Fidelity and Cas. Co. of New York v. L. F. E. Corp.

• Decision Date: 14 March 1980
• Docket Number: No. 79-1342,79-1342
• Citation: 382 So.2d 363
• Parties: The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. L. F. E. CORPORATION and J. E. Greiner Engineering Sciences, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 363

382 So.2d 363

The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. L. F. E. CORPORATION and J. E. Greiner Engineering Sciences, Inc., Appellees.

No. 79-1342.

District Court of Appeal of Florida, Second District.

March 14, 1980.

Rehearing Denied April 14, 1980.

J. Brent Walker and James M. Shuler of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for appellant.

David J. Kadyk and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee, L. F. E. Corporation.

Judith W. Simmons of Harrison, Greene, Mann, Rowe, Stanton & Mastry, Tampa, for appellee, J. E. Greiner Engineering Sciences, Inc.

CAMPBELL, Judge.

From an adverse final judgment granting motions to dismiss its third amended third party complaint, the appellant, The Fidelity and Casualty Company of New York, takes this appeal.

The original proceeding below was brought against the appellant by the Hillsborough County Aviation Authority as plaintiff (hereinafter referred to as "Authority"), on a cause of action arising out of an insurance policy issued by the appellant insuring Authority against damage by fire, lightning, windstorm or other perils at Tampa International Airport, owned and operated by Authority. Appellant then filed a third party complaint against the appellee L.F.E. Corporation. L.F.E. was the contractor that originally installed the revenue control equipment for the parking lots at Tampa International Airport pursuant to contract documents and specifications for that equipment prepared by the appellee, J. E. Greiner Engineering Sciences, Inc., pursuant to its contract with Authority to act as the consulting engineer on the entire Tampa International Airport project.

Authority and the appellant subsequently settled their differences and an order of dismissal of the original complaint was entered by the trial court leaving only the third party complaint against L.F.E. Thereafter, an amended third party complaint was filed by the appellant alleging separate causes of action against both L.F.E. and Greiner. Motions to dismiss the amended third party complaint for failure to state a cause of action were filed by both L.F.E. and Greiner and were granted. Appellant then filed a second amended third party complaint, again alleging separate causes of action against both L.F.E. and Greiner, and motions to dismiss for failure to state a cause of action were again granted by the trial court. Appellant then filed its third amended third party complaint, again alleging separate causes of action against both L.F.E. and Greiner, and the court then entered its final judgment granting motions to dismiss again filed by both L.F.E. and Greiner for failure to state a cause of action, the final judgment providing that appellant take nothing by its third party complaint and that costs be assessed as thereafter to be taxed in favor of the appellees and against the appellant.

L.F.E.'s contract with Authority for the installation of the revenue control system was apparently entered into on December 5, 1972, and, though it is not clear in the record, was apparently completed prior to December of 1973.

After L.F.E. had installed the revenue control system, Greiner, as a result of conferences with Authority, wrote to Authority on December 21, 1973, a letter attached as Exhibit "A" to appellant's third amended third party complaint. In that letter Greiner recommended certain steps to be taken to improve the lightning protection for the revenue control system. Thereafter, on February 4, 1974, Greiner wrote to Authority a letter attached as Exhibit "A" to the third amended third party complaint, informing Authority that Greiner was proceeding with the preparation of the contract documents for the work to be done to improve the lightning protection for the revenue control system and that they would bill for their work in accordance with their agreement with Authority dated September 6, 1966, and the work would be performed under their Contract Number 6720-0100. Bids were then solicited for the installation of the lightning protection system pursuant to the contracts and specifications prepared by Greiner and a contract for that installation was entered into on the 25th of Aprilil, 1974, between Authority and the Howard P. Foley Company (hereinafter referred to as "Foley"). This lightning control system installed by Foley was accepted as complete on June 27, 1974.

Authority's original complaint against the appellant alleges lightning strikes at Tampa International Airport causing damages to the revenue control system on June 4, 1974; August 26, 1974; September 18, 1974; June 2, 18 and 24, 1975; July 11, 15 and 30, 1975; August 8 and 15, 1975; and September 6, 1975. Appellant's third amended third party complaint alleges that appellant indemnified Authority for losses sustained from lightning strikes causing damage to the revenue control system prior to May 18, 1978. Count I of appellant's third amended third party complaint applies only to L.F.E., and in essence alleges that L.F.E. breached its contract with Authority by failing to install and construct the revenue control system so as to operate within the performance requirements of the specifications. Appellant admits that L.F.E. installed the system as required by the specifications and contract prepared by Greiner, but takes the position in its third amended third party complaint that L.F.E. should have gone further and foreseen the need for a lightning protection system as allegedly required by Section 20-04 of L.F.E.'s contract with Authority. That section of the contract is referred to by the parties as the "local conditions" clause and reads as follows:

20-04 Examination of Site of the Work, Contract Documents, and Local Conditions

The Bidder is required to examine carefully the site of the proposed work, the Proposal, Plans, Specifications, and Contract Forms. He shall assume full responsibility for having familiarized himself with the nature and extent of the Contract Documents, work, locality, and local conditions that may in any manner affect the work to be done. The submission of a Proposal shall be prima facie evidence that the Bidder has complied with this requirement.

Appellant, by its alleged cause of action against L.F.E., interprets that clause as requiring L.F.E. to familiarize itself with local conditions to the extent that L.F.E. should have been required to make design and specification changes other than those specified by Greiner if necessary to protect against lightning strikes.

We feel that the trial judge was correct in dismissing Count I as failing to state a cause of action against L.F.E.

Count II of appellant's third amended third party complaint also applies only to L.F.E. In that Count appellant charges that L.F.E. had some duty to install the revenue control system to withstand the effects of lightning strikes even though the contract specifications prepared by Greiner did not so require, and further alleges that in installing the system without such protection, L.F.E. negligently breached a duty owed by L.F.E. to Authority.

We also feel that the trial judge was correct in dismissing Count II as failing to state a cause of action against L.F.E.

Count III of appellant's third amended third party complaint applies only to Greiner. It alleges that Greiner entered into a contract with Authority on September 9, 1965, to furnish certain engineering services in connection with the construction of the airport terminal facilities at Tampa International Airport, and that in the performance of those obligations it prepared the contract documents and specifications for the revenue control system. It further alleges that on or after December 21, 1973, Greiner voluntarily undertook to design a lightning protection system for Authority which would provide proper shielding for the revenue control system, and that on April 25, 1974, in reliance upon those recommendations and designs, Authority executed the contract with Foley. Count III further alleges that the lightning protection system was constructed and installed according to the system designed by Greiner, and that thereafter as a result of the negligent design of the lightning control system by Greiner, Authority suffered damages by lightning strikes which were subsequently indemnified by the appellant. Count III also alleges Greiner had a duty to use a level of care required of a design professional in designing a lightning protection system and that it failed to use that level of care required of such...