Leonard L. Farber Co., Inc. v. Jaksch

• Decision Date: 09 July 1976
• Docket Number: No. 75--838,75--838
• Citation: 335 So.2d 847
• Parties: LEONARD L. FARBER COMPANY, INC., a New York Corporation, Appellant, v. Hilda JAKSCH, a widow, and Vandermark, Inc., a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 847

335 So.2d 847

LEONARD L. FARBER COMPANY, INC., a New York Corporation, Appellant, v. Hilda JAKSCH, a widow, and Vandermark, Inc., a Florida Corporation, Appellees.

No. 75--838.

District Court of Appeal of Florida, Fourth District.

July 9, 1976.

Rehearing Denied Aug. 27, 1976.

Henry Burnett of Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami, for appellant.

Martin J. Sperry of Carey, Dwyer, Austin, Cole & Selwood, P.A., Fort Lauderdale, for appellees.

ALDERMAN, Judge.

Leonard L. Farber Company, Inc., the cross-claimant below, timely appeals a final judgment denying its cross-claim for indemnity against the cross-defendant, Vandermark, Inc. The original plaintiff, Hilda Jaksch, is not involved in this appeal.

Farber, as owner and lessor of a shopping mall, and Vandermark, as lessee, were jointly sued by Jaksch, who sustained injury when she slipped on a piece of sausage lying on a common walkway within the mall. The complaint alleges that Vandermark was negligent in the procedure used in dispensing free samples of the sausage and that Farber was negligent in failing to reasonably maintain the public area of the mall. The slip and fall occurred a few feet from the entrance to Vandermark's store.

Farber's cross-claim for indemnity is based upon the terms of the written lease agreement between the parties. The cross-claim also alleges damages as a result of Vandermark's failure to provide liability insurance for the benefit of Farber, as provided under the lease.

Prior to the trial, the negligence action was settled with each defendant paying $10,000 to Jaksch, without prejudice to their respective rights against each other.

The pertinent provisions of the lease agreement provide:

'37. INDEMNITY: (a) Lessee shall indemnify LESSOR and save it harmless from suits, actions damages, liability and expense in connection with loss of life, bodily or personal injury or property damage arising from or out of any occurrence in, upon or at or from the Demised Premises or any part thereof, or occasioned wholly or in part by any act or omission of Lessee; its agents, contractors, employees, servants, invitees, licensees or concessionaries, including the sidewalks and common areas and facilities within the Shopping Center development; * * *'

'Addendum to Paragraph 37--Anything contained in Paragraph 37 hereof to the contrary notwithstanding, Lessor shall not be relieved of any liability resulting solely from the ngligence of Lessor or of its agents or employees.'

'38. INSURANCE: Lessee shall maintain at its own cost and expense * * * (b) PUBLIC LIABILITY INSURANCE on an occurrence basis with minimum limits of liability in an amount of Five Hundred Thousand ($500,000) Dollars for bodily injury * * *.'

'40. INSURED'S WAIVER, NOTICE: Any insurance procured by Lessee as herein required shall be issued in the name of Lessor and Lessee by a company licensed to do business in the state where the Shopping Center is located * * *.'

It should be understood that the issues on this appeal are limited to contractual indemnity. Farber is not asserting or seeking a right of contribution against a joint tort-feasor. No claim is made under the active-passive tort-feasor doctrine. Farber is seeking indemnity for its loss under the 'hold harmless' provisions of the Lease Agreement.

The present case is distinguishable from University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). There the Supreme Court held that an agreement to indemnify landlord 'against any and all claims' did not disclose an intention to indemnify for consequences...