BARNETT BANK OF MIAMI, APPELLANT,
v.
MUTUAL OF OMAHA INSURANCE COMPANY, APPELLEE
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Barnett Bank appeals a summary judgment establishing its indemnity liability to its landlord Mutual of Omaha. The court reverses, holding that a genuine issue of material fact exists regarding whether an active/passive negligence relationship existed between the parties, precluding summary judgment, and that Mutual's settlement offer and judgment in the main action does not establish Mutual's liability for purposes of the indemnity dispute.
Summary judgment was improperly entered because a genuine issue of material fact exists regarding the active/passive relationship between the tortfeasors, precluding summary judgment. Additionally, an offer of judgment that is accepted and results in a non-litigated settlement does not operate as an estoppel or admission of facts in a separate suit involving different parties.
[1] A tortfeasor is not bound by the allegations of active negligence made against it in the original complaint when determining indemnity claims.
[2] An obligation to indemnify can arise from a liability imposed by law, not solely from an express contract.
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 general rule is that where each tortfeasor is chargeable with active negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other.”
Establishes the foundational principle that indemnity is unavailable between active tortfeasors
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Join FLexlaw to unlock all legal intelligenceBarnett Bank leased a parking lot from Mutual of Omaha. A Barnett employee was injured when a guard rail fell and sued Mutual for active negligence. M…
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NATHAN, Judge.
Barnett Bank of Miami, third party defendant and lessee of parking lot, appeals from an adverse summary judgment establishing liability for indemnity in favor of its landlord, third party plaintiff Mutual of Omaha Insurance Company.
This suit was initially brought by an employee of Barnett against Mutual for personal injuries sustained when a guard rail fell on her. The employee’s complaint alleged active negligence by Mutual. Mutual’s third party complaint against Barnett alleged that Mutual was only passively negligent. At the time of the filing of this appeal the main action between the plaintiff-employee and Mutual was still pending.
Barnett, by lease with Mutual, agreed to indemnify Mutual for any loss, claim and attorneys fees arising out of any injury received in or about the premises and arising out of any failure of Barnett to comply with the terms of the lease, as well as costs and attorneys fees in any litigation in which Barnett caused Mutual without its fault, to become involved.
The general rule is that where each tortfeasor is chargeable with active negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other. Armor Elevator Company, Inc. v. Elevator Sales & Service, Inc., 309 So. 2d 44 (Fla.3d DCA 1975).
Barnett argues that it was solely negligent and that since the employee’s complaint alleges that Mutual was actively negligent and since the lease provides for indemnity for the acts of a passive tortfeasor only, summary judgment was improperly entered. We do not agree that Mutual is bound by the employee’s complaint against Mutual or what Barnett considers exculpatory terms of the lease agreement. A tortfeasor is not “locked in”' by allegations in the original complaint that it was an active tortfeasor. Central Truck Lines, Inc. v. White Motor Corporation, 316 So. 2d 579 (Fla.3d DCA 1975).
The obligation to indemnify need not solely be based upon an express contract of indemnification, but may arise out of a liability imposed by law, Stuart v. Hertz Corporation, 351 So. 2d 703, 705 (Fla.1977), and “ . . . has been said to exist whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join.” 41 Am.Jur.2d, Indemnity § 2, cited in Stuart v. Hertz Corporation, supra at 705.
Given the fact that Mutual alleged in its third party complaint that it was but a passive tortfeasor, and since the evidence adduced shows that there is a genuine issue of material fact as to whether an active/passive relationship of tortfeasors exists between Barnett and Mutual, summary judgment was precluded.
Earlier in the course of these proceedings, it was ordered by this court that ruling on this interlocutory appeal be reserved until determination of the main action. The main action was concluded by judgment entered in favor of plaintiff-employee against Mutual pursuant to an offer of judgment under Fla.R.Civ.P. 1.442, made by Mutual and accepted by the employee.
