METROPOLITAN DADE CTY. v. CBM INDUS. OF MN. INC., 3D99-1954.

• Decision Date: 20 September 2000
• Docket Number: No. 3D99-1954.,3D99-1954.
• Citation: 776 So.2d 937
• Parties: METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. CBM INDUSTRIES OF MINNESOTA, INC., etc., Appellee.
• Court: Florida District Court of Appeals

776 So.2d 937

METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. CBM INDUSTRIES OF MINNESOTA, INC., etc., Appellee.

No. 3D99-1954.

District Court of Appeal of Florida, Third District.

September 20, 2000.

Rehearing Denied February 21, 2001.

Merritt, & Sikes and William C. Merritt, Miami; Hicks & Anderson and Martin E. Leach, Miami, for appellant.

Walton Lantaff Schroeder & Carson and John P. Joy and Kenneth L. Valentini, Miami, for appellee.

Before COPE, LEVY, and GERSTEN, JJ.

LEVY, Judge.

Metropolitan Dade County ("the County") appeals from the denial of its Motion for Summary Judgment and the entry of Final Summary Judgment in favor of CBM Industries of Minnesota, Inc. ("CBM"), contending that an indemnity provision in the Management Agreement ("agreement") between the parties requires CBM to indemnify the County for attorney fees expended in defending a slip and fall claim. We agree with the County and reverse, concluding that the underlying Complaint raises alternative claims against the County sounding in negligence and vicarious liability for negligence stemming from CBM's negligent maintenance of the premises.

The County owns the Miami International Airport and contracted with CBM for janitorial and cleaning maintenance services at the airport. An airline employee slipped and fell at the airport and filed suit against the County for her injuries. The plaintiff later amended her Complaint to include CBM as a co-defendant. The County sought to invoke an indemnity provision contained in the agreement which provides:

[CBM] shall indemnify and save the County harmless from any and all claims, liability, losses and causes of actions which may arise out of the willful, negligent, or unlawful acts or omissions of [CBM] in its operations under this Agreement and shall pay all claims and losses of any nature whatsoever in connection therewith, shall defend all suits, in the name of the County, when applicable, including appellate proceedings, and shall pay all costs, judgments, and attorneys fees, which may issue thereon; provided, however, that nothing herein shall be construed to require [CBM] to indemnify the County against liability resulting from the willful, negligent, or unlawful acts of omissions of the County, nor to be liable for loss or damage incurred or occasioned by [CBM] in the performance of operations under this Agreement. This provision shall survive the termination of this Agreement. (emphasis supplied)

CBM denied any duty to defend and/or indemnify the County. After CBM settled the underlying suit on behalf of the County and itself, the County filed a cross-claim for indemnity of attorney fees against CBM, claiming that CBM had a duty to defend the County in the underlying suit pursuant to the indemnification clause contained in the maintenance agreement.

Thereafter, the County moved for Summary Judgment and CBM followed with a Motion for Judgment on the Pleadings. At a combined hearing on the County's Motion for Summary Judgment and CBM's Motion for Judgment on the Pleadings, the trial court entered Summary Judgment in favor of CBM after ruling that CBM's Motion for Judgment on the Pleadings could be treated as a Motion for Summary Judgment. The County appeals from the entry of Final Summary Judgment in favor of CBM. For the following reasons, we reverse.

In considering whether a party has a duty to defend an underlying lawsuit, the trial court is limited to reviewing the allegations raised in the underlying Complaint. See McCreary v. Florida Residential Property and Cas. Joint Underwriting Ass'n, 758 So.2d 692 (Fla. 4th DCA 1999); Westinghouse Elec. Corp. v. Dade County, 472 So.2d 866 (Fla. 3d DCA 1985). In the instant case, Count I of the Amended Complaint ("Complaint") alleges that the County, "by and through its agents and employees," (emphasis supplied) negligently and carelessly maintained and controlled the premises. Count II of the Complaint, a negligence claim against CBM, states that CBM "was under contract with [the County] to maintain the hallway where the incident in question occurred." Read in its entirety, the Complaint states a cause of action for vicarious liability and negligence against the County.

The County relies heavily on Westinghouse Elec. Corp. v. Metropolitan Dade County, 592 So.2d 1134 (Fla. 3d DCA 1992) in support of its position that CBM had a duty to defend. CBM on the other hand, argues that this case is more like SEFC Building Corp. v. McCloskey Window Cleaning Inc., 645 So.2d 1116 (Fla. 3d DCA 1994). Additionally, it was suggested at oral argument that the two opinions conflict. We find that the two opinions are wholly consistent with each other and that the instant case is controlled by Westinghouse.

In Westinghouse, the County contracted with Westinghouse for the installation and maintenance of escalators located at the County's Metrorail stations. The agreement contained an indemnification agreement similar to the one at issue here. Thereafter, the County and Westinghouse were sued for negligent...