Blok Builders, LLC v. Katryniok

• Decision Date: 25 April 2018
• Docket Number: No. 4D16–1811,4D16–1811
• Citation: Blok Builders, LLC v. Katryniok, 245 So.3d 779 (Fla. App. 2018)
• Parties: BLOK BUILDERS, LLC d/b/a Ikon Builders, a Florida limited liability company, Appellant, v. Pedro KATRYNIOK, Mastec North America, Inc., a Florida corporation, and BellSouth Telecommunications, LLC, d/b/a AT & T Florida, Appellees.
• Court: Florida District Court of Appeals

245 So.3d 779

BLOK BUILDERS, LLC d/b/a Ikon Builders, a Florida limited liability company, Appellant,

v.Pedro KATRYNIOK, Mastec North America, Inc., a Florida corporation, and BellSouth Telecommunications, LLC, d/b/a AT & T Florida, Appellees.

No. 4D16–1811

District Court of Appeal of Florida, Fourth District.

[April 25, 2018]

Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for appellant.

Kimberly Kanoff Berman of McIntosh Sawran & Cartaya, P.A., Fort Lauderdale, and Michael J. Lynott and Crystal L. Arocha of McIntosh Sawran & Cartaya, P.A., Miami, for appelleesMasTec North America, Inc. and BellSouth Telecommunications, LLC.

ON MOTION FOR CLARIFICATION, REHEARING AND/OR REHEARING EN BANC

WARNER, J.

We deny Appellant's Motion for Clarification, Rehearing and/or Rehearing En Banc, withdraw the previous opinion and substitute the following opinion in its place.

Blok Builders, LLC, appeals a final judgment determining that Blok owes Mastec North America, Inc., and BellSouth Telecommunications, LLC, contractual indemnity and a defense in a personal injury action, as well as awarding attorney's fees.Blok contends that its subcontract with Mastec, which required Blok to indemnify Mastec for its own negligence, did not comply with section 725.06, Florida Statutes(2008), and, thus, its contractual indemnification provisions were unenforceable.The statute, however, does not apply to the contract in this case; therefore, the trial court correctly determined that Blok owed Mastec a duty to indemnify and defend.The trial court also found that Blok must indemnify BellSouth, but neither the contract between Blok and Mastec nor the contract between Mastec and BellSouth requires Blok to indemnify BellSouth.We therefore reverse the trial court's final judgment as to BellSouth.

BellSouth sought to improve its telecommunications services by accessing and altering its network in a project called "Lightspeed Project."As part of the project, it contracted with Mastec to perform all work necessary to provide access to the underground lines located in neighborhood easements.In turn, Mastec then subcontracted with Blok to perform the excavation work necessary for BellSouth to access its previously existing underground utility lines.

After Blok performed excavation near the driveway in one of the neighborhoods covered by the project, a homeowner was walking down his driveway when it suddenly collapsed, causing him to fall and sustain permanent serious injuries.The homeowner sued Blok for damages due to his injuries and then amended his complaint to add Mastec and BellSouth for their own negligence in contributing to the dangerous condition.

Mastec and BellSouth crossclaimed against Blok, alleging that Blok had agreed to contractually indemnify them through the subcontract between Blok and Mastec.The contract between Blok and Mastec contained a provision requiring Blok to indemnify Mastec for Mastec's own negligence:

16.Indemnification. a) Subcontractor [Blok] agrees to indemnify and hold harmless Contractor [Mastec] and its directors, officers, employees and agents (collectively the "Indemnitees") and each of them from and against any loss, costs, damages, claims, expenses (including attorneys' fees) or liabilities, causes of action, lawsuits, penalties, or demands (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or nonperformance of the Work contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default, negligence (whether active or passive) of Subcontractor or its employees, agents or subcontractors, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent, or contributing) by any act, omission, default or negligence (whether active or passive) of the indemnitees, or any of them ... Said indemnity shall include but not be limited to injury or damage which is or is alleged to be caused in whole or in part by any act, omission, default or negligence of Subcontractor or its employees, agents or subcontractors....

c) Where not specifically prohibited by law, Subcontractor further specifically agrees to indemnify and hold harmless the Indemnitees from all Liabilities , by reason of any injury, death, or damage to any person or property whatsoever, caused by, arising from, incident to, or connected with the performance or nonperformance of the work contemplated by this Agreement which is, or is alleged to be, caused in part(whether joint, concurrent, or contributing)or in whole by any act, omission, default, or negligence (whether active or passive) of the Indemnitees .

(emphasis added).

The contract further required Blok to defend any claim arising out of the performance of the contract and brought against the Indemnitees, as well as to pay any costs and attorney's fees incurred by the Indemnitees in defending any action or in enforcing the indemnification agreement.

The agreement between Blok and Mastec incorporated the terms of the contract between Mastec and BellSouth.That agreement contained a similar indemnification provision requiring Mastec to indemnify BellSouth:

Article 9.Indemnity

The Contractor [Mastec] shall indemnify and hold harmless the Company [BellSouth] and its directors, officers, employees and agents (collectively the "Indemnitees ") and each of them from and against any loss, costs, damages, claims, expenses (including attorneys' fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or nonperformance of the work contemplated by this Contract which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default, negligence (whether active or passive) of Contractor or its employees, agents or subcontractors, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them ....

(emphasis added).

Blok contended that the indemnification provisions were invalid because the contract did not comply with section 725.06, Florida Statutes(2008).The statute applies to certain construction contracts which obligate the indemnitor to indemnify the indemnitee for the indemnitee's own negligence.Such a contract is unenforceable unless it contains a monetary limitation on the extent of such liability.Blok contended that because there was no such limitation in the Blok/Mastec contract, the indemnification provision was void and unenforceable.Mastec and BellSouth argued that section 725.06 did not apply to this contract, and in any case, a monetary limitation was contained in the BellSouth/Mastec contract which, through an incorporation clause, applied to the Blok/Mastec contract.

Both sides moved for summary judgment.Ultimately, the trial court entered summary judgment in favor of Mastec and BellSouth, concluding that the contracts required Blok to indemnify and defend both Mastec and BellSouth in the underlying personal injury lawsuit.It also entered an award of attorney's fees to both Mastec and BellSouth.Blok appeals this final judgment.

We review de novo a summary judgment.Overseas Inv. Group v. Wall St. Electronica, Inc. , 181 So.3d 1288, 1291(Fla. 4th DCA2016)(citingVolusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130(Fla.2000) ).De novo review applies to the interpretation of a contract.SeeRoyal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc. , 133 So.3d 1108, 1110(Fla. 3d DCA2014).It also applies to the interpretation of a statute.SeeToler v. Bank of America, Nat'l Ass'n , 78 So.3d 699, 701–02(Fla. 4th DCA2012).

Blok argues that section 725.06, Florida Statutes, applies to its contract, and because the contract contains no monetary limitation on its obligation to indemnify Mastec for Mastec's own negligence, the indemnification provision is unenforceable.Based upon the plain wording of the statute, however, we conclude that section 725.06 does not apply to this contract.

Section 725.06(1) covers contracts for construction as follows:

Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any

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