NATIONWIDE MUTUAL INSURANCE COMPANY AND LARRY MCCOY MILAM, APPELLANTS,
v.
RALPH FOUTS, APPELLEE
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The court held that Florida's third-party practice rules allow for contribution claims even if a judgment has not yet been entered.
A passenger sued a driver and their insurance carrier after a collision. The defendant driver and carrier filed a third-party complaint for contributi…
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GRIMES, Judge.
An automobile driven by Lawless was involved in a collision with an automobile driven by Milam. Fouts, who was a passenger in the Lawless automobile, sued Milam and his insurance carrier for injuries suffered in the accident. Milam and the carrier filed a third party complaint for contribution against Lawless. Relying upon the rule then in effect which barred contribution among joint tortfeasors, the court dismissed the third party complaint with prejudice.
Pending the appeal from this order, the legislature passed the Uniform Contribution among Tortfeasors Act and specified that it should apply to all causes of action pending at the time of its passage. Fla. Stat. § 768.31 (1975). Thereafter, the Supreme Court held that the doctrine of no contribution among joint tortfeasors no longer applied to Florida. Lincenberg v. Issen, Fla.1975, 318 So. 2d 386.
Fla.Stat.- § 768.31 (1975) does not specifically provide for the enforcement of contribution by way of third party practice. The commissioners’ comment to the uniform act reflects that the drafters of the model act intended to leave this to the established procedure in the several states. Uniform Contribution among Tortfeasors Act (U.L.A.) § 3. The Florida rule on third party practice clearly contemplates the procedure of a defendant filing a third party complaint against a person not a party to the action “who is or may be liable to him for all or part of the claim” against him even though a judgment has not yet been entered. Rule 1.180 RCP; see Mims Crane Service, Inc. v. Insley Mfg. Corp., Fla.App.2d, 1969, 226 So. 2d 836.
The order dismissing the third party complaint is reversed, and the case is remanded for further proceedings consistent herewith.
NcNULTY, C. J., and SCHEB, J., concur.
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NEW Hampshire Ins. Co. v. Petrik, 343 So. 2d 48 (Fla. 1st DCA 1977)…g: “It states a cause of action for contribution among joint tortfeasors under Section 768.31, F.S. Section 768.31(4)(d), F.S., prevents the use of third party practice to achieve that contribution, despite Nationwide Mutual Insurance Co. v. Fouts, 323 So. 2d 593 (D.C.A. 2, Fla., 1975), which apparently did not take subsection (4)(d) into consideration.” This appeal involves the interpretation of certain sections of the Uniform Contribution Among Tortfeasors Act and its relationship to Fla.R.Civ.P. 1.180, t…1 / 2
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Attorneys' Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So. 2d 1250 (Fla. 2d DCA 1989)…e common liability....” § 768.31(2)(b), Fla.Stat. (1987) (emphasis added). Nevertheless, a claim for contribution can be brought as a cross-claim or a third party claim, on a contingent basis, prior to the payment. Nationwide Mut. Ins. Co. v. Fouts, 323 So. 2d 593 (Fla. 2d DCA 1975); Wallace v. Strassel, 479 So. 2d 231 (Fla. 4th DCA 1985); Petrik; Mount Sinai Hosp. of Greater Miami v. Mora, 342 So. 2d 1063 (Fla. 3d DCA 1977). Likewise, a claim for indemnity does not accrue until the underlying claim has been…
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T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So. 3d 411 (Fla. 2d DCA 2009)…und, Inc. v. Punta Gorda Isles, Inc., 547 So. 2d 1250, 1251 (Fla. 2d DCA 1989); N.H. Ins. Co. v. Petrik, 343 So. 2d 48, 48-50 (Fla. 1st DCA 1977); Fla. Power Corp. v. Taylor, 332 So. 2d 687, 692 (Fla. 2d DCA 1976); Nationwide Mut. Ins. Co. v. Fouts, 323 So. 2d 593, 594 (Fla. 2d DCA 1975). The rationale was that rule 1.180, Florida Rules of Civil Procedure, provides for third-party actions against a person not a party to the main action who is or may be liable to a named defendant for all or a part of the pla…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lincenberg v. Issen, 318 So. 2d 386 (Fla. 1975)
- Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So. 2d 836 (Fla. 2d DCA 1969)