Olnick v. Robert Myers Painting, Inc.

384 So. 2d 54, 1980 Fla. App. LEXIS 16352

• Court: District Court of Appeal of Florida
• Decided: June 4, 1980
• Docket: No. 78-1989
• Status: Published

Opinion

PER CURIAM.

We reverse the Summary Final Judgment rendered in favor of third-party defendants, appellees here.

In order for appellant to prevail on his indemnity claim the pleadings must allege and the proof must support the fact that appellant’s liability, if any, would be solely vicarious, constructive, derivative, or technical, and based upon the actual wrongdoing or breach of contract of appellees. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

It seems to us the appellee’s position, simplistically stated, is that the allegations in the third-party complaint are insufficient to state a cause of action for indemnity. However, as indicated in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977):

The test of whether allegations stating a cause of action in indemnity are sufficient should not be determined on a Motion for Summary Judgment.

Finally, the record discloses the existence of genuine issues of fact which must, of necessity, be addressed on the merits and not in summary fashion.

For the foregoing reasons we reverse the Summary Final Judgment and remand for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ„ and OSEE R. FAGAN, Associate Judge, concur.