A court cannot resolve an indemnity claim on summary judgment before the indemnitee’s underlying liability has been adjudicated. The Third District Court of Appeal reversed a summary judgment against the Florida Department of Environmental Protection on its third-party indemnity claim against the City of Miami Beach.
The dispute traces to a 1991 personal-injury suit over a diving injury in South Beach waters. FDEP later pursued indemnity against the City. The trial court granted the City summary judgment on that third-party claim, and FDEP appealed, arguing the court ruled on indemnity before FDEP’s own liability to the plaintiffs had been established.
The panel agreed. Because FDEP’s underlying liability had not been adjudicated, entering final summary judgment on the indemnity claim was premature. The court also noted that allegations in a complaint are not record evidence for summary-judgment purposes, so a statutory defense the City invoked lacked the required evidentiary predicate.
**Why it matters:** indemnity turns on the outcome of the underlying liability. Deciding it first puts the cart before the horse — and unproven allegations can’t substitute for record evidence on summary judgment.
*Florida Dep’t of Environmental Protection v. City of Miami Beach, No. 3D24-1436 (Fla. 3d DCA Sept. 2, 2026).*