Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co.

• Decision Date: 05 July 1979
• Docket Number: No. 54349,54349
• Citation: 374 So.2d 487
• Parties: CHARLES POE MASONRY, INC., et al., Petitioners/Cross-Respondents, v. SPRING LOCK SCAFFOLDING RENTAL EQUIPMENT COMPANY et al., Respondents/Cross-Petitioners.
• Court: Florida Supreme Court

Page 487

374 So.2d 487

CHARLES POE MASONRY, INC., et al., Petitioners/Cross-Respondents, v. SPRING LOCK SCAFFOLDING RENTAL EQUIPMENT COMPANY et al., Respondents/Cross-Petitioners.

No. 54349.

Supreme Court of Florida.

July 5, 1979.

Rehearing Denied Sept. 28, 1979.

Edward A. Perse of Horton, Perse & Ginsberg and P. J. Carroll & Associates, and Alan R. Dakan of High, Stack, Lazenby & Bender, Miami, for petitioners/cross-respondents.

Gary E. Garbis of Virgin, Whittle, Garbis & Gilmour, Miami, for respondents/cross-petitioners.

SUNDBERG, Justice.

This cause is before us on petition and cross-petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 358 So.2d 84, which allegedly misapplied Leonard L. Farber Co. v. Jaksch, 335 So.2d 847 (Fla. 4th DCA 1976). The issue is whether respondent and cross-petitioner Spring Lock is entitled to indemnity from petitioner and cross-respondent Charles Poe Masonry, Inc. under either a common law or contractual theory. We have jurisdiction pursuant to article V, section 3(b) (3), Florida Constitution.

Arthur Lott suffered serious injury when he fell from a scaffold on a construction site. He filed an action for damages against the manufacturer of the scaffold, Spring Lock, and its insurer. The scaffold was leased by Spring Lock to Poe, which assembled and used it as subcontractor on the construction project. In the lease, "Poe undertook to maintain and use the equipment in a safe and proper manner, and to assume all responsibility for claims arising out of the erection, maintenance, use or possession of the equipment, and agreed to hold Spring Lock harmless from all such claims." ¹ Spring Lock Scaffolding Rental Equipment Co. v. Charles Poe Masonry, Inc., 358 So.2d 84, 85 (Fla. 3d DCA 1978). Miller & Solomon Construction Company was the general contractor on the project and Lott's employer.

Lott's action against Spring Lock sought recovery on three grounds; negligence, breach of implied warranty and strict liability. Spring lock filed a third-party complaint against its lessee Poe for common law and contractual indemnity, and against the general contractor and property owners for common law indemnity. Lott and Spring Lock entered into a Mary Carter agreement which fixed a $300,000 liability limit. The court granted the third-party defendants' motions for summary judgment.

The district court, relying on Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977), held that Spring Lock was not entitled to common law indemnity since Lott's claim against respondent was based on negligence or breach of warranty. On the contractual indemnity issue, the court held that if upon trial it should be found that the injury was caused by the joint negligence of Spring Lock and Poe, Spring Lock would be entitled to indemnity from Poe on the basis of their indemnity agreement. Accordingly, the district court affirmed the summary judgment as to all third-party defendants on the issue of common law indemnity, but reversed as to Poe on the issue of contractual indemnity.

Petitioner maintains that Spring Lock cannot recover under either theory of indemnity. We agree. Common law indemnity is unavailable for the reasons expressed in our companion decision filed today, Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

With respect to the possibility of contractual indemnity, we take note that contracts of indemnification which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964). Such contracts will be enforced only if they express an intent to indemnify against the indemnitee's own wrongful acts in clear and unequivocal terms. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973).

The lease between Spring Lock and Poe provided that:

2. The LESSEE shall at all times and at his own expense keep the leased equipment in good, safe and efficient working order, repair and condition and shall not permit anyone to injure, deface or remove it or any part thereof. LESSEE agrees to erect, maintain and use said equipment in a safe and proper manner and in conformity with all laws and ordinances pertaining thereto and in accordance with COMPANY safety rules and regulations. The COMPANY shall have no responsibility, direction or control over the manner of erection, maintenance, use or operation of said equipment by the LESSEE. The...