Critical Guide to Understanding Common Law Claims for Indemnity

A common law claim for indemnity is a claim asserted as a defense that allows a defendant to shift the blame for an injury to another party. This can happen in certain circumstances, such as when two parties are both liable for an injury, but one is only vicariously liable.

In Florida, “To plead a cause of action for common law indemnity in Florida, the party seeking indemnity must allege three elements: 1) that he is wholly without fault; 2) that the party from whom he is seeking indemnity is at fault; and 3) that he is liable to the injured party only because he is vicariously, constructively, derivatively, or technically liable for the wrongful acts of the party from whom he is seeking indemnity.” Florida Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., 171 So. 3d 194, 196 (Fla. 5th DCA 2015).

Common law indemnity only “arises out of obligations imposed through special relationships.” Tsafatinos v. Family Dollar Stores of Florida, Inc., 116 So. 3d 576, 581 (Fla. 2d DCA 2013). This relationship has been described as “such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join.” Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So. 2d 836, 839 (Fla. 2d DCA 1969).

A Complaint may allege the existence of such a relationship, however, it can’t be a mere, improper legal conclusion. See Barret v. City of Margate, 743 So. 2d 1160, 1162 (Fla. 4th DCA 1999) (holding “[i]t is insufficient to plead opinions, theories, legal conclusions or argument”). “An allegation of an agency relationship is a mere legal conclusion which we do not have to accept as true in analyzing the sufficiency of the complaint.” Eagletech Comms., Inc. v. Bryn Mawr Inv. Group, Inc., 79 So. 3d 855, 863 n.6 (Fla. 4th DCA 2012).

Additionally, under Florida Law common law, indemnity can “only be applied where the liability of the person seeking indemnity is solely constructive or derivative and only against one who because of his act, has caused such constructive liability to be imposed.” Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 493 (Fla. 1979).

“[T]here is not right of common law indemnity except where the indemnity is guilty, at most, of passive negligence.” City of Clearwater v. L.M. Duncan & Sons, Inc., 466 So. 2d 1116, 1118 (Fla. 2d DCA 1985). “Any fault on the plaintiff in a common law indemnity action––no matter how slight that fault––precludes the plaintiff’s recovery.” Peoples Gas System v. Posen Construction, Inc., 332 So. 3d 604, 611 (Fla. 2021).

For more information regarding claims for common law indemnity, contact one of our experienced litigation attorneys at 305-570-2208. You can also email our trial attorney Eduardo directly at eduardo@ayalalawpa.com.  

We at Ayala Law PA are passionate about helping those in legal need, so please don’t hesitate to schedule a case evaluation with us online here. 

[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case].