2d 374 (Fla. 4th DCA 1974); Florida Power Corporation v. Taylor, 332 So. 2d 687 (Fla. 2d DCA 1976). Thus, as long as the provisions of Section 440.11(1) do not bar his claim, appellant could stat…
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Fla. Power Corp. v. Taylor, 332 So. 2d 687 (Fla. 2d DCA 1976)…ubmitted to the trial judge. Therefore, it was improper to grant summary judgment against Florida Power on its third party complaint against Diversacon and the Canal Authority. See Peoples Gas System, Inc. v. B & P Restaurant Corp., Fla.App.3d 1973, 271 So. 2d 804. We next turn to the power company’s argument that the covenant in the deed to the Canal Authority furnishes an independent basis for indemnity against the Canal Authority. We are in agreement that violation of such a contractual obligation can be…
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Maybarduk v. Bustamante, 294 So. 2d 374 (Fla. 4th DCA 1974)…f which is “the primary cause of the injury” later cases seem to couch this exception in terms of “active-passive” negligence.3 Westinghouse Electric Corp. v. J. C. Penney Co., supra; Peoples Gas System, Inc. v. B & P Restaurant Corp., Fla.App.1973, 271 So. 2d 804; Florida Power & Light Co. v. General Safety Equip. Co., Fla.App. 1968, 213 So. 2d 486; Stembler v. Smith, supra. In Western Electric Corp. v. J. C. Penney Co., supra, the First District in quoting from Winn-Dixie Stores, Inc. v. Fellows, supra, mad…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Seaboard Air Line Ry. Co. v. Am. Dist. Elec. Protective Co., 106 Fla. 330 (Fla. 1932)
- Winn-Dixie Stores, Inc. v. Fellows, 153 So. 2d 45 (Fla. 1st DCA 1963)
- Fincher Motor Sales, Inc. v. Cecile Lakin, 156 So. 2d 672 (Fla. 3d DCA 1963)
- Fletcher Co. v. Melroe Mfg. Co., 261 So. 2d 191 (Fla. 1st DCA 1972)
- Suwannee Valley Elec. Coop., Inc. v. Live Oak, 73 So. 2d 820 (Fla. 1954)
- Winn-Dixie Stores, Inc. v. Pepsi-Cola Bottling Co. OF Jacksonville, Inc., 160 So. 2d 102 (Fla. 1964)
- Prestress Erectors, Inc. v. James Talcott, Inc., 213 So. 2d 296 (Fla. 3d DCA 1968)
- Am. Bankers Ins. Co. of Fla. v. Nolan's Garage, Inc., 262 So. 2d 727 (Fla. 3d DCA 1972)