Tamiami Builders, Inc. v. Smith

305 So. 2d 58 (1974)

TAMIAMI BUILDERS, INC., and Commercial Union Insurance Company, Appellants,
v.
Louis P. SMITH and the Lumbermens Mutual Insurance Company, Appellees.

No. 74-711.

District Court of Appeal of Florida, Second District.

December 18, 1974.

Thomas J. Tansey, II, Ft. Lauderdale, for appellants.

Charles R. Holley, Naples, for appellees.

McNULTY, Chief Judge.

In this subrogation claim, predicated on Tamiami Builders alleged negligence, an appeal is taken from a final judgment granting plaintiff/appellees' motion for summary judgment. We reverse.

An examination of the pleadings in this case shows that both appellants denied the portions of appellees' complaint alleging negligence. A denial was also patent from Tamiami's response to plaintiffs' request for admissions.

The only other relevant document filed by plaintiffs in support of the summary judgment was a deposition. The portion of the deposition relating to defendant's negligence is short, sketchy, speculative and inconclusive. It simply cannot be said that plaintiffs have, at this time, met their burden "... of showing conclusively that genuine issues of material fact do not exist."^[1]

Accordingly, the order granting summary judgment is reversed and the case is remanded for further proceedings not inconsistent herewith.

BOARDMAN and GRIMES, JJ., concur.

NOTES

[1] Holl v. Talcott (Fla. 1966), 191 So. 2d 40, 47.