SOUTHERN BELL TEL. v. Dept. of Transp.
1996 WL 61248, 1996 Fla. App. LEXIS 1057, 668 So.2d 1039 (1996)
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Rule of Law:
A co-defendant has the right to appeal a final summary judgment granted in favor of another co-defendant to preserve its potential rights to contribution and apportionment of fault, even if the plaintiff chooses not to appeal that judgment.
Facts:
- From 1984 through 1986, Dade County managed a road project at the intersection of S.W. 107 Avenue and 72 Street.
- In April 1986, after a final inspection, the Florida Department of Transportation (DOT) accepted the project from the county.
- Sometime in 1986, Dade County requested that Southern Bell Telephone & Telegraph Company (Southern Bell) relocate a utility anchor and guy wire at the intersection.
- DOT approved permits for the relocation in July 1986 and again in November 1986.
- On November 26, 1990, Joseph Lavaniegos allegedly tripped and fell over a utility guy anchor embedded in the center of a concrete sidewalk at that intersection.
- The record does not reflect if or when Southern Bell had relocated the guy wire pursuant to the permits.
Procedural Posture:
- Joseph Lavaniegos sued Southern Bell, the Florida Department of Transportation (DOT), and others in a Florida trial court for personal injuries.
- DOT filed a motion for summary judgment, arguing there was no evidence of its liability.
- The trial court granted summary judgment in favor of DOT.
- The plaintiff, Lavaniegos, did not appeal the summary judgment granted to DOT.
- Co-defendant Southern Bell filed a timely appeal of the summary judgment granted in favor of its co-defendant, DOT, to the District Court of Appeal of Florida, Third District.
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Issue:
Does a co-defendant have the right to appeal a summary judgment granted in favor of another co-defendant to preserve its potential rights to contribution and apportionment of fault, even when the plaintiff does not appeal?
Opinions:
Majority - Nesbitt, J.
Yes. A co-defendant has the right to appeal a summary judgment entered in favor of another co-defendant to protect its own legal interests. The court reasoned that a co-defendant with potential contribution rights against another has standing to seek review of an order exonerating that co-defendant. Filing a cross-claim for contribution is not a prerequisite for such an appeal because the right to contribution does not formally accrue until after a judgment of joint liability is entered. Furthermore, the appeal is necessary because if the summary judgment stands, the exonerated co-defendant (DOT) cannot be included on the verdict form for apportionment of fault under Fabre v. Marin, as there would be no legally sufficient evidence of its fault in the record. The remaining defendant (Southern Bell) would be collaterally estopped from later asserting the exonerated party's fault, making a direct appeal the only way to preserve these rights.
Analysis:
This decision is procedurally significant for co-defendants in tort litigation, particularly in jurisdictions with comparative fault rules like Florida's. It clarifies that a defendant's failure to appeal the dismissal of a co-defendant results in the waiver of the right to apportion fault to that party or to later seek contribution. This forces defendants to litigate not only against the plaintiff but also to actively preserve claims against co-defendants by monitoring and appealing adverse rulings, even when the plaintiff is passive. The ruling underscores that a summary judgment in favor of one defendant is a final determination of non-liability as to all parties in the action, including co-defendants, unless it is appealed.
