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Fitzpatrick v. Kelly M. Meredith, D.C.

Florida Court of Appeals, Fourth District

June 6, 2018

BRIAN FITZPATRICK and LAI FONG FITZPATRICK, Appellants,
v.
KELLY M. MEREDITH, D.C. and FLORIDA SPINE AND DISC CENTER, INC., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal of non-final order from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Janet Croom, Judge; L.T. Case No. 562011CA000898.

          Christopher M. Larmoyeux of Larmoyeux & Bone, P.L., West Palm Beach, for appellants.

          Scott D. Kirschbaum of Schwartz & Kirschbaum, Miami, for appellee Kelly M. Meredith, D.C.

          May, J.

         The plaintiffs in a medical malpractice action appeal an order granting the defendant doctor's motion for relief from a summary judgment on indemnification of the doctor's employer. They argue the doctor waived the right to contest the indemnification judgment because she agreed to its entry. We disagree and affirm.

         The plaintiffs sued the doctor and her employer for medical malpractice. The employer cross-claimed against the doctor for a defense to the malpractice claim and for indemnification.

         The employer settled with the plaintiffs for $1, 000, 000, and a final judgment for that amount was entered against it. In exchange for this stipulated judgment, the employer agreed to help the plaintiffs collect the million dollars from the doctor's insurer.

         The plaintiffs and the employer then moved for summary judgment against the doctor on the cross-claim for indemnity. The doctor filed a written opposition and cross-moved for summary judgment. At the hearing, however, the doctor's private counsel did not object to entry of the summary judgment against the doctor.

         The original trial court granted the motion, stating the following.

It is undisputed that following Plaintiffs' filing the Complaint against the Defendant, Kelly M. Meredith, D.C. and Florida Spine and Disc Center, Inc., that a demand was made to the Defendant Kelly M. Meredith, D.C., through her insurance agent, Arthur J. Gallagher of Risk Management Services, Inc. to provide a defense against the Plaintiffs' claims. The rule of indemnification is that an indemnitor, who has notice that a lawsuit has been filed and who is afforded an opportunity to appear and defend it is bound by a judgment rendered against the indemnitee. Camp, Dressler & McKee, Inc., v. Paul N. Howard, 853 So.2d 1072 (Fla. 5th DCA 2003). Lastly, there is no dispute as to the potential liability of the Defendant, Florida Spine and Disc Center, Inc. as a result of the alleged negligent conduct of Kelly M. Meredith, D.C.

         The trial court entered a final indemnification judgment against the doctor for $1, 000, 000. The doctor did not appeal the judgment. The employer then assigned all of its rights to the final judgment on indemnification to the plaintiffs.

         The liability trial against the doctor took place three years after the indemnity judgment was entered before a new judge.[1] The jury returned a verdict favoring the doctor, and the successor trial court entered a final judgment.

         The plaintiffs then sought to execute on the assigned indemnity judgment against the doctor. The doctor filed an amended motion for relief from judgment, pursuant to Florida Rule of Civil Procedure 1.540(b)(5). She argued that it was inequitable to enforce the indemnification judgment now that she had been ...


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