B E & K, Inc. v. Seminole Kraft Corp., 90-3578

• Decision Date: 28 June 1991
• Docket Number: No. 90-3578,90-3578
• Parties: BE & K, INC., Appellant, v. SEMINOLE KRAFT CORP. and Robert and Effie Bricker, Appellees. 583 So.2d 361, 16 Fla. L. Week. D1780
• Court: Florida District Court of Appeals

Page 361

583 So.2d 361

BE & K, INC., Appellant, v. SEMINOLE KRAFT CORP. and Robert and Effie Bricker, Appellees.

No. 90-3578.

583 So.2d 361, 16 Fla. L. Week. D1780

District Court of Appeal of Florida First District

June 28, 1991.

Karen K. Cole, of Boyd & Jenerette, P.A., Jacksonville, for appellant.

Frank W. Hession, of Matthews & Hession, Jacksonville, for appellees.

ON MOTION TO DISMISS

ZEHMER, Judge.

In this proceeding, BE & K, Inc., seeks appellate review of a non-final order granting Seminole Kraft Corporation a partial summary judgment on its third-party claim for indemnification pursuant to a contractual provision made between BE & K and Seminole Kraft. BE & K attempts to invoke the jurisdiction of this court under rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, ¹ or, alternatively, under rule 9.100 as a petition for common law writ of certiorari. Seminole Kraft moves to dismiss for lack of jurisdiction, urging that the cited rule does not afford jurisdiction under the circumstances of this case, and that no basis for invoking this court's common law certiorari jurisdiction has been shown by BE & K. For the reasons now discussed, we dismiss the proceeding for lack of jurisdiction.

The underlying action commenced with the filing of a complaint by Robert and Effie Bricker against Seminole Kraft to recover for personal injuries allegedly suffered by Robert Bricker due to Seminole Kraft's negligent maintenance of its property in a dangerous condition. Bricker, an employee of BE & K, was on the property in the course of his employment doing work pursuant to a construction contract between Seminole Kraft and BE & K. That contract contains a provision in paragraph 17.1 whereby BE & K agreed to

indemnify and hold Seminole harmless from and against any loss, damage, expense, responsibility and/or liability for all property damage or loss or bodily injury or death resulting from or arising out of Contractor's performance of this Agreement, including all attorneys' fees incurred by Seminole in enforcing the provisions of this indemnity or in connection with any claim or demand anticipated or asserted against Seminole which may be covered under the terms of this indemnity. Contractor shall assume, on behalf of Seminole, the defense of any lawsuit or proceeding brought against Seminole upon any such claim, demand, or right or cause of action, and pay on behalf of Seminole, upon its demand, the amount of any judgment that may be entered against Seminole in connection therewith. This indemnity shall not cover losses caused by Seminole's sole negligence. Contractor's liability under 17.1 shall be limited to the proceeds of an Owner's protective policy (limits and coverage to be as specified in Section 16.2) to be provided by Contractor in the name of Seminole.

Seminole Kraft filed a third-party complaint against BE & K seeking indemnification from BE & K pursuant to the quoted provision for all damages that Seminole Kraft may become liable for to the Brickers. BE & K answered the third-party complaint, denying liability and alleging several affirmative defenses, including (1) allegations that Seminole Kraft was not entitled to indemnification because the contractual provision on which it relied failed to comply with section 725.06, Florida Statutes, and (2) that Bricker's injury was caused by Seminole's sole negligence. Both parties to the third-party action filed motions for summary judgment. Seminole Kraft's motion for partial summary judgment was predicated on the ground that it was entitled to indemnification "against loss arising out of BE & K's performance of the contract so long as the loss is not caused by Seminole's sole negligence" and Bricker was performing work as a BE & K employee pursuant to its construction contract with Seminole Kraft when injured. The question of law to be decided was identified as

whether Seminole Kraft is entitled to indemnification from BE & K for loss incurred by Seminole Kraft as a result of Robert Bricker's injuries and ensuing lawsuit in the event that it is determined that Seminole Kraft was not solely negligent in causing said injuries and that either BE & K or Robert Bricker were negligent in causing said injuries.

The trial court granted Seminole Kraft's motion, ordering that "Seminole Kraft is entitled to Partial Summary Judgment on the issue of joint liability of the Defendant and Third Party Plaintiff and the Third Party Defendant, if these parties are found to be jointly negligent for injury, loss or damage sustained by the Plaintiff." (Emphasis added). BE & K's motion for rehearing was denied and this appellate proceeding followed.

Seminole Kraft has moved to dismiss this proceeding for lack of jurisdiction on grounds that the order granting the motion for partial summary judgment does not constitute an order "determining liability in favor of a party seeking affirmative relief" within the meaning of rule 9.130(a)(3)(C)(iv). Seminole Kraft relies on Travelers Insurance Co. v. Bruns, 443 So.2d 959 (Fla.1984), U.S. Fidelity and Guarantee Co. v. Sloan, 410 So.2d 549 (Fla. 1st DCA 1982), and Ogur v. Mogel, 390 So.2d 105 (Fla. 3d DCA 1980). Seminole Kraft further argues that review by certiorari is not appropriate because BE & K has failed to demonstrate that the trial court's order "constitutes a departure from the essential requirements of law and that BE & K does not have an adequate remedy upon plenary appeal" from final judgment.

Responding pursuant to our order to show cause, BE & K contends that review is appropriate under the cited provision of the appellate rules, relying on Insurance Company of North America v. Querns, 562 So.2d 365 (Fla. 2d DCA 1990), while contending that the cases cited by Seminole Kraft are materially distinguishable. BE & K further argues, alternatively, that review by common law certiorari is proper because the order under review constitutes a departure from the essential requirements of law, citing Sunshine Dodge, Inc. v. Ketchem, 445 So.2d 395 (Fla. 5th DCA 1984). Citing Chappel v. J.D. Scarborough, 224 So.2d 791 (Fla. 1st DCA 1969), for the proposition that "a third-party defendant in an indemnity action cannot be prejudiced in any manner until such time as the third-party plaintiff has suffered the imposition of a judgment against him in favor of the plaintiff," BE & K argues that the order before us departs from the essential requirements of law because such order was entered "before judgment was entered against Seminole Kraft on the 'main claim' by the plaintiff." BE & K contends it will be irreparably prejudiced by this premature entry of partial summary judgment "by precluding it from litigating the issues of whether the indemnity agreement complied with Fla.Stat. Sec. 725.06 and whether the plaintiff's injuries, in the language of the indemnity agreement, resulted from or arose out of BE & K's performance of its construction contract with Seminole Kraft."

Addressing first jurisdiction under rule 9.130(a)(3)(C)(iv), we agree with Seminole Kraft that this is not the type of order granting affirmative relief that falls within the meaning of that rule. In U.S. Fidelity and Guarantee Co. v. Sloan, 410 So.2d 549, this court held that an order that determines the amount of uninsured motorist coverage that exists pursuant to two policies of insurance entered on joint motion for summary...