BODIN APPAREL, INC., A FLORIDA CORPORATION, APPELLANT,
v.
SUPERIOR STEAM SERVICE, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Bodin Apparel appeals the dismissal of its third-party complaint against Superior Steam Service and its officers in a wrongful death action. The court held that while individual corporate officers cannot be held personally liable for the claims alleged, the corporate entity Superior Steam Service can proceed to trial on at least some counts of the third-party complaint.
A defendant is not precluded from filing a third-party complaint alleging that its own negligence was passive compared to the active negligence of the third-party defendant, despite plaintiff's allegations to the contrary. However, individual corporate officers cannot be held personally liable for the claims alleged, so the dismissal as to the individual defendants (the McMillens and Lena Harley) was proper. The dismissal as to the corporate defendant Superior Steam Service, Inc. was error, as the court lacked authority to dismiss negligence claims against the corporate entity.
[1] A defendant is not precluded from filing a third-party complaint alleging passive negligence, even if the plaintiff's complaint alleges active negligence by the defendant…
[2] A defendant may seek indemnification from a third-party defendant by alleging that the third-party defendant's negligence was active and the defendant's negligence was pa…
Previewing 2 of 5 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“a defendant is not 'locked in' by an allegation in the plaintiff's complaint that the defendant is the active tortfeasor, thus precluding the defendant from alleging in a third party complaint that he is but a passive tortfeasor and that the third party defendant is the active tortfeasor”
Establishes the core holding that defendants can allege comparative negligence in third-party complaints despite plaintiff's characterization
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Join FLexlaw to unlock all legal intelligenceNorman T. Harley, vice president of Superior Steam Service, Inc., was electrocuted while working on Bodin Apparel's roof installing equipment. Bodin A…
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NATHAN, Judge.
This is an appeal by Bodin Apparel, Inc., defendant and third party plaintiff in the trial court, from an order granting with prejudice, the motion of third party defendants, Superior Steam Service, Inc., and Clarence H. McMillen, Mary C. Mc-Millen and Lena A. Harley, to dismiss the third party complaint filed against them in a wrongful death action.
The action commenced when the plaintiff, Lena A. Harley, as wife and adminis-tratrix of the estate of Norman T. Harley, deceased, filed a complaint for damages for the death of Norman T. Harley by electrocution when he came in contact with an uninsulated high voltage power line while working installing equipment on the roof of Bodin Apparel, Inc.’s premises. The complaint alleged that the deceased, as vice president of Superior Steam Service, Inc., was engaged by Bodin Apparel to install equipment on the roof. Harley was performing work on Bodin Apparel’s roof, as an employee of Superior Steam, when he was electrocuted. The complaint alleged active negligence on the part of Bod-in Apparel. Bodin answered the plaintiff’s complaint and filed a third party complaint against Superior Steam Service, Inc., as employer of the deceased, and against its officers and board of directors, individually, one of whom is Lena A. Harley, the plaintiff. The third party defendants filed a motion to dismiss, the motion was granted with prejudice and this appeal ensued.
Bodin Apparel contends that the trial court erred in dismissing the third party complaint. We agree in part. In Central Truck Lines, Inc. v. White Motor Corporation, Fla.App.1975, 316 So. 2d 579, we held that a defendant is not “locked in” by an allegation in the plaintiff’s complaint that the defendant is the active tortfeasor, thus precluding the defendant from alleging in a third party complaint that he is but a passive tortfeasor and that the third party defendant is the active tortfeasor and defeating the maintenance of a third party claim in the same action. The fact that plaintiff Harley alleged that Bodin Apparel was the actively negligent party, does not preclude defendant Bodin from filing a third party claim alleging that, if it (Bodin) was negligent, its negligence was merely passive, in contrast to the active negligence of the third party defendant(s) and that, therefore, it (Bodin) is entitled to be indemnified.
We find, however, that the McMillens and Lena Harley, the officers and directions of Superior Steam, Inc., are not subject to individual liability on any of the allegations of the third party complaint under the facts presented in this case. See Gordon Finance, Inc. v. Belzaguy, Fla.App. 1968, 216 So. 2d 240; Plaza Del Prado Condominium Association, Inc. v. GAC Properties, Inc., Fla.App.1974, 295 So. 2d 718, and compare Ramel v. Chasebrook Construction Company, Fla.App.1961, 135 So. 2d 876; CIC Leasing Corporation v. Dade Linen and Furniture Company, Fla. App.1973, 279 So. 2d 73.
