Kilpatrick v. Ogden Entertainment, Inc., 98-2655.

• Decision Date: 22 November 1999
• Docket Number: No. 98-2655.,98-2655.
• Citation: 745 So.2d 492
• Parties: Clyde Riley KILPATRICK, Appellant, v. OGDEN ENTERTAINMENT, INC., d/b/a Ogden Presents, Appellee.
• Court: Florida District Court of Appeals

745 So.2d 492

Clyde Riley KILPATRICK, Appellant, v. OGDEN ENTERTAINMENT, INC., d/b/a Ogden Presents, Appellee.

No. 98-2655.

District Court of Appeal of Florida, First District.

November 22, 1999.

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.

Robert C. Palmer, III, Pensacola, for Appellee.

PER CURIAM.

Appellant, Clyde Riley Kilpatrick, appeals an order dismissing his complaint against Ogden Entertainment Inc. (Ogden). We affirm.

Appellant was injured in an accident at the Pensacola Civic Center, which is owned by Escambia County, during a concert promoted by Ogden. Appellant and his wife sued Escambia County. A final judgment was rendered in favor of appellant in the amount of $291,244.59 and in his wife's favor in the amount of $20,000.00. Additionally, costs in the sum of $4,260.03 were awarded. Escambia County fully satisfied the wife's judgment and the judgment for costs and paid appellant $100,000.00, the maximum amount of its liability under section 768.28(5), Florida Statutes.

Appellant then instituted an action against Ogden to recover the unpaid balance of his judgment against Escambia County. Appellant alleged that the agreement entered into between Ogden and Escambia County contained an indemnity clause, that he was a third party beneficiary of the agreement, and that Ogden was obligated to pay directly to him the unsatisfied balance of his final judgment.

The trial judge correctly dismissed the action. The provision of the agreement between Escambia County and Ogden relied on by appellant is an indemnity clause by which Ogden agreed to protect, defend, indemnify and hold harmless Escambia County from liability, damages, or expenses. The provision indicates an intent to benefit Escambia County, not third parties. Accordingly, the order on appeal is affirmed.

BARFIELD, C.J., and DAVIS, J., CONCUR.

BROWNING, J., DISSENTS WITH OPINION.

BROWNING, J., dissents.

I respectfully dissent.

I disagree with the majority's determination that the indemnity provisions of the agreement indicate that only Escambia County is intended to be benefited by its agreement with Ogden. This determination requires "quite a stretch" in view of the fact we review the trial court's order granting Ogden's motion to dismiss solely on the allegations of the appellant's complaint and attached agreement to discern the intent of the parties to the agreement. From the complaint and agreement it is apparent that Escambia County and Ogden intended to benefit Escambia County, but it is equally clear that they intended to accomplish this purpose by bestowing a benefit upon undetermined injured third parties who might later assert a claim against Escambia County, as did Kilpatrick. Most enforceable third-party agreements are intended to benefit primarily the parties to the agreement, but this does not prohibit their enforcement by a third party who receives a substantial benefit. Boston Old Colony Ins. Co., v. Gutierrez, 325 So.2d 416 (Fla. 3d DCA 1976). Otherwise, the only instance when a third-party agreement would be enforceable is when a gift is intended to a third party by one of the formal parties to an agreement, with no measurable benefit to either of the formal parties.

While I disagree with the majority's interpretation of the indemnity provisions discussed, another part of the indemnity provision, ignored by the majority, compels reversal of the trial court. The ignored portion of the indemnity provisions provides that Ogden "agrees to pay all ... judgments and settlement, including any amount paid in settlement" rendered against or made by Escambia County to injured third parties. This requirement unequivocally requires Ogden to pay Kilpatrick's judgment and irrefutably rebuts any contention that only Escambia County is intended to be benefitted by the agreement, because Ogden surely did not contract to pay itself a judgment, and Escambia County cannot be a judgment debtor of itself. Thus, this ignored provision can be construed only as a requirement of Ogden to pay any judgment covered by the agreement against Escambia County and thereby benefit injured third parties such as Kilpatrick. The trial court and the majority, I believe, erred by ignoring this requirement.

Furthermore, a consideration of how the indemnity provisions of the agreement are implemented spotlights the substantial benefit intended for injured third parties. Ogden has no responsibility under the indemnity provisions until an injured third party asserts a claim against Escambia County. At that time, Ogden is required to pay all costs of defense, including attorney's fees. If the third party secures a settlement or judgment against Escambia County, Ogden must pay it. The check to satisfy any settlement, or judgment will be payable jointly to Escambia County and the third party. A release will be required by Ogden from the third party upon payment, and Escambia County will transfer its interest in the funds to the third party. The check will be deposited or otherwise disbursed by the third party at his or her discretion. Only Kilpatrick, and not Escambia County, will spend the settlement or satisfaction funds paid by Ogden. These predictable actions reveal a substantial benefit to Escambia County by shielding it from liability, and a corresponding substantial benefit to an injured third party who is the real party in interest as recipient of the funds.

Also, the factual determination of the trial court and the...