J. A. Jones Const. Co. v. Zack Co.
| Decision Date | 03 March 1970 |
| Docket Number | No. 69--404,69--404 |
| Citation | 232 So.2d 447 |
| Parties | J. A. JONES CONSTRUCTION CO., Appellant, v. The ZACK CO. and H. H. Robertson Company, Appellees. |
| Court | Florida District Court of Appeals |
Smathers & Thompson and James L. Armstrong III, Miami, for appellant.
Feibelman, Friedman, Hyman & Britton, Blackwell, Walker & Gray and James E. Tribble, Miami, for appellees.
Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.
This appeal is by a contractor, who with its subcontractors (the appellees) was sued for property damage claimed to have resulted from their failure to properly perform a construction contract, from an order denying and dismissing the contractor's cross-claim against the subcontractors to be reimbursed for its expenses in defending itself in the main action, under an indemnity agreement made by the subcontractors.
The record, which is in the form of a stipulation, reveals the following. The appellant, J. A. Jones Construction Co., herein referred to as Jones, entered into a contract with Eastern Airlines, Inc. for the construction of a hangar. Jones made subcontracts with the appellees Zack Co. and H. H. Robertson Company by which they undertook to perform the part of the construction contract which related to the roof and siding of the hangar building. The subcontracts contained an agreement by which the subcontractors, respectively, indemnified Jones against liability or claims for damage to persons or property 'arising from accidents' which occurred 'in connection with the subcontractor's work,' or which were 'occasioned by the subcontractor.' In addition, the subcontractors thereby agreed to defend suits brought against the contractor 'on account of any such accidents' and to reimburse the contractor for any expenditures the latter should incur by reason thereof. 1
Construction of the hangar was completed and the building was accepted by Eastern on June 18, 1963. Thereafter, in the course of a hurricane on August 26--27, 1964, Eastern suffered substantial property damage to the roof and siding of the building.
Eastern informed Jones that it intended to hold Jones responsible for the damage to the building. Jones, in turn, notified the subcontractors of the claim made against it. When the contractor and subcontractors disclaimed responsibility for the damage, Eastern filed an action in the circuit court of Dade County, for use and benefit of its insurer, to recover for the damage to the building.
The action by Eastern was brought against the contractor and the surety on the contractor's performance bond, and against the subcontractors Zack and Robertson. The complaint alleged that the damage to the building, which happened during the hurricane, was the result of failure of the contractor and subcontractors to perform the work in accordance with the terms and specifications of the construction contract. The amount of the damage to the building was alleged to be $63,492.79, for which sum Eastern sought recovery against the defendants.
Upon being served with a summons and a copy of the complaint, Jones made demand upon the subcontractors Zack and Robertson to undertake its defense, and to hold it harmless from the damages sought against it by Eastern. The subcontractors rejected that demand by Jones. Thereupon Jones employed attorneys who proceeded to defend it in the cause.
By evidence produced on discovery it was revealed that the damage to its building for which Eastern sought recovery was to a portion or portions thereof which were constructed by Zack and Robertson under their subcontracts. Thereupon, Jones filed a cross-claim against Zack and Robertson, seeking indemnity for any damages which might be adjudged against it in the case, and to be reimbursed by the subcontractors for its costs and expenses in its defense of the suit. By stipulation, trial of the cross-claim was deferred until after trial of the plaintiff's case. On trial of the latter before a jury, a verdict was rendered in favor of the defendants and judgment was entered thereon. The plaintiff (Eastern) appealed, and this court affirmed (Eastern Air Lines, Inc. v. J. A. Jones Construction Co., 223 So.2d 332).
It was stipulated in the record that in the trial of the case Eastern attributed the cause of the damages to the building to fault of the subcontractors and sought to recover against Jones on the basis of vicarious liability. Following rendition of the verdict for the defendants, Jones pressed for judgment on its cross-claim against Zack and Robertson for the amount it had reasonably and necessarily paid or incurred in defending itself in the main action, based on the agreement of the subcontractors to pay the same. See footnote No. 1. The trial court held that Jones was not entitled to be reimbursed therefor by the subcontractors, and granted judgment in favor of the cross-defendants on the cross-claim. This appeal followed.
The appellant Jones contends the trial court was in error in ruling that the damage to the building was not one covered by or within the intent of the indemnity agreement, and therefore that Jones was not entitled to be reimbursed for its defense expense. The appellees contend the trial court ruled correctly on the cross-claim because the failure or collapse of the roof and siding of the hangar in the course of the hurricane did not constitute damage to the property arising from an accident.
Those adverse contentions of the parties present the question of whether the claim asserted in the suit by Eastern was for damage of the character covered by the indemnity agreement. We hold that it was. The portions of the building which were damaged were constructed by the subcontractors. The basis of Eastern's claim was that the damage resulted from the failure to properly perform such construction. The damage to the roof and siding of the building in the hurricane was an event which, under the circumstances, was unusual and unexpected, and in our view was in the category of an accidental happening or occurrence within the meaning and intent of the agreement.
Vol. 1 Bouv.Law Dict., Rawle's Third Revision, p. 101, defines accident as An earlier edition of Bouvier's...
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...parties and to give effect to that intention if it can be done consistently with legal principles." J.A. Jones Constr. Co. v. Zack Co., 232 So.2d 447, 449-450 (Fla. 3rd DCA 1970). "To ascertain the real intent, the language used, the subject-matter, and the purpose designed may be considere......
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...v. Southern Bell Telephone & Telegraph Co., 635 So.2d 74, 78 (Fla.Dist.Ct. App.1994), and J.A. Jones Construction Co. v. Zack Co., 232 So.2d 447, 450 (Fla. Dist.Ct.App. 1970), which address indemnification agreements that specifically state that the indemnitor has to "defend" the indemnitee......
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Sephora United States, Inc. v. Palmer, Reifler & Assocs., P.A.
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