Barnett now contends that, not only should the summary judgment against it be reversed, but summary judgment should be entered in favor of Barnett because the offer of judgment and judgment thereon amounted to an admission and adjudication of Mutual’s liability for active negligence. We disagree. While counsel has failed to provide us with, and we have been unable to find a case on point under the Florida or Federal offer of judgment rules, we are of the opinion that where a non-litigated offer of compromise is accepted and judgment entered thereon pursuant to the offer of judgment rule, it does not operate as an estoppel by judgment or admission of the facts contained in a complaint in a suit not between the parties to the judgment. Cf. Seaboard Air Line Railroad Company v. George F. McCourt Trucking, Inc., 277 F. 2d 593, 597 (5th Cir. 1960). The purpose of the offer of judgment rule is to induce or influence a party to settle litigation and obviate the necessity of a trial. Santiesteban v. McGrath, 320 So. 2d 476 (Fla.3d DCA 1975); Hernandez v. Trav elers Insurance Company, 331 So. 2d 329 (Fla.3d DCA 1976).
The summary judgment is reversed and the cause is remanded for trial on the third party complaint and answer thereto.
Reversed and remanded.
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Mortg. Guar. Ins. Corp. v. Stewart, 427 So. 2d 776 (Fla. 3d DCA 1983)…d party. Broward Marine, Inc. v. New England Marine Corp. of Delaware, 386 So. 2d 70, 76 (Fla. 2d DCA 1980); American Home Assurance Co. v. City of Opa Locka, 368 So. 2d 416 (Fla. 3d DCA 1979); Barnett Bank of Miami v. Mutual of Omaha Insurance Co., 354 So. 2d 114 (Fla. 3d DCA 1978); Central Truck Lines, Inc. v. White Motor Corp., 316 So. 2d 579 (Fla. 3d DCA 1975). Moreover, the settlement here could not, as urged, constitute a binding admission by the plaintiff MGIC that it was at fault in the instant tort i…
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Shayan Keramati v. Schackow, 553 So. 2d 741 (Fla. 5th DCA 1989)…. Dizney, 534 So. 2d 1205 (Flaz.5th DCA 1988); Argerenon v. St. Andrews Cove I Condominium Ass'n., Inc., 507 So. 2d 709 (Fla. 2d DCA 1987); Hittel v. Rosenhagen, 492 So. 2d 1086 (Fla. 4th DCA 1986); Barnett Bank of Miami v. Mutual of Omaha Ins. Co., 354 So. 2d 114 (Fla. 3d DCA 1978); 32 Fla.Jur.2d Judgments and Decrees § 147 at 546. . Zeidwig holds mutuality of parties is not a prerequisite to the defensive application of collateral estoppel in the criminal-to-civil context. . State ex rel. Watson v. Gray,…
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Nat'l Union Fire Ins. Co. of Pittsburgh v. Underwood, 502 So. 2d 1325 (Fla. 4th DCA 1987)…horities cited therefor and find them not controlling in this case. We hold the indemnity contract is clear and not subject to the common law rule applicable to indemnification in tort actions. Barnett Bank of Miami v. Mutual of Omaha Insurance Co., 354 So. 2d 114 (Fla.3d DCA 1978). Furthermore, we hold that a stipulation entered into in one action may be used in another unless limited by its terms. Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1 (Fla.1971). Nevertheless, in our considered opinion, appellant…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frank M. Stuart, M.D., P.A. v. The HERTZ Corp., 351 So. 2d 703 (Fla. 1977)
- Cent. Truck Lines, Inc. v. White Motor Corp., 316 So. 2d 579 (Fla. 3d DCA 1975)
- Seaboard AIR Line R.R. Co. v. George F. McCOURT Trucking, Inc., 277 F.2d 593 (5th Cir. 1960)
- Mariano Santiesteban v. McGRATH, 320 So. 2d 476 (Fla. 3d DCA 1975)
- Hernandez v. Travelers Ins. Co., 331 So. 2d 329 (Fla. 3d DCA 1976)
- Armor Elevator Co., Inc. v. Elevator Sales & Serv., Inc., 309 So. 2d 44 (Fla. 3d DCA 1975)