Federal Ins. Co. v. Western Waterproofing Co. of America, BF-158

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; PER CURIAM
Citation500 So.2d 162,11 Fla. L. Weekly 1315
Decision Date12 June 1986
Docket NumberBF-158
Parties11 Fla. L. Weekly 1315 FEDERAL INSURANCE COMPANY, Appellant, v. WESTERN WATERPROOFING COMPANY OF AMERICA, Midsouth Glass Company, and Cast-Crete Corporation of Kissimmee, Appellees. NO.

Page 162

500 So.2d 162
11 Fla. L. Weekly 1315
FEDERAL INSURANCE COMPANY, Appellant,
v.
WESTERN WATERPROOFING COMPANY OF AMERICA, Midsouth Glass Company, and Cast-Crete Corporation of Kissimmee, Appellees.
NO. BF-158.
District Court of Appeal of Florida,
First District.
June 12, 1986.
On Motion for Rehearing Sept. 11, 1986.

Page 163

Gary R. Planck of Welbaum, Zook, Jones & Williams, Orlando, for appellant.

Charles T. Boyd, Jr. of Boyd, Jenerette, Staas, Joos, Williams & Felton, P.A., Jacksonville, for appellee Western Waterproofing Co. of America.

Emery H. Rosenbluth, Jr. and John M. Brennan of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellee Midsouth Glass Co.

Ronald R. Oberdier of Cowles, Coker & Myers, Jacksonville, Roy B. Dalton, Jr. and Harry S. Coverston of Hurt, Parrish & Dalton, P.A., Orlando, for appellee Cast-Crete Corp. of Kissimmee.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellant's motion for rehearing and the replies thereto, we vacate our prior opinion and substitute the following. Appellant (third-party plaintiff below) appeals from a final order dismissing with prejudice Counts I-IV of the Sixth Amended Third Party Complaint, in construction contract litigation, contending that the trial court erred in dismissing its claims for contractual indemnity against three subcontractors in Counts I, II, and IV, and in dismissing its claim for common law indemnity in Count III. We reverse as to Counts I, II, and III, but affirm as to Count IV.

Counts I, II, and IV, seeking contractual indemnity, were apparently dismissed in part on the ground that the indemnity contract between the general contractor and subcontractor did not contain either a monetary limitation on the extent of damages, or specific consideration for indemnity as required by Section 725.06, Florida Statutes (1972). That section reads as follows:

725.06 Construction contracts; limitation on indemnification.--Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract or its performance shall be void and unenforceable unless:

(1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or

(2) The person indemnified by the contract gives a specific consideration to the indemnitor for the indemnification that shall be provided for in this contract and section of the project specifications or bid documents, if any.

Appellant argues, among other things, that Section 725.06 applies only to indemnification against one's own negligence and thus does not have any application to the specific facts at bar. We agree.

Specifically, Section 725.06 states in relevant part as applied to the factual scenario before us: "Any portion of any agreement or contract for, or in connection with, any construction, ... between ... [a] general contractor ... [and] subcontractor ..., wherein any party [general contractor/indemnitee] ... obtains indemnification from liability for damages to persons or property caused in whole or in part by any act,

Page 164

omission, or default of that party [general contractor/indemnitee] arising from the contract ... shall be void ... unless ..." We interpret this statute to apply only in circumstances wherein a party by contract seeks to obtain indemnification from another party for its own active negligence. Under circumstances in which a party seeking indemnity is shown to be actively negligent, we consider that the legislature intended that before such party may be indemnified for its own negligence, it must satisfy either of the two above exceptions set forth in Section 725.06.

