final until disposition of timely filed motion for rehearing.
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.
D. Kirschbaum of Schwartz & Kirschbaum, Miami, for
appellee Kelly M. Meredith, D.C.
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.
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
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
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.
original trial court granted the motion, stating the
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.
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.
liability trial against the doctor took place three years
after the indemnity judgment was entered before a new
judge. The jury returned a verdict favoring the
doctor, and the successor trial court entered a final
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 ...