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Three Strikes and You’re Out!

Aug 18, 2014 - News by

WLSC Defeats Three Claims Against Client-Insured 

A team of Miami attorneys, Partner Joseph Suarez and Associate Jorge Maza, recently secured adjudication with prejudice on behalf of a physical therapy assistant in a cross-claim that has been in litigation since 2009. In the underlying action, a man who had recently undergone a total knee replacement and his wife sued the man’s home healthcare company, its independent contractor physical therapy company, and an independent contractor physical therapy assistant of the physical therapy company for injuries sustained during a physical therapy session. While the physical therapy assistant was the only defendant personally present when the injuries were sustained, the Plaintiffs brought claims under theories of negligence and vicarious liability against all three Defendants.

During the pendency of the underlying litigation, the home healthcare company filed a cross-claim against the assistant seeking common law indemnification, contribution, and contractual indemnification for damages it alleged it sustained and continued to sustain as a result of the assistant’s alleged negligence. After the Plaintiffs’ underlying claim against the assistant was settled, Attorneys Suarez and Maza stepped in to defend the assistant in the resultant cross-claim.

First, the team attacked the company’s claim for common law indemnification by arguing that there was no “special relationship” between the parties because the assistant was an independent contractor of the home healthcare company’s independent contractor and, as such, the company could not be vicariously liable for any alleged negligence on the part of the assistant. After an extensive evidentiary hearing, the Court granted WLSC’s Motion for Partial Summary Judgment, finding that there was no “special relationship” between the parties. The Court also found that the assistant was not the company’s apparent agent and there was no non-delegable duty owed by the company to the Plaintiffs that would open the company up to liability for the assistant’s alleged negligence. The Court upheld its ruling on a subsequent Motion for Reconsideration.

After prevailing against the count for common law indemnification, Attorneys Suarez and Maza attacked the contribution claim. Using the details of the parties’ separate settlement agreements with the Plaintiffs and the company’s own statements regarding its lack of negligence, the Court found that there was no right of contribution in favor of the company and granted the assistant’s Motion for Partial Summary on contribution. This left a final remaining count for contractual indemnity, which the Court had allowed the company to add on the same day it granted the summary judgment on contribution.

The company’s last ditch effort to prevail on its cross-claim was by way of a claim for contractual indemnification, which it based on a theory that the company was a third-party beneficiary of the employment contract between the physical therapy assistant and physical therapist.

After the company amended its cross-claim to add the count for contractual indemnification, WLSC’s attorneys filed a Motion to Dismiss arguing that, as a matter of law and the terms of the contract upon which the company relied, the company was not an intended third-party beneficiary.

The Court agreed with the assistant’s position on the issue. The Court also found that, insofar as it relied on the contract attached to the cross-claim, the company could never prevail on its claim for contractual indemnification because the contract did not explicitly reference the company or any class to which it could be reasonably interpreted to belong.
Therefore, the Court dismissed the contractual indemnification claim with prejudice, effectively ending the company’s cross-claim in favor of WLSC’s client.

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