In reaching this conclusion, we are not unaware of the general rule that although contracts of indemnification which protect an indemnitee against its own negligence are valid in Florida, they are generally looked upon with disfavor. Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979); Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3rd DCA) cert. den. 166 So.2d 754 (Fla.1964). Moreover, in a very recent opinion, Cothron, Inc. v. Upper Keys Marine Construction, Inc., 480 So.2d 136 (Fla. 3rd DCA 1985), the Third District Court of Appeal determined that Section 725.06 only governs a situation wherein the general contractor/indemnitee seeks indemnification from the subcontractor for the general contractor's negligence. Cf. Westinghouse Electric Corp. v. Turnberry Corp., 423 So.2d 407 (Fla. 4th DCA 1982) rev. den. 434 So.2d 889 (Fla.1983) (section 725.06 found applicable to an agreement that specifically stated in clear and unequivocable terms that the subcontractor was to be indemnified for its own wrongdoing); A-T-O, Inc. v. Garcia, 374 So.2d 533 (Fla. 3rd DCA 1979) (section 725.06 held to apply and therefore voided an indemnity agreement whereby an employer agreed to indemnify A-T-O (manufacturer's buyer) against the consequences of A-T-O's own negligence). In cases, however, wherein the subcontractor enters into a contractual agreement to indemnify the general contractor for negligence caused by the subcontractor, Section 725.06 has no application. Cothron, Inc. v. Upper Keys Marine Construction, Inc., 480 So.2d at 137. 1

Therefore, the proper inquiry in this case is whether the indemnity provisions at bar come within the statute; that is whether the clauses provide indemnification to the indemnitee (general contractor-appellant) for its own negligence. We find that in two of the appellee's indemnification agreements (Mid-South Glass Co. and Western Waterproofing Co.), Section 725.06 does not apply since the clauses do not absolve the indemnitee (appellant) for its own negligence. Rather the clauses state:

Page 165

SIXTH: The Subcontractor shall assume the defense of...

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8 practice notes
  • Dade Cty. Sch. Bd. v. Radio Station WQBA, No. 91,767.
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1999
    ...5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. 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......
  • Traditions Senior Mgmt., Inc. v. United Health Adm'rs, Inc., Case No: 8:12-cv-2321-T-30MAP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 27, 2013
    .... who was at fault." Dade County School Bd. v. Radio Station WQBA, 731Page 9So.2d at 642; Federal Ins. Co. v. Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986). "Fault" refers to legal fault that arises from a valid claim. Id. Finally, a "special relationship" must exist bet......
  • Tank Tech, Inc. v. Valley Tank Testing, L.L.C., Case No. 2D16–2100
    • United States
    • Court of Appeal of Florida (US)
    • April 20, 2018
    ...5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. 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). Additionall......
  • Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc., No. 2D11–6009.
    • United States
    • Court of Appeal of Florida (US)
    • April 24, 2013
    ...because Pilot was seeking indemnification from Babe's for Pilot's own negligence. See Fed. Ins. Co. v. W. Waterproofing Co. of Am., 500 So.2d 162, 164 (Fla. 1st DCA 1986) (holding that section 725.06 operates to bar indemnification “in circumstances wherein a party by contract seeks to obta......
  • Request a trial to view additional results
8 cases
  • Dade Cty. Sch. Bd. v. Radio Station WQBA, No. 91,767.
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1999
    ...5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. 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......
  • Traditions Senior Mgmt., Inc. v. United Health Adm'rs, Inc., Case No: 8:12-cv-2321-T-30MAP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 27, 2013
    .... who was at fault." Dade County School Bd. v. Radio Station WQBA, 731Page 9So.2d at 642; Federal Ins. Co. v. Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986). "Fault" refers to legal fault that arises from a valid claim. Id. Finally, a "special relationship" must exist bet......
  • Tank Tech, Inc. v. Valley Tank Testing, L.L.C., Case No. 2D16–2100
    • United States
    • Court of Appeal of Florida (US)
    • April 20, 2018
    ...5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. 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). Additionall......
  • Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc., No. 2D11–6009.
    • United States
    • Court of Appeal of Florida (US)
    • April 24, 2013
    ...because Pilot was seeking indemnification from Babe's for Pilot's own negligence. See Fed. Ins. Co. v. W. Waterproofing Co. of Am., 500 So.2d 162, 164 (Fla. 1st DCA 1986) (holding that section 725.06 operates to bar indemnification “in circumstances wherein a party by contract seeks to obta......
  • Request a trial to view additional results

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