244 So. 3d 383
Fla. Dist. Ct. App.2018Background
- Tank Tech installed an FDEP‑approved secondary containment system (the Phoenix System) inside underground storage tanks (USTs) and contracted with Circle K to repair any damage to those systems.
- Valley Tank was retained by UST owners to perform interstitial integrity testing using the Estabrook Method; that method requires verification of groundwater depth because groundwater affects test pressure.
- After testing, some tanks developed cracks/pinholes; Tank Tech repaired the tanks and sued Valley Tank asserting equitable subrogation, negligence, and indemnification, alleging Valley Tank failed to verify groundwater and over‑vacuumed tanks.
- Dr. John Cignatta offered affidavits opining Valley Tank did not verify groundwater, applied excessive negative pressure (exceeding −4 psi), and that excess vacuum likely caused tank failures; Valley Tank disputed his methodology and causation.
- The trial court granted Valley Tank summary judgment on all counts; Tank Tech appealed. The Second District reversed as to equitable subrogation but affirmed summary judgment on negligence and indemnity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable subrogation: whether Tank Tech may recover repair costs from Valley Tank | Tank Tech paid repairs to protect its contractual interest and is not a volunteer; Dr. Cignatta creates a genuine factual dispute that Valley Tank caused damage | Valley Tank argued Tank Tech was a volunteer and offered no admissible proof that Valley Tank caused the damage | Reversed: disputed facts in affidavits precluded summary judgment; equitable subrogation claim survives |
| Negligence duty: whether Valley Tank owed Tank Tech a duty of care for purely economic losses | Tank Tech: Valley Tank’s testing created a foreseeable zone of risk to Tank Tech’s installed systems | Valley Tank: no special relationship or privity; loss is purely economic and flowed from Tank Tech’s contract with Circle K | Affirmed: no legal duty as a matter of law; negligence claim fails |
| Negligence causation/evidence: whether affidavit evidence establishes negligence and causation | Tank Tech: expert affidavit shows failure to check groundwater and excessive vacuum causing structural failure | Valley Tank: expert affidavit insufficient, lacked detail and methodology for calculations | Court: did not decide factual breach (no duty); but found plaintiff’s affidavits sufficient to defeat summary judgment on subrogation; negligence claim fails on duty ground |
| Indemnification: whether Tank Tech is entitled to common‑law indemnity from Valley Tank | Tank Tech: seeks indemnity for amounts paid to Circle K for repairs | Valley Tank: no duty, no contract, and no proven fault; indemnity requires special relationship or fault basis | Affirmed: indemnity requires fault/vicarious liability or special relationship; none existed, so claim fails |
Key Cases Cited
- W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So. 2d 204 (Fla. 5th DCA 1986) (describing equitable subrogation principles)
- Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) (factors for equitable subrogation)
- McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992) (duty arises where conduct creates a foreseeable zone of risk)
- Jackson Hewitt, Inc. v. Kaman, 100 So. 3d 19 (Fla. 2011) (duty is a legal question; breach/cause are fact issues)
- Crandall v. S.W. Fla. Blood Bank, Inc., 581 So. 2d 593 (Fla. 2d DCA 1991) (standards for opposing summary judgment affidavits)