Northwestern National Insurance Co. v. Dade County, 71-2602.

• Decision Date: 19 June 1972
• Docket Number: No. 71-2602.,71-2602.
• Citation: 461 F.2d 1158
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: NORTHWESTERN NATIONAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff-Appellant, v. DADE COUNTY, a political subdivision of State of Florida, Defendant-Appellee.

461 F.2d 1158 (1972)

NORTHWESTERN NATIONAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff-Appellant, v. DADE COUNTY, a political subdivision of State of Florida, Defendant-Appellee.

No. 71-2602.

United States Court of Appeals, Fifth Circuit.

June 19, 1972.

Linwood Anderson, Smathers & Thompson, Miami, Fla., for plaintiff-appellant.

William M. Hoeveler, Knight, Peters, Hoeveler, Pickle, Niemoller & Flynn, Miami, Fla., for defendant-appellee.

Before PHILLIPS,^* THORNBERRY and RONEY, Circuit Judges.

PHILLIPS, Circuit Judge:

Northwestern National Insurance Company, hereinafter referred to as the Insurance Company, brought this action against Dade County, Florida, hereinafter referred to as the County, alleging in its complaint that it had paid to two of its insured sums aggregating $24,651.68 for losses suffered by them and covered by the insurance policy issued by it to them; that the negligence of the County was the proximate cause of such losses, and that it was entitled as the subrogee of its insured to recover such amount from the County.

From a summary judgment entered in favor of the County, the Insurance Company has appealed.

In its complaint, after setting out the jurisdictional facts, the Insurance Company alleged the following facts:

At all times mentioned in the complaint, Bernard J. Smith owned the charter fishing vessel, Angler IV, and A. F. Kappler owned the charter fishing vessel, Hi Ho, and each of such vessels was docked at a berth furnished to her respective owner by the County at its marina and docks at Haulover Beach in Dade County, Florida, in return for monthly rentals paid the County by the respective owners of such vessels.

On January 22, 1970, at about 9:30 p. m., while such vessels were docked in such berths, a fire in Angler IV was seen by bystanders, who immediately ran to the fire hose shed maintained at the head of the pier by the County, attached the fire hose provided by the County, and attempted to extinguish the fire, but the hose was so deteriorated and full of holes that no water reached the nozzle of the hose, and the hose was of no use in extinguishing the fire.

Before other means of fighting the fire were obtained, the fire, which could have been extinguished had the hose not been defective, was out of control, and completely destroyed the Angler IV and severely damaged the Hi Ho.

The loss of the Angler IV and the damage to the Hi Ho were caused by the negligence of the County in furnishing the defective fire fighting equipment, in failing to furnish adequate and proper fire fighting equipment, and in failing to maintain fire fighting equipment at the pier.

The Insurance Company had issued policies of marine hull insurance to Smith, insuring the Angler IV, and to Kappler, insuring the Hi Ho, against marine perils, including fire. Such policies were in force at the time of the fire, and the Insurance Company became liable to pay and did pay under its policy to Smith the amount of $18,904 and to Kappler the amount of $5,747.68 for the respective losses they sustained because of the fire. And the Insurance Company asserted in its complaint that by reason of such payments it became subrogated to all the rights of its insured against the County arising from such fire and damage to the full extent of the payments made.

In an amendment to its answer, the County set up as an affirmative defense that by the provisions of a lease entered into between it and Smith, dated August 25, 1969, leasing space to Smith in which to dock his boat, Angler IV, at the County marina at Haulover Beach, Florida, and a lease dated August 20, 1969, leasing space to Kappler in which to dock his boat, Hi Ho, at such marina, Smith and Kappler were each barred from asserting against the County claims for negligence, and the Insurance Company was likewise barred from asserting claims, as their subrogee, against the County.

The leases were identical, except as to their dates, the names of the lessees, and the names of their respective boats.

In its brief, the County relies on the provisions of paragraph 5 of the leases, which reads:

"5. All personal property placed or moved in or on the premises or upon the vessel above described shall be at the risk of the lessee or owner thereof, and lessor shall not be liable for any damage or loss to said personal property or the boat for any act of negligence of any co-lessee or occupant, or any other person whomsoever."

and also on the provisions of paragraphs 12, 13, and 14, which we set out in note 1 hereto.¹

The motion for summary judgment was filed on May 27, 1971. The summary judgment was filed on June 15, 1971. The deposition of Bernard Smith was taken on May 14, 1971, and is set out in full in the appendix. While the deposition does not show that it was filed in the District Court, counsel for the Insurance Company referred to it in their brief in chief, and counsel for the County take no exception to their so referring. We therefore assume that it was before the District Court when it considered and passed on the motion for summary judgment.

In their briefs, both parties regard and treat the provisions of the leases on which the County bases its claim of nonliability as indemnity agreements, and cite and rely on cases invoking the question of whether the provisions of an indemnity agreement indemnify against the indemnitee's own negligence.

In his deposition, Smith testified that the County drafted his lease; that he had no choice as to its terms, and that it was presented to him to accept as drafted, or vacate his space. It is fairly inferable from his testimony that there were no negotiations between him and the County as to the terms and provisions which were incorporated in his lease. Such facts are also fairly inferable from the testimony given by Jacob Wolf in a deposition taken on behalf of the County on May 14, 1971. Wolf testified that he was familiar with the leases entered into by the County for docking space at its marina; that he had had occasion to handle some of them; and that all of the leases entered into by the County for docking space at piers in its marina were prepared by the County and were identical in language.

The general rule followed in a large majority of the jurisdictions of the United States is that a contract of indemnity will not be construed to indemnify the indemnitee against liability for his own negligence, unless the intention of the parties so to do is expressed in clear, unequivocal, and specific language, and that general language, although broad in scope, is not sufficient.² That rule is referred to in the judicial decisions and by text writers as the majority rule.

The courts in some jurisdictions follow what is referred to as the minority rule and do not adhere to the strict requirements of the majority rule.

Since Florida law is controlling, our problem is to ascertain and apply the law of Florida. After a careful examination of the Florida decisions, for reasons we shall hereafter more fully state, we have concluded that the law of Florida is in accord with the majority rule.

We are of the opinion that Gulf Oil Corporation v. Atlantic Coast Line Railroad Co., Fla.Dist.Ct.App., 2nd Dist., 196 So.2d 456, is the leading Florida case on the subject. In its opinion in that case, the court reviewed all of the decisions of the Florida courts, from the decision of the Supreme Court of Florida in Jackson v. Florida Weathermakers, 55 So.2d 575, down to the date of its decision in the Gulf Oil Corporation case.

In Jackson v. Florida Weathermakers, supra, two individuals, doing business as Jacksonville Meat Company, owned and operated a grocery store in Jacksonville, Florida. Jacksonville Meat Company entered into a contract with Florida Weathermakers, Inc., for installation by the latter of an air conditioning system in the store. Weathermakers subcontracted the electrical wiring part of the job to H. L. Hall. At a time when Hall's employees were engaged in running the wiring system through the attic of the store, a celotex tile fell from the ceiling of the store and struck and injured Nellie B. Creasy while she was shopping in the store. Mrs. Creasy and her husband brought a suit against Jacksonville Meat Company, Weathermakers, and Hall to recover damages for her injuries. Jacksonville Meat Company filed a crosscomplaint against Weathermakers and Hall, alleging that the injuries suffered by Mrs. Creasy were caused solely by the negligence of Weathermakers and Hall, and by virtue of the contract between Jacksonville Meat Company and Weathermakers, which contained a public liability clause, one or both of the other defendants were liable over to Jacksonville Meat Company for all damages awarded against it in the Creasy suit. A jury trial resulted in a verdict in favor of Weathermakers and Hall and against Jacksonville Meat Company, and assessed damages against Jacksonville Meat Company and in favor of Creasy.

In an opinion on rