JOSEF J. DULMAN, APPELLANT,
v.
SEABOARD COAST LINE RAILROAD COMPANY, APPELLEE
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A Florida appellate court granted a petition for common law certiorari to reinstate a negligence complaint that was dismissed without prejudice. The trial court erred in dismissing the complaint solely because the plaintiff failed to join a possible joint tortfeasor, as Florida law permits a plaintiff to sue any one or all joint tortfeasors.
The trial court erred in dismissing the complaint because Florida law establishes that a plaintiff has the right to sue any one or all of the joint tortfeasors whose negligent acts or omissions united and produced the plaintiff's injuries. Failure to join all potential joint tortfeasors is not a proper basis for dismissal without prejudice.
[1] An interlocutory appeal does not lie from an order dismissing a complaint without prejudice.
[2] A notice of appeal and record may be treated as a petition for a writ of common law certiorari.
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 appellant had the right to sue any one or all of the joint tortfeasors whose negligent acts or omissions united and produced his injuries”
Establishes the fundamental principle that a plaintiff may choose which joint tortfeasors to sue
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Join FLexlaw to unlock all legal intelligenceJosef J. Dulman brought a negligence action against Seaboard Coast Line Railroad Company. The trial court dismissed Dulman's complaint without prejudi…
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CROSS, Judge.
Initially we note that appellant-plaintiff, Josef J. Dulman, is attempting to prosecute an interlocutory appeal from an order dismissing without prejudice a complaint directed toward appellee-defendant, Seaboard Coast Line Railroad Company, in an action formerly cognizable at law. Rule 4.2 F.A.R. does not permit an interlocutory appeal from such order. However, we will treat the notice of appeal and the record herein as a petition for a writ of common law certiorari duly presented to this court. Goff v. General Motors Corporation, 292 So. 2d 594 (Fla.App.1974).
Upon review of the appellant’s petition for a writ of common law certiorari and after consideration of the briefs and oral arguments of counsel for the respective parties, we determine that the appellant had the right to sue any one or all of the joint tortfeasors whose negligent acts or omissions united and produced his injuries. See Souto v. Segal, 302 So. 2d 465 (Fla.App.1974); Maybarduk v. Bustamante, 294 So. 2d 374 (Fla.App.1974); Winn Dixie Stores, Inc. v. Fellows, 153 So. 2d 45 (Fla.App.1963); Sands v. Wilson, 140 Fla. 18, 191 So. 21 (1939). Therefore, the trial court departed from the essential requirements of the law in dismissing without prejudice appellant’s complaint for the reason that the appellant had failed to join a possible joint tortfeasor, Michael Anthony Tripi, as a party defendant.
Accordingly, the appellant’s petition for a writ of common law certiorari is granted, the order dismissing without prejudice the appellant’s complaint is quashed, and the cause is remanded to the trial court for further proceedings consistent with the views herein expressed.
Certiorari granted; cause remanded.
MAGER, J, and REDDICK, THOMAS J., Jr., Associate Judge, concur.
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The Travelers Ins. Co. v. Laurence H. Wilson, 371 So. 2d 145 (Fla. 3d DCA 1979)…fault is not a basis for summary judgment on the question of coverage. There is no provision of the law which requires a plaintiff to maintain only one suit against only one tort-feasor at a time. See Dulman v. Seaboard Coast Line Railroad Company, 308 So. 2d 53 (Fla. 4th DCA 1975). Therefore, in response to Traveler’s demand for a decision on the coverage question, he is entitled to show the existence of an uninsured vehicle which he claims caused the accident. The trial court may proceed to determine the…
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Parker Tower Condo. Ass'n, Inc. v. Cent. Bank & Tr. Co., 507 So. 2d 616 (Fla. 4th DCA 1987)…ANSTEAD, J., dissenting. I would deny the motion to dismiss and grant the petition for writ of certiorari. See Dulman v. Seaboard Coast bine Railroad, 308 So. 2d 53 (Fla. 4th DCA 1975); Fla.R.Civ.P. 1.210; and § 737.402(2)(z), Fla. Stat. (1985).…
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Authorities Cited
- Winn-Dixie Stores, Inc. v. Fellows, 153 So. 2d 45 (Fla. 1st DCA 1963)
- Maybarduk v. Bustamante, 294 So. 2d 374 (Fla. 4th DCA 1974)
- Sands v. Wilson, 140 Fla. 18 (Fla. 1939)
- Souto v. Segal, 302 So. 2d 465 (Fla. 3d DCA 1974)
- Goff v. Gen. Motors Corp., 292 So. 2d 594 (Fla. 2d DCA 1974)
- Battle v. State, 292 So. 2d 594 (Fla. 2d DCA 1974)