LUKE RADER, M.D., AND THE EMPLOYERS FIRE INSURANCE COMPANY, APPELLANTS,
v.
VARIETY CHILDREN'S HOSPITAL, AND THE CONTINENTAL INSURANCE COMPANY, APPELLEES
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A physician and his insurance company appealed the dismissal of their contribution claim against a hospital and its insurer after being held jointly and severally liable in a medical malpractice action. The court affirmed the dismissal, holding that Florida law does not permit contribution between joint tort-feasors, and that the comparative negligence doctrine adopted in Hoffman v. Jones did not require a change to this long-standing rule.
The court held that contribution between joint tort-feasors remains prohibited under Florida law. The Hoffman v. Jones decision on comparative negligence did not abrogate the long-standing rule against contribution between joint tort-feasors, and no adequate reason existed to change this established rule.
[1] In Florida, there is no right to contribution between joint tort-feasors.
[2] The adoption of comparative negligence does not, by itself, abrogate the rule that there is no contribution between joint tort-feasors.
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Join FLexlaw to unlock all legal intelligence“contribution between joint tort-feasors could not be ordered under the laws of this State”
Establishes the legal rule the lower court applied in granting the motion to dismiss
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Join FLexlaw to unlock all legal intelligenceDr. Luke Rader and Variety Children's Hospital were found jointly and severally liable for damages in a medical malpractice action brought by Josefina…
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PEARSON, Judge.
The appellant physician and his insurance company appeal a final judgment granting the motion of the defendant hospital and its insurance company to dismiss appellants’ amended complaint with prejudice. The physician and the hospital had previously been defendants in a medical malpractice action brought by one Josefina Osle.1 The physician and the hospital were found jointly and severally liable for Josefina Osle’s damages in the malpractice action. Thereafter, the physician and his insurance company filed a complaint in the circuit court seeking contribution from the hospital and its insurance company. The complaint alleged that subsequent to the entry of the judgment against the physician and the hospital, the plaintiff, Employers Fire Insurance Company, offered to contribute to satisfy the judgment obtained by the plaintiff in the malpractice action. The complaint sought contribution from the hospital and its insurer to satisfy the judgment. The defendants moved to dismiss the action upon the ground that contribution between joint tort-feasors could not be ordered under the laws of this State. The motion was granted as to the initial complaint with leave to amend, and as to the subsequently filed amended complaint with prejudice. This appeal followed.
On this appeal, the appellants urge that this court should reverse upon a holding that the comparative negligence doctrine as adopted by the Supreme Court of Florida in Hoffman v. Jones, Fla.1973, 280 So. 2d 431, requires that a rule allowing contribution between negligent defendants should be adopted.
We respectfully decline to embark upon such a perilous journey for two reasons. First, we find that no adequate reason is brought forward for the abrogation of this rule of long standing. See H. E. Wolfe Const. Co. v. Ellison, 127 Fla. 808, 174 So. 594 (1937); Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Aircraft Taxi Co. v. Perkins, Fla.App.1969, 227 So. 2d 722; Westinghouse Electric Corporation v. J. C. Penney Company, Fla.App. 1964, 166 So. 2d 211; Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So. 2d 45. Second, the recent holding of the Supreme Court of Florida in Hoffman v. Jones, supra, referred to the rule that there is no contribution between joint tort-feasors and declined to abrogate the rule. See Hoffman v. Jones, supra, 280 So. 2d at 439; Issen v. Lincenberg, Fla.App.1974, 293 So. 2d 777 (3rd D.C.A. filed March 26, 1974).
Accordingly, the judgment appealed is affirmed.
Affirmed.
. See Variety Children’s Hospital v. Osle, Fla.App.3rd, 292 So. 2d 382, 1974.
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Maybarduk v. Bustamante, 294 So. 2d 374 (Fla. 4th DCA 1974)…cept of no contribution among joint tort-feasors. Two recent decisions from the Third District support that proposition. Issen v. Lincenberg, Fla.App.1974, 293 So. 2d 777, opinion filed March 26, 1974; Rader v. Variety Children’s Hospital, Fla.App., 293 So. 2d 778 opinion filed April 2, 1974; cf. Comparative Negligence — Some Unanswered Questions, The Florida Bar Journal, Vol. 47, No. 9, October 1973. We find no fault with our sister court’s interpretation of the Hoffman decision as it relates to [*379] the c…
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Leesburg Hosp. Ass'n, Inc. v. Edward W. Carter, M.D., 321 So. 2d 433 (Fla. 2d DCA 1975)…he hospital could make out a claim for indemnification from the doctor. At the time the third party complaint was dismissed, the law of Florida precluded contribution among joint tort-feasors. Rader v. Variety Children’s Hospital, Fla.App.3d, 1974, 293 So. 2d 778. Sensing the possibility that this rule might soon be changed, the lower court left the door open for amendment “in the event the Florida Supreme Court might alter the present law concerning contribution between joint tortfeasors.” It did not take l…
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Acevedo v. Justo L. Acosta, 296 So. 2d 526 (Fla. 3d DCA 1974)…ce in view of the fact that there is no contribution between tort-feasors in the State of Florida. Issen v. Lincenberg, Fla.App. 1974, 3rd D.C.A., 293 So. 2d 777, filed March 26, 1974; Rader v. Variety Children’s Hospital, Fla.App. 1974, 3rd D.C.A., 293 So. 2d 778, filed April 2, 1974. The law in Florida as to the imputation of negligence is well-settled that absent evidence of a joint enterprise or some element of an agency relationship, the negligence of the driver of an automobile is not imputable to a pa…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- 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)
- Westinghouse Elec. Corp. v. J. C. Penney Co., Inc., 166 So. 2d 211 (Fla. 1st DCA 1964)
- H. E. Wolfe Constr. Co., Inc. v. Nila Laure Ellison, 127 Fla. 808 (Fla. 1936)
- Issen v. Lincenberg, 293 So. 2d 777 (Fla. 3d DCA 1974)
- Aircraft Taxi Co. v. Perkins, 227 So. 2d 722 (Fla. 3d DCA 1969)
- Variety Child's. Hosp. v. Osle, 292 So. 2d 382 (Fla. 3d DCA 1974)