Misener Marine Const. Co. v. Southport Marine, Inc.

• Decision Date: 30 November 1979
• Docket Number: No. 78-1665,78-1665
• Citation: 377 So.2d 757
• Parties: MISENER MARINE CONSTRUCTION COMPANY and Maryland Casualty Co., Appellants/Cross-Appellees, v. SOUTHPORT MARINE, INC. and Travelers Insurance Company, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 757

377 So.2d 757

MISENER MARINE CONSTRUCTION COMPANY and Maryland Casualty Co., Appellants/Cross-Appellees, v. SOUTHPORT MARINE, INC. and Travelers Insurance Company, Appellees/Cross-Appellants.

No. 78-1665.

District Court of Appeal of Florida, Second District.

Nov. 30, 1979.

David J. Kadyk and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants/cross-appellees.

David G. Hanlon and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees/cross-appellants.

STARNES, HUGH E., Associate Judge.

Misener Marine Construction Co. (Misener) was the contractor for certain work on a bridge over the Peace River. Misener subcontracted certain work on the pilings to Southport Marine, Inc., (Southport) by written agreement. The subcontract agreement included the lease of a barge, a concrete truck with an operator, and a tug boat with an operator; all to be furnished by Misener to Southport. Forest Filbert operated the concrete truck and was injured while operating a winch on the barge. Filbert sued Misener and Southport under the Jones Act (46 U.S.C. section 688) and related causes of action alleging negligence in failing to provide a safe place to work, in failing to keep the winch in proper repair and in providing a vessel which was unseaworthy. Both Misener and Southport filed cross claims for indemnity. The trial court granted a pre-trial motion by Southport by finding that Filbert was not an employee of Southport. Before trial both defendants settled with Filbert, each contributing one-half of the stipulated sum; both reserved their rights to prosecute their pending cross claims.

After a trial on the cross claims, the trial court found:

(1) Filbert was not a "seaman" (thus, eliminating applicability of the Jones Act).

(2) The vessel was not "unseaworthy".

(3) That neither Misener nor Southport was negligent; that Filbert's injury was caused by his own carelessness.

(4) That neither defendant was entitled to recover from the other.

Both parties have appealed the trial court's decision.

Misener argues that an indemnity clause in the subcontract entitles it to a recovery from Southport for its contribution to the settlement as well as the cost of its defense of Filbert's claim, while Southport maintains it is entitled to indemnification on common law indemnity principles.

Misener's claim for indemnity arises strictly from the contract.

The trial court found that the injury was caused entirely by Filbert's own negligence, with no fault attributed to either Misener or Southport.

Misener's claim for indemnity can be decided by determining the logical meaning and intent of the contract; this is the principal rule of contract interpretation and applies equally to an indemnity contract as to other forms of contract. J. A. Jones Construction Co. v. Zack Co., 232 So.2d 447 (Fla.3rd DCA 1970). The indemnity clause at issue here protects Misener against "all claims . . . based upon or arising out of damages or injury to persons . . . sustained in connection with the performance of this Subcontract . . .." Since Filbert was an employee furnished by Misener to perform services which were Misener's duty under the lease agreement, the services did not arise under the subcontract duties of Southport. The obvious and logical intent of the indemnity clause was to have Southport reimburse Misener for any loss sustained by Misener where injury to person or property arose out of duties to be performed by Southport. The very same agreement which contained the indemnity clause also contained Misener's promise to furnish the employee who sustained the injuries, and (as the trial court found) caused the injury. Thus, the only reasonable interpretation of the subcontract as a whole would be that Southport was not to be responsible for loss occurring to Misener from Misener's duty under the lease clause.

Misener places its argument for indemnity upon two premises: (1) the existence of an indemnity clause, and (2) the trial court's finding of its lack of negligence as compared to Filbert's claim. Misener has shown no undisputed facts, nor has it referred us to any finding of the trial court which demonstrates that the injury arose in the context of Southport's Duties. Implicit in the trial court's ruling is the contrary fact that the injury arose from Misener's performance of its Own duties under the lease agreement contained within the subcontract.

Misener next claims that whether or not it should receive reimbursement for its portion of the settlement paid to Filbert, Southport should pay the costs of defense of Filbert's claim. The indemnity clause does contain language providing that Southport had a duty to defend Misener, if requested, as to any claim to which indemnity applies. Misener had originally tendered the defense of Filbert's claim to Southport. Misener bottoms its claim as to cost of defense on Zack Co., supra and Stephens v. Chevron Oil Company, 517 F.2d 1123 (5th Cir. 1975). Both of these cases involved indemnity claims for expenses of defense by an indemnitee who had successfully defended the claim of a third party that the indemnitee was negligent. The Zack Co. case involved a claim by a building owner against the contractor and a roofing and siding subcontractor for damage to the roof and siding of the building (an airplane hangar) occasioned by a hurricane. An indemnity clause in the subcontract obligated the subcontractor to indemnify the contractor for damages arising from "accidents". The contractor successfully defended the claim and then sought recovery against the subcontractor for the cost of defense. The trial court denied recovery. On appeal this ruling was reversed. The appellate court found the hurricane was an "accident" and thus the claim was covered by the indemnity agreement. The contractor and subcontractor had stipulated that the owner's claim was based upon the negligence of the subcontractor. The court then found that the nature of the claim, not who won or lost, was the criterion for determining liability of the indemnitor for expenses of suit. Since the claim alleged negligence of the subcontractor and loss by accident, the indemnity as to suit expenses applied.

In Stephens, Chevron had entered into a contract with Axelson, Inc., which contained an indemnity clause in favor of Chevron. Stephens, an employee of Axelson, was injured while stepping from a Chevron boat to a Chevron dock. He sued Chevron, alleging Chevron alone was negligent because the boat and wharf were slick with oil. Axelson refused Chevron's tender of the defense; a jury subsequently found Chevron was not negligent. Chevron then sought reimbursement for the expenses of its defense. The Fifth Circuit held that Chevron was entitled to reimbursement for defending Stephen's claim even though there would have been no right to reimbursement if the claim had been successful because the indemnity clause would not have protected against loss occasioned by Chevron's own negligence. Acknowledging that such a rule allows an indemnitor to determine its responsibility only by hindsight and that there probably was a conflict of interest in the indemnitee providing the defense, the court noted that the rights were contractual in nature and that these collateral problems were not to be judicially resolved.

Neither of the foregoing cases apply to the instant case. Zack Co. involved a claim of pure vicarious liability on the part of the contractor for the acts of its subcontractor. The pleadings here delineating Filbert's claim contain no clear statement of similar liability. It should again be noted that Misener, not Southport, furnished the equipment on which Filbert was injured.

In Stephens the employee injured was that of Axelson, the indemnitor, while in this case employee injured was that of Misener the indemnitee. Moreover, the court specifically based its decision on the claim having arisen from the work to be done by Axelson. Again, in this...