Summary
affirming the dismissal of a contribution claim premised on a contract dispute
Summary of this case from Zurich Am. Ins. Co. v. Southern-Owners Ins. Co.Opinion
Nos. 82-2637, 83-544.
January 17, 1984. Rehearing Denied February 24, 1984.
Appeal from the Circuit Court for Dade County, Jon I. Gordon, J.
Peters, Pickle, Flynn, Niemoeller Downs and Donna S. Catoe, Miami, for appellant.
Blackwell, Walker, Gray, Powers, Flick Hoehl and James C. Blecke, Miami, for appellees.
Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
The orders under review in these consolidated appeals dismissing the appellant's amended third-party complaint for indemnity, contribution and professional malpractice are affirmed. As the appellant now concedes, no cause of action for indemnity lies under the principles laid down in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla. 1979). Likewise, because the plaintiff's bad faith claim against Iowa Mutual is an action ex contractu rather than a tort, Nationwide Mutual Insurance Company v. McNulty, 229 So.2d 585 (Fla. 1969), Iowa's third-party claim against Lynn for contribution among tortfeasors cannot lie. Finally, although Iowa may sue Lynn for professional malpractice, this claim must be brought in an independent action rather than, as here, in a third-party complaint. Accordingly, the dismissal of the claims for indemnity and contribution is affirmed; the dismissal of appellant's claim for professional malpractice is affirmed without prejudice to the appellant instituting an independent action based on such claim.
Affirmed.