One of the allegations of the third party complaint is that the third party defendants, Superior Steam Service Inc., Clarence H. McMillen, Mary McMillen, and Lena A. Harley, jointly and/or severally, negligently failed to provide workmen’s compensation insurance to the original plaintiff, the decedent, Norman T. Harley, and that had workmen’s compensation insurance been provided, the defendant-third party plaintiff, Bodin Apparel, would be covered thereby and would be immune from suit as not being a third party under Chapter 440, Fla.Stat. Since the McMillens and Lena Harley, the officers and directors, are not responsible as individuals for any of the claims in the third party complaint, they are not individually responsible for failure to have workmen’s compensation insurance. Also, we are not aware of any authority for holding the corporate defendant, Superior Steam Service, Inc., to respond in negligence on the claim for failure to have workmen’s compensation insurance.
Accordingly, we hold that the trial court correctly dismissed the third party complaint as to the individual defendants but erred in dismissing it as to Superior Steam, Inc. This opinion is not to be considered as passing on the merits vel non of certain allegations in the third party complaint against Superior Steam Service, Inc., including failure to have workmen’s compensation insurance.
The order of dismissal is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.
PEARSON, Judge
(dissenting in part).
I agree with the decision except that I would hold that there is no cause of action stated for “failure to have workmen’s compensation insurance.”
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The Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977)…lokur’s complaint. Central Truck Lines, Inc. v. White Motor Corporation, 316 So. 2d 579 (Fla. 3d DCA 1975); Crawford Door Sales Company, Inc. v. Donahue, 321 So. 2d 624 (Fla. 2d DCA 1975); Bodin Apparel, Inc. v. Superior Steam Ser [*141] vice, Inc., 328 So. 2d 533 (Fla. 3d DCA 1976). He may still allege in his third party complaint that he is but a passive tortfeasor. The court’s refusal to allow Firestone to so amend was particularly prejudicial in light of this court’s ruling in Armor Elevator, supra, that…
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Arturo A. Munder & 444 Inverrary Corp. v. Circle ONE Condo., Inc., 596 So. 2d 144 (Fla. 4th DCA 1992)…rector, of the condominium association prior to assumption of control by the unit owners, was not personally liable for construction defects created by himself as the actual builder. Similarly, in Bodin Apparel, Inc. v. Superior Steam Service, Inc., 328 So. 2d 533 (Fla. 3d DCA 1976), the officers and board of directors were found not personally liable even though the corporation failed to provide required workers compensation insurance which would have covered an electrocuted employee. On the other hand, we a…
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Home Indem. Co. v. Edwards, 360 So. 2d 1112 (Fla. 1st DCA 1978)…that its negligence, if any, was passive or secondary. Central Truck Lines, Inc. v. White Motor Corporation, 316 So. 2d 579 (3d DCA 1975); Seaboard Coast Line Railroad v. Brown, 297 So. 2d 843 (2nd DCA 1974); Bodin Apparel v. Superior Steam Service, 328 So. 2d 533 (3d DCA 1976); INA v. King, 340 So. 2d 1175 (4th DCA 1976). In the INA v. King, case, the court, in an opinion by Judge Alderman, stated: “. . . We conclude that it is an in-demnitee’s actual wrongdoing or lack of it, rather than allegations of wro…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ramel v. Chasebrook Constr. Co., Inc., 135 So. 2d 876 (Fla. 2d DCA 1961)
- Cent. Truck Lines, Inc. v. White Motor Corp., 316 So. 2d 579 (Fla. 3d DCA 1975)
- CIC Leasing Corp. v. Dade Linen & Furniture Co., 279 So. 2d 73 (Fla. 3d DCA 1973)
- Gordon Fin., Inc. v. Belzaguy, 216 So. 2d 240 (Fla. 3d DCA 1968)
- Plaza del Prado Condo. Ass'n, Inc. v. GAC Props., Inc., 295 So. 2d 718 (Fla. 3d DCA 1974)