635 So.2d 74 (Fla.App. 1 Dist. 1994), 92-2291, State, Dept. of Transp. v. Southern Bell Tel. & Tel. Co., Inc.

CourtFlorida Court of Appeals. First District
Writing for the CourtAuthor: Ervin
Citation19 Fla. L. Weekly D 181,635 So.2d 74
PartiesSTATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, INC., a Florida Corporation, Appellee.
Date18 January 1994
Docket Number92-2292.,92-2291

Page 74

635 So.2d 74 (Fla.App. 1 Dist. 1994)

19 Fla. L. Weekly D 181

STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant,

v.

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, INC., a

Florida Corporation, Appellee.

Nos. 92-2291, 92-2292.

Florida Court of Appeals, First District.

January 18, 1994

Page 75

Thornton J. Williams, General Counsel and Thomas F. Capshew, Asst. General Counsel, Florida Dept. of Transp., Tallahassee, for appellant.

Robert Beatty, BellSouth Telecommunications, Inc., Miami, John P. Fons and Emily S. Waugh of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.

ON MOTION FOR REHEARING AND/OR CLARIFICATION

ERVIN, Judge.

The Department of Transportation (DOT) appeals the entry of summary judgment against it on its third-party claims against Southern Bell Telephone and Telegraph Company (Bell) seeking damages for (1) breach of contract, (2) common law indemnity,

Page 76

(3) contractual indemnity, and (4) misrepresentation. Because we conclude that genuine issues of material fact exist as to each claim, we reverse and remand for further proceedings.

In 1972, Bell and DOT entered into a contract styled "Utility Relocation Master Agreement," outlining the general terms for the relocation of Bell's utility facilities situated in DOT's right-of-ways during future construction projects. In regard to any anticipated highway project, DOT executes a change order with Bell, including a relocation schedule, enforcing the terms of the master agreement for the particular undertaking.

This appeal involves the construction of an intercoastal waterway bridge and ancillary road in New Smyrna Beach, Florida. Before the letting of bids for construction, DOT approved a relocation schedule on March 2, 1988, allowing Bell 120 days before the contractor's commencement of work thereon and 240 days thereafter in which to complete its relocation. Following the publication of the bids, Misener Marine Construction, Inc. (Misener), was awarded the contract for the construction of the bridge. 1 Shortly after Misener began work in January 1989, a dispute arose between Bell and Misener regarding the relocation of Bell's facilities and Misener's pile-driving plans. Bell informed Misener that pile driving could not be begun in a particular area of construction because its utilities were present in or near the pile-driving site.

Misener ultimately filed an action for damages against DOT, specifically alleging that the untimely relocation of certain undisclosed utility facilities by either Bell or DOT caused Misener to be delayed. (Misener alleged that although it completed construction of the bridge project within the 640 days required under its contract, it failed to complete the first phase of construction within the time specified.) In addition to filing an answer to Misener's complaint, DOT served a four-count, third-party complaint on Bell.

Following extensive discovery, Bell filed a motion for summary judgment on DOT's third-party complaint, and DOT filed a motion for summary judgment as to Misener's complaint. After a hearing on both motions, the trial court entered final summary judgment in favor of Bell against DOT, and an order denying DOT's motion for summary judgment against Misener. This appeal involves only the final summary judgment in favor of Bell, and the remainder of the opinion is divided into four parts, involving a discussion of each of DOT's third-party claims against Bell.

  1. BREACH OF CONTRACT.

    In regard to this theory of relief, DOT alleged in Count I of its third-party complaint that Bell had breached its contract by causing delays to Misener and by failing to defend against Misener's legal claim. DOT relies primarily upon the following provisions of the Utility Relocation Master Agreement to support its claims:

    The COMPANY [Bell] further agrees that said adjustment, changes or relocation of facilities will be made by the COMPANY with sufficient promptness so as to cause no delay to the DEPARTMENT or its contractor in the prosecution of such construction or relocation work; provided, however, that the COMPANY shall not be responsible for delay beyond its control; and that such "Relocation Work" will be done under the direction of the DEPARTMENT'S engineer; and the COMPANY further agrees that in the event the changes, adjustments or relocation of such facilities or utilities are done simultaneously with the construction project, that it will be directly responsible for the handling of any legal claims that the contractor may initiate due to delays caused by COMPANY'S negligence; and that the COMPANY will not either proceed with the "Relocation Work" with its own forces or advertise or let a contract for such work until it has received the DEPARTMENT'S written authority to proceed.

    (Emphasis added.)

    Regarding the question of breach caused by delays arising...

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6 practice notes
  • Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 042018 FLCA2, 2D16-2100
    • United States
    • Florida Court of Appeals. Second District
    • April 20, 2018
    ...Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986); see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship7 between the parties in order for ......
  • 43 F.3d 1054 (6th Cir. 1995), 93-1049, Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
    • United States
    • United States Court of Appeals (6th Circuit)
    • January 10, 1995
    ...for fraudulent misrepresentation or concealment of a material fact are actionable in Florida. Department of Transp. v. Southern Bell Tel., 635 So.2d 74, 78 (Fla.Dist.Ct.App.1994). An essential element of such a claim, however, is that the party alleging fraud must have suffered injury as a ......
  • 731 So.2d 638 (Fla. 1999), 91,767, Dade County School Bd. v. Radio Station WQBA
    • United States
    • Florida United States State Supreme Court of Florida
    • February 4, 1999
    ...Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986); see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship between the parties in order for common law indemn......
  • 286 F.3d 1233 (11th Cir. 2002), 00-13811, National R.R. Passenger Corp. v. Rountree Transport and Rigging, Inc.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (11th Circuit)
    • March 26, 2002
    ...district court failed to consider Florida cases like Florida Department of Transportation v. Southern Bell Telephone & Telegraph Co., 635 So.2d 74, 78 (Fla.Dist.Ct.App.1994), and J.A. Jones Construction Co. v. Zack Co., 232 So.2d 447, 450 (Fla.Dist.Ct.App.1970), which address indemnific......
  • Request a trial to view additional results
6 cases
  • Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 042018 FLCA2, 2D16-2100
    • United States
    • Florida Court of Appeals. Second District
    • April 20, 2018
    ...Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986); see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship7 between the parties in order for ......
  • 43 F.3d 1054 (6th Cir. 1995), 93-1049, Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
    • United States
    • United States Court of Appeals (6th Circuit)
    • January 10, 1995
    ...for fraudulent misrepresentation or concealment of a material fact are actionable in Florida. Department of Transp. v. Southern Bell Tel., 635 So.2d 74, 78 (Fla.Dist.Ct.App.1994). An essential element of such a claim, however, is that the party alleging fraud must have suffered injury as a ......
  • 731 So.2d 638 (Fla. 1999), 91,767, Dade County School Bd. v. Radio Station WQBA
    • United States
    • Florida United States State Supreme Court of Florida
    • February 4, 1999
    ...Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986); see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship between the parties in order for common law indemn......
  • 286 F.3d 1233 (11th Cir. 2002), 00-13811, National R.R. Passenger Corp. v. Rountree Transport and Rigging, Inc.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (11th Circuit)
    • March 26, 2002
    ...district court failed to consider Florida cases like Florida Department of Transportation v. Southern Bell Telephone & Telegraph Co., 635 So.2d 74, 78 (Fla.Dist.Ct.App.1994), and J.A. Jones Construction Co. v. Zack Co., 232 So.2d 447, 450 (Fla.Dist.Ct.App.1970), which address indemnific......
  • Request a trial to view additional results

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