Ewell Engineering & Contracting Co. v. Cato
EWELL ENGINEERING & CONTRACTING COMPANY v. Tam Finley CATO
Opinion of the Court
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MAGER, Judge.
This is an appeal by the third party plaintiffs, appellants herein, from an order entered in favor of the third party defendants, appellees herein, dismissing with prejudice the third party plaintiffs’ complaint. We reverse upon the authority of Stuart v. Hertz Corporation, Fla.App.1974, 302 So.2d 187 , which decision had not as yet been rendered at the time the lower court entered the order under review. See also Travelers Indemnity Co. v. Trowbridge, Ohio 1975, 41 Ohio St.2d 11 , 321 N.E.2d 787 . While it may well be that the decision in Hoffman v. Jones, Fla.1973, 280 So.2d 431 , permits an apportionment of fault between negligent parties (defendants) and that such an apportionment would provide a fairer and more equitable remedy than the third party procedures utilized herein, nevertheless the matter of apportionment is not involved in this proceeding; nor should the third party plaintiff be required to base his defense on a speculative remedy which has not yet received judicial recognition when there is a procedure presently available as indicated in Stuart v. Hertz Corporation, supra. Accordingly, the order of dismissal is vacated and set aside and the cause remanded for further proceedings consistent herewith.
OWEN, C. J., and DOWNEY, J., concur.
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