171 So. 3d 194
Fla. Dist. Ct. App.2015Background
- FPIC denied the Smiths' homeowner claim after water damage in their kitchen, and FPIC sued Mullen for third-party contributions.
- The Smiths hired Mullen to perform plumbing; FPIC sought indemnity and related relief from Mullen.
- Trial court dismissed Counts I (indemnity) and II (negligence) with prejudice and Count III (equitable subrogation) without prejudice; FPIC’s ore terms motion to amend was denied.
- The appellate court reviews a motion to dismiss de novo and asks whether the third‑party complaint states a claim.
- The court analyzes common law indemnity, equitable subrogation, and negligence, applying Houdaille and related Florida authorities.
- The court remands to reinstate indemnity and subrogation, and to permit amendment of the negligence claim if needed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FPIC stated a valid common law indemnity claim | FPIC alleged Mullen faulted and FPIC faultless | No special relationship; FPIC cannot indemnify | Indemnity adequately pleaded; error to dismiss |
| Whether FPIC stated a valid equitable subrogation claim | Subrogation premature but pleads fault and payment may occur later | Right of subrogation premature until judgment or payment | Subrogation claim sufficiently pleaded; error to dismiss |
| Whether the negligence claim should have been dismissed or amended | FPIC has standing to plead negligence on behalf of insureds | Standing and pleading insufficient; may be moot if indemnity/subrogation dismissed | Dismissal with prejudice reversed; leave to amend to refile if needed |
| Whether FPIC’s amendment right was misapplied when the court denied leave to amend | Rule 1.190(a) allows one as of course amendment before responsive pleading | Motion to dismiss is not a pleading; no automatic amendment right | Error to deny leave to amend; remand with right to amend |
Key Cases Cited
- Houdaille Indus., Inc. v. Edwards, 374 So.2d 490 (Fla. 1979) (defines indemnity fault concepts and special relationship relevance)
- Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999) (requires special relationship for common law indemnity)
- National Union Fire Ins. Co. of Pittsburgh v. Southeast Bank, N.A., 476 So.2d 766 (Fla. 3d DCA 1985) (subrogation not arises until judgment or payment (the adopted view))
- Quinones v. Florida Farm Bureau Mut. Ins. Co., 366 So.2d 854 (Fla. 3d DCA 1979) (subrogation timing principles on debt payment)
- Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So.2d 484 (Fla. 4th DCA 2000) (permits third-party subrogation pleading before underlying debt paid)
- Attorneys’ Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So.2d 1250 (Fla. 2d DCA 1989) (supports third-party practice to dispose related claims in one action)
- Auto-Owners Ins. Co. v. Ace Elec. Serv., Inc., 648 F.Supp.2d 1371 (M.D. Fla. 2009) (interprets vicarious/constructive/derivative/tech fault concepts in indemnity)
- Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005) (amendment timing after motion to dismiss)