Opinion
No. 86-1729.
April 21, 1987.
Appeal from the Circuit Court, Dade County, Michael H. Salmon, J.
Harold C. Knecht, Jr., Neimark Neimark and Debra Neimark, for appellant.
Kubicki, Bradley, Draper, Gallagher McGrane and Betsy Gallagher, Robert B. Hicks, for appellees.
Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
This is an appeal from a final order dismissing an amended third party complaint filed by the seller of a solar water heater [Solar America Corporation, a/k/a Solar America Cronex] against the manufacturer of the solar water heater [Solar City, Inc.]. The amended third party complaint sounds in indemnity and is based on a claim filed against the seller by the purchaser of the solar water heater — which claim was settled between the parties and paid by the seller.
An appeal taken from the same final order dismissing a cross-claim filed by the seller of the solar water heater [Solar America Corporation, a/k/a Solar America Cronex] against the installer of the solar water heater [The Independent Solar Plan Company] has been settled by the parties during the pendency of this appeal.
We reverse the final order of dismissal upon a holding that the subject third party complaint states a cause of action sounding in indemnity; indeed, the third party defendant manufacturer has filed a confession of error to that effect. The third party complaint alleges that the seller's liability to the purchaser in this case was entirely vicarious, constructive, derivative or technical, as it was based on the manufacturer's alleged negligent acts in manufacturing a defective solar water heater. The law is clear that indemnity lies against the manufacturer under these circumstances. See Pender v. Skillcraft Indus., 358 So.2d 45 (Fla. 4th DCA 1978); Insurance Co. of North America v. King, 340 So.2d 1175 (Fla. 4th DCA 1976); Wetherington, Tort Indemnity in Florida, 8 Fla.St.L. Rev. 383, 409-10 (1980).
The final order of dismissal under review is reversed and the cause is remanded to the trial court for further proceedings.