Ewell Engineering & Contracting Co. v. Cato

District Court of Appeal of Florida

Ewell Engineering & Contracting Co. v. Cato

310 So. 2d 437, 1975 Fla. App. LEXIS 14051

CourtDistrict Court of Appeal of Florida

DecidedMarch 27, 1975

DocketNo. 74-1028

StatusPublished

Cited by2 cases

This text of 310 So. 2d 437 (Ewell Engineering & Contracting Co. v. Cato) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ewell Engineering & Contracting Co. v. Cato, 310 So. 2d 437, 1975 Fla. App. LEXIS 14051 (Fla. Ct. App. 1975).

Pincite

Opinion

MAGER, Judge.

This is an appeal by the third party plaintiffs, appellants herein, from an order entered in favor of the third party defendants, appellees herein, dismissing with prejudice the third party plaintiffs’ complaint. We reverse upon the authority of Stuart v. Hertz Corporation, Fla.App.1974, 302 So.2d 187, which decision had not as yet been rendered at the time the lower court entered the order under review. See also Travelers Indemnity Co. v. Trowbridge, Ohio 1975, 41 Ohio St.2d 11, 321 N.E.2d 787. While it may well be that the decision in Hoffman v. Jones, Fla.1973, 280 So.2d 431, permits an apportionment of fault between negligent parties (defendants) and that such an apportionment would provide a fairer and more equitable remedy than the third party procedures utilized herein, nevertheless the matter of apportionment is not involved in this proceeding; nor should the third party plaintiff be required to base his defense on a speculative remedy which has not yet received judicial recognition when there is a procedure presently available as indicated in Stuart v. Hertz Corporation, supra. Accordingly, the order of dismissal is vacated and set aside and the cause remanded for further proceedings consistent herewith.

OWEN, C. J., and DOWNEY, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

MAGER, Judge.

This is an appeal by the third party plaintiffs, appellants herein, from an order entered in favor of the third party defendants, appellees herein, dismissing with prejudice the third party plaintiffs’ complaint. We reverse upon the authority of Stuart v. Hertz Corporation, Fla.App.1974, 302 So.2d 187, which decision had not as yet been rendered at the time the lower court entered the order under review. See also Travelers Indemnity Co. v. Trowbridge, Ohio 1975, 41 Ohio St.2d 11, 321 N.E.2d 787. While it may well be that the decision in Hoffman v. Jones, Fla.1973, 280 So.2d 431, permits an apportionment of fault between negligent parties (defendants) and that such an apportionment would provide a fairer and more equitable remedy than the third party procedures utilized herein, nevertheless the matter of apportionment is not involved in this proceeding; nor should the third party plaintiff be required to base his defense on a speculative remedy which has not yet received judicial recognition when there is a procedure presently available as indicated in Stuart v. Hertz Corporation, supra. Accordingly, the order of dismissal is vacated and set aside and the cause remanded for further proceedings consistent herewith.

OWEN, C. J., and DOWNEY, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

310 So. 2d 437, 1975 Fla. App. LEXIS 14051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewell-engineering-contracting-co-v-cato-fladistctapp-1975.

Opinion

Related

Cite This Page — Counsel Stack