Universal Dry Wall, Inc. v. Dade County

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the order dismissing the appellants' cross-complaint for indemnity or contribution against Dade County only insofar as the dismissal was with prejudice and remand with directions to allow the appellants leave to amend their cross-complaint as to (1) the county’s alleged negligent erection of the stop sign herein, and (2) the county’s alleged negligent design, control and maintenance of the road intersection herein, based on our recent decision in Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla.3d DCA 1979), as well as the reasoning and authorities cited at Cheney v. Dade County, 353 So.2d 623, 626-630 (Fla.3d DCA 1977) (Hubbart, J. dissenting), cert, pending. In my view, the cross-complaint as presently framed is technically insufficient to state a claim for contribution or indemnity but is capable of so stating such a claim upon proper amendment. The dismissal of the cross-complaint was therefore proper, but the dismissal should have been without prejudice.