City of Deland v. Dri-Clime Lamp Corp.

• Decision Date: 18 August 1977
• Docket Number: No. Z-266,DRI-CLIME,Z-266
• Citation: 348 So.2d 1239
• Parties: CITY OF DELAND, a Municipal Corporation, Appellant, v.LAMP CORP., a Foreign Corporation; Keller Kitchen Cabinets, Inc., a Florida Corporation, and Air Control Products, Inc., a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1239

348 So.2d 1239

CITY OF DELAND, a Municipal Corporation, Appellant, v. DRI-CLIME LAMP CORP., a Foreign Corporation; Keller Kitchen Cabinets, Inc., a Florida Corporation, and Air Control Products, Inc., a Florida Corporation, Appellees.

No. Z-266.

District Court of Appeal of Florida, First District.

Aug. 18, 1977.

William B. Wilson and Walton B. Hallowes, Jr. of Maguire, Voorhis & Wells, Orlando, Larry Sands, Daytona Beach, for appellant.

John C. Briggs and Hubert W. Williams of Robertson, Williams, Duane & Lewis, Orlando, Alfred A. Green, Jr., William E. Loucks, Daytona Beach, for appellees.

McCORD, Chief Judge.

City of Deland, appellant here, plaintiff below, appeals final judgments against appellant and in favor of appellees Dri-Clime Lamp Corporation, Keller Kitchen Cabinets, Inc., and Air Control Products, Inc., in an action brought by appellant against appellees on theories of negligence and breach of implied warranty. The suit resulted from a fire which destroyed a building leased by the City to Keller. Appellee Air Control was a guarantor of performance by Keller of its lease. The leased building was a former hangar of the Navel Air Station located outside of Deland which was conveyed by the United States Government to the City of Deland with two additions subsequently constructed by the City.

Keller used the property for the manufacture of wooden kitchen cabinets. The manufacturing process involved the staining and sealing of the cabinets with flammable material. Keller had installed a motorized wooden slat conveyor to be used in its manufacturing process, and the flammable stains and sealers tended to accumulate on the wooden slats. Keller purchased from appellee Dri-Clime Lamp Corporation three infra-red drying ovens to accelerate the drying process of the stain and sealer. These ovens were "U" shaped devices that fit over the existing conveyors. They were delivered to Keller in a subassembled state and were assembled on the site by Keller employees under the supervision of a Dri-Clime representative. The fire apparently started from an electric malfunction of these drying ovens. The building contained a sprinkler system that had been inoperative during the entire time Keller occupied the premises. Prior to the fire, the inoperative sprinkler system was discussed at a City Council meeting, but the City decided not to spend $400 per year which would be necessary to maintain the system and left it inoperative.

When the fire started, Keller employees first attempted to extinguish it used CO 2 fire extinguishers. Their efforts failed due to a fan which prevented effective use of the extinguishers. Keller employees then went to two collapsible-type water fire hoses and pulled them out approximately one foot and found no water coming out of them. The Deland Fire Department was called but was unable to effectively fight the fire. The deceased fire chief of Deland testified, by way of earlier deposition, that he had a duty to inspect the building but was never requested to do so by either the City Manager or the Airport Manager, although he did assist Keller with its firefighting procedures at Keller's request. At the close of appellant City's evidence, appellee Keller renewed a previous motion to dismiss which had been denied before trial. It was based upon appellee Keller's first affirmative defense by which it contended that under the terms of the lease, the City's only recovery for loss it suffered due to the destruction of the premises by fire would be the recovery of the insurance maintained by Keller to protect the City from such fire loss. We agree and reverse. The motion to dismiss should have been granted.

At the close of all evidence, all parties moved for directed verdicts and the motions were denied. The jury returned its verdict in favor of the City and against the defendants and assessed total damages in the amount of $150,000. It apportioned negligence of the respective parties as follows: Dri-Clime 0 %; Keller and Air Control 50 %; City of Deland 50 %. Final judgment was entered in favor of Dri-Clime. The City had received $100,000 insurance proceeds for the fire loss from the policy maintained by Keller, as was required by Keller under the terms of the lease. The court set off in favor of Keller the $100,000 insurance proceeds against Keller's and Air Control's 50 % of the total verdict and entered final judgment in favor of appellees Keller and Air Control Products. The City was thus left with a $50,000 deficit between the insurance proceeds and the total damages found by the jury.

The City contends there was no negligence on its part, and that the trial court therefore erred in not granted its motion for a directed verdict. It contends that the sole cause of the fire and its loss was negligence of appellees; that the trial court erred in setting off the proceeds of the insurance in favor of appellees Keller and Air Control. We find no error as to either contention. As stated heretofore, Keller's motion to dismiss should have been granted. Negligence should not have been an issue. The lease provided as follows:

"XVI. INSURANCE.

Tenant shall maintain insurance, during the term of this lease, with such insurers and coverages, and in such amounts as shall be approved by the Landlord, covering and insuring:

a. * * *

b. The Demised Premises against loss by fire, . . . to the extent of the fair insurable value thereof, for the mutual benefit of Landlord and Tenant, and for all moneys collected from such insurance shall be used and applied toward full compliance with the obligations of the Tenant under the 'Repairs Clause' of this lease or of the Landlord under the 'Damages Clause' of this lease, unless this lease is cancelled by Landlord pursuant to the 'Damages...