Fairchild for Use and Benefit of State Farm Fire and Cas. Co. v. W. O. Taylor Commercial Refrigeration and Elec. Co., Inc.
| Decision Date | 23 September 1981 |
| Docket Number | No. 81-26,81-26 |
| Citation | 403 So.2d 1119 |
| Parties | Milty A. FAIRCHILD, for the Use and Benefit of STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. W. O. TAYLOR COMMERCIAL REFRIGERATION AND ELECTRIC CO., INC., and West AmericanInsurance Company, Appellees. |
| Court | Florida District Court of Appeals |
James O. Driscoll of Driscoll, Langston, Layton & Kane, P.A., Orlando, for appellant.
Robert A. Hannah of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
The appellant (State Farm Fire and Casualty Company) appeals from a final summary judgment denying it the right to be subrogated to the rights of its insured (Milty A. Fairchild) against the appellees (W. O. Taylor Commercial Refrigeration and Electrical Co. and West American Insurance Company, Taylor's liability carrier). Taylor entered into a contract with Fairchild and in accordance with the contract installed central air conditioning equipment in Fairchild's home in 1972. The contract required Fairchild to carry "fire, tornado, and other necessary insurance." In 1977 a fire occurred in the residence, which did extensive damage, and which was allegedly caused by Taylor's negligent installation and wiring of the air-handling equipment in the attic. State Farm paid its insured, Fairchild, and filed this subrogation suit. Taylor argues the requirement in the contract that the owner carry insurance bars recovery from it. We disagree and reverse.
The contract entered into by Fairchild and Taylor was a one page printed form. It was captioned a "Proposal" submitted by Taylor and accepted by Fairchild. It described the kind of air conditioning equipment to be installed, the locations of outlets and ducts, and the total price. The payment was due "upon operation of units." It provided limited warranties for one and four years on "parts." In very small print, at the bottom of the page, next to the block where Taylor signed appeared the following paragraph:
All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra cost will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays, beyond our control. Owner to carry fire, tornado, and other necessary insurance. Our workers fully covered by workmen's compensation insurance.
It is well established that parties to a contract may mutually agree that one party will obtain insurance as part of the bargain, to shift the risk of loss from both of them to the insurance carrier. If loss occurs, they are deemed to have agreed to look solely to the insurance, without regard to which party was negligent, and subrogation is not allowed. Housing Investment Corp. v. Carris, 389 So.2d 689 (Fla. 5th DCA 1980); Smith v. Ryan, 142 So.2d 139 (Fla. 2d DCA 1962). But it is equally well established that a limitation of liability for one's negligent acts will not be inferred unless the intention is expressed in unequivocal terms. Tout v....
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