HomeMy WebLinkAbout0581 B. because they should have known of the
defective condition of the sand filter;"
Special interrogatories for the purpose of Defendants Carter's
and Gorman's Crossclaims read exactly the same way, with the
same options, and in all three cases, "B" was marked. F
D b M, the landowner, contends it is entitled to
indemnity on the basis that its liability is solely constructive
or derivative. That Houdaille Industries, Inc. v Edwards, 374
Sold 490 (Fla. 1979) is controlling. Also, the case of Winn-
Dixie Stores, Inc. v Fellows, 153 Sold 45 (1 DCA 1963) is similar
to this case and establishes that D ~ M's negligence is solely
constructive negligence.
Gorman contends that as the distributor, it is entitle d
to indemnity against Airquatic as a manufacturer on the basis
that the actual fault, the creation of the defect, should ulti-
mately fall upon the manufacturer who created the defect.
Bowen, the retailer and installer of the filter, con-
tends that it is entitled to indemnity against Airquatic, the `
manufacturer, on the basis that the special interrogatories to
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the jury found that Bowen's negligence was based upon constructive
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knowledge and not actual knowledge. ~
j Airquatic contends that all of these Crossplaintiffs
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would have the right of indemnity against it if the only claim
asserted by the Plaintiff had been for implied warranty of fitness
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for ordinary purpose (merchantability). However, Airquatic con-
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tends that because the jury also found each of the Crossplaintiffs
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guilty of negligence, that indemnity is not permitted., Airquatic
also relies on Houdaille and Mims Crane Service Inc. v Insle
Manufacturing Corp., 226 Sold 83b (2 DCA 1969)._
~ Houdaille holds that if both Defendants are at fault,
no matter how slight the fault, the principles of indemnity
preclude one Defendant's recovery of indemnity against the other
Defendant, except where the Defendant's negligence was solely
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x vicarious, constructive, technical or derivative. The Houdaille
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case involved a dismissal of a complaint for failure to state a
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