Fred's Excavating & Crane Service, Inc. v. Continental Insurance

District Court of Appeal of Florida

Fred's Excavating & Crane Service, Inc. v. Continental Insurance

340 So. 2d 1220, 1976 Fla. App. LEXIS 15829

District Court of Appeal of Florida·Decided December 17, 1976·No. No. 76-71·Published·Cited by 2 cases

Opinion

PER CURIAM.

This is an appeal from an order of the circuit court of Orange County dismissing, for failure to state a cause of action, Counts III and Count IV of Appellant’s third amended complaint. Appellant declined to further amend its complaint and the dismissals were with prejudice.

We find no error in the trial court’s dismissal of Count III, which attempted to allege a cause of action for breach of an implied warranty of fitness for a particular purpose, because Count III fails to allege a particular or unusual use different from the purpose for which the item sold is ordinarily used. However, as to Count IV, we find that it sufficiently alleges a cause of action for negligence and hold that the trial court erred in dismissing Count IV.

REVERSED IN PART; AFFIRMED IN PART, and remanded for further proceedings consistent with this opinion.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.

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PER CURIAM.

This is an appeal from an order of the circuit court of Orange County dismissing, for failure to state a cause of action, Counts III and Count IV of Appellant’s third amended complaint. Appellant declined to further amend its complaint and the dismissals were with prejudice.

We find no error in the trial court’s dismissal of Count III, which attempted to allege a cause of action for breach of an implied warranty of fitness for a particular purpose, because Count III fails to allege a particular or unusual use different from the purpose for which the item sold is ordinarily used. However, as to Count IV, we find that it sufficiently alleges a cause of action for negligence and hold that the trial court erred in dismissing Count IV.

REVERSED IN PART; AFFIRMED IN PART, and remanded for further proceedings consistent with this opinion.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.

Fred's Excavating & Crane Service, Inc. v. Continental Insurance, 340 So. 2d 1220, 1976 Fla. App. LEXIS 15829 (Fla. Ct. App. 1976).

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340 So. 2d 1220 (Fred's Excavating & Crane Service, Inc. v. Continental Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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