Wednesday, June 17, 2009

Fourth District on Indemnity

In Wendt v. La Costa Beach Resort Condominium Association, Inc. (4D08-2482), the Fourth District affirmed the circuit court's order granting a motion to dismiss and certified conflict with the First District's opinion in Turkey Creek Master Owners Ass’n v. Hope, 766 So. 2d 1245
(Fla. 1st DCA 2000).

The court stated:

"The directors cannot state an action for indemnification under the circumstances of this case. “Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought.” Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979). “It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Id. at 493. “Stated differently, an indemnity right exists when one is left open to liability due to the wrongful acts of another.” Time Ins. Co. v. Neumann, 634 So. 2d 726, 729 (Fla. 4th DCA 1994). The classic example of an indemnity action is when a party held vicariously liable to a third person seeks recovery from another party whose action caused the damage. Safecare Med. Ctr. v. Howard, 670 So. 2d 1020, 1022 (Fla. 4th DCA 1996).

As to the appellant's argument that they should have been given leave to amend, the Court stated:

The directors contend that they should have been afforded an opportunity to amend their complaint to allege additional facts to support their cause of action. Because any attempt to amend the complaint to state the requisite allegations for an indemnification action would be futile, the trial court properly entered the dismissal with prejudice. See Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007) (“Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”).


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