INSURANCE COMPANY OF NORTH AMERICA, ETC., APPELLANT,
v.
POSEIDON MARITIME SERVICES, INC., APPELLEE
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INA, subrogee of an insured physician, sought contribution from Poseidon for settlement payments made in a 1985 lawsuit where the underlying claims included intentional torts. The court affirmed dismissal, holding that contribution is barred for intentional wrongdoing under Florida law.
INA's contribution action fails because the conduct attributed to Davis constitutes intentional wrongdoing, which is statutorily excluded from contribution rights under Florida law. Even assuming the settlement was properly attributable to negligence rather than intentional torts, contribution is barred by the statutory exclusion for tortfeasors who intentionally caused or contributed to the injury.
[1] Documents attached to a complaint are considered part thereof for all purposes and may be relied upon in ruling on a motion to dismiss.
[2] There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.
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Join FLexlaw to unlock all legal intelligence“There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.”
Statutory bar to contribution established by Florida Statutes section 768.31(2)(c), which the court applied to reject INA's contribution claim.
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Join FLexlaw to unlock all legal intelligenceIn 1985, Josip Srzentic sued Dr. Genovese, Sunshine Medical Center, and Jeff Davis (Poseidon's employee) alleging Davis induced Genovese to issue a fa…
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PER CURIAM.
Insurance Company of North America (“INA”) appeals an order dismissing with prejudice its action for contribution against appellee Poseidon Maritime Services, Inc. We affirm.
INA was the insurer of Peter Genovese, M.D., and Sunshine Medical Center, Inc. In 1985 Josip Srzentic brought suit against Genovese, Sunshine and Jeff Davis, an employee of Poseidon. The complaint alleged that Davis had induced Genovese to make a false physical examination report declaring Srzentic unfit for work aboard ship. The complaint made various claims for damages for intentional torts. It also asserted medical negligence against Genovese and Sunshine Medical Center, and a claim for “negligence per se” against the defendants under section 448.045, Florida Statutes (1983). INA paid $100,000 in settlement and Srzentic executed releases in favor of all defendants.
In 1988 INA, as subrogee of Genovese, brought suit for contribution against Poseidon, as employer of Jeff Davis. INA concedes that contribution may not be had for intentional wrongdoing, see § 768.31(2)(c), Fla.Stat. (1987), but alleged in the contribution complaint that the amount paid in settlement was for negligence. INA annexed to its complaint the 1985 Srzentic complaint as well as the Srzentic general release and orders of dismissal of the 1985 litigation.
The trial court concluded that INA’s amended complaint failed to state a cause of action and we agree. The documents attached to the contribution complaint were properly considered “a part thereof for all purposes,” Fla.R.Civ.P. 1.130(b), and the trial court properly relied on those documents in ruling on the motion to dismiss. See Harry Pepper & Associates, Inc. v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA), cert. denied, 252 So. 2d 797 (Fla.1971). Assuming arguendo that the settlement was properly attributable to the claim for medical negligence, the conduct attributed to Davis is within the statutory exclusion: “There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.” § 768.31(2)(c), Fla.Stat. (1987). The same logic would also apply to the claim under section 448.045, Florida Statutes.*
Affirmed.
*
For present purposes we assume arguendo that a right of action exists under that statute. But see Fischer v. Metcalf, 543 So. 2d 785 (Fla. 3d DCA 1989) (on rehearing en banc) (no private right of action under chapter 827, Florida Statutes, for violation of statutory duty to report alleged child abuse). If a private right of action is available under the statute, then it would more properly be classified as an intentional tort rather than, as the plaintiff did here, negligence.
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