Hardage Enterprises, Inc. v. Fidesys Corp., N.V., No. 89-2245

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOBB; COWART, J., and SCHWARTZ, A.R.
Citation570 So.2d 436
Parties15 Fla. L. Weekly D2901 HARDAGE ENTERPRISES, INC., Appellant, v. FIDESYS CORPORATION, N.V., etc., Appellee.
Docket NumberNo. 89-2245
Decision Date29 November 1990

Page 436

570 So.2d 436
15 Fla. L. Weekly D2901
HARDAGE ENTERPRISES, INC., Appellant,
v.
FIDESYS CORPORATION, N.V., etc., Appellee.
No. 89-2245.
District Court of Appeal of Florida,
Fifth District.
Nov. 29, 1990.

Lilburn R. Railey, III and Mary M. Wills of Smith, Mackinnon & Mathews, P.A., Orlando, for appellant.

Terrence William Ackert, Winter Park, for appellee.

COBB, Judge.

This appeal concerns the validity of a declaratory judgment finding that a mutual release executed by the appellant, Hardage Enterprises, Inc., and the appellee, Fidesys Corporation, N.V., was invalid and unenforceable as to any acts of negligence.

In September of 1984, Hardage and Fidesys entered into a construction management agreement with Fidesys as owner and Hardage as construction manager of a hotel complex located in Osceola County, Florida. After construction was completed, a dispute arose between Fidesys and the general contractor concerning alleged construction deficiencies. The dispute was submitted to arbitration before the American Arbitration Association. While the arbitration was proceeding, Hardage and Fidesys entered into a mutual release concerning their rights and obligations.

At the time of the release, Hardage had completed all work on the project. The release stated that

... in consideration of the premises and the mutual promises and covenants herein contained and the sum of $19,308.91 ... each of the parties ... releases and forever discharges the other ... of and from any and all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature, whether heretofore or hereafter accruing, or whether now known or not known

Page 437

to the parties, for or because of any matter or thing done, omitted, or suffered to be done by either of such parties prior to, and including the date hereof, and in any way directly or indirectly arising out of the construction management agreement between the parties and all of the transactions and occurrences above-described.

In 1988, Fidesys filed an action for declaratory relief, seeking a declaration regarding the validity and enforceability of the release. Hardage filed its answer and affirmative defenses, asserting that Fidesys' action was barred by the existence of the release and that the complaint failed to state a cause of action for declaratory relief. Thereafter, Fidesys filed a motion for judgment on the pleadings and a motion for summary judgment. Fidesys' affidavit in support of its motion for summary judgment, alleged that Hardage committed negligence while it was construction manager, but that Fidesys did not become aware of the negligence until after the release. It also alleged that the question of the negligence of Hardage "was never addressed or intended to be addressed by the parties in connection with the release."

Hardage filed a memorandum of law in opposition to Fidesys' motions, with a supporting affidavit submitted by the president of Hardage, Inc. The affiant claimed that the purpose of the release was to discharge all parties to the construction management agreement from any and all liabilities that may have arisen. Moreover, the release contemplated a termination of the relationship between Hardage and Fidesys, and a complete severance of all obligations under the construction management agreement.

Thereafter, the trial court entered a final order of summary judgment and a final order granting the motion for judgment on the pleadings. The court ruled that the release does not "clearly and unequivocally" release Hardage from negligence claims. Since there were no material facts in dispute, Fidesys was entitled to judgment as a matter of law; thus, its claims against Hardage arising from the latter's negligence were not barred. Hardage then filed the instant appeal.

The judgment of the trial court is based upon the erroneous assumption that a release will not bar claims of negligence merely because it does not specifically contain the word "negligence." There are no words of art required in a release if the intent of the parties is apparent from the language used. No Florida appellate court has ever held that the word "negligence" must be included in a release for it to bar negligence claims. According to the great weight of authority in this country, specific wording is not a precondition to finding that a release precludes negligence claims. See, e.g., LeSueur Creamery, Inc. v. Haskon, Inc., 660 F.2d 342, 352 (8th Cir.1981), cert....

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21 practice notes
  • Adloo v. H.T. Brown Real Estate, Inc., No. 143
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...expressed. Id. at 709. To be sure, as the weight of authority makes clear, Hardage Enterprises, Inc. v. Fidesys Corporation, 570 So.2d 436, 437 (Fla.App.1990), the exculpatory clause need not contain or use the word "negligence" or any other "magic words." Id.; Audley, 6......
  • Bellsouth Telecommunications, Inc. v. Kerrigan, No. 3:97CV554.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • May 28, 1999
    ...of equal bargaining power and the provisions are clear and unambiguous." Page 1319 Hardage Enterprises, Inc. v. Fidesys Corp. ., 570 So.2d 436, 439 (Fla. 5th DCA 1990) (citations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, Inc., 427 So.2d 332 (Fla. 3d DCA 1983). T......
  • Alack v. Vic Tanny Intern. of Missouri, Inc., No. 78423
    • United States
    • United States State Supreme Court of Missouri
    • May 28, 1996
    ...even without the use of the word "negligence" in the release. Id. See also Hardage Enterprises v. Fidesys Corp., N.V., 570 So.2d 436, 437 (Fla.App.1990) (holding that the specific word "negligence" is not needed and "any and all claims" language will sufficient......
  • Mazzoni Farms, Inc. v. EI DuPont De Nemours and Co., No. SC94846
    • United States
    • United States State Supreme Court of Florida
    • June 8, 2000
    ...the releasing party was unaware of the defect at the time the agreement was executed. See Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So.2d 436 (Fla. 5th DCA 1990) (enforcing a general release even though the party discovered the negligence after executing the release); Braemer Isle C......
  • Request a trial to view additional results
21 cases
  • Adloo v. H.T. Brown Real Estate, Inc., No. 143
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...expressed. Id. at 709. To be sure, as the weight of authority makes clear, Hardage Enterprises, Inc. v. Fidesys Corporation, 570 So.2d 436, 437 (Fla.App.1990), the exculpatory clause need not contain or use the word "negligence" or any other "magic words." Id.; Audley, 640 A.2d at 778; Alac......
  • Bellsouth Telecommunications, Inc. v. Kerrigan, No. 3:97CV554.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • May 28, 1999
    ...persons of equal bargaining power and the provisions are clear and unambiguous." Page 1319 Hardage Enterprises, Inc. v. Fidesys Corp. ., 570 So.2d 436, 439 (Fla. 5th DCA 1990) (citations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, Inc., 427 So.2d 332 (Fla. 3d DCA 1983)......
  • Alack v. Vic Tanny Intern. of Missouri, Inc., No. 78423
    • United States
    • United States State Supreme Court of Missouri
    • May 28, 1996
    ...liability even without the use of the word "negligence" in the release. Id. See also Hardage Enterprises v. Fidesys Corp., N.V., 570 So.2d 436, 437 (Fla.App.1990) (holding that the specific word "negligence" is not needed and "any and all claims" language will sufficiently bar a negligence ......
  • Mazzoni Farms, Inc. v. EI DuPont De Nemours and Co., No. SC94846
    • United States
    • United States State Supreme Court of Florida
    • June 8, 2000
    ...the releasing party was unaware of the defect at the time the agreement was executed. See Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So.2d 436 (Fla. 5th DCA 1990) (enforcing a general release even though the party discovered the negligence after executing the release); Braemer Isle C......
  • Request a trial to view additional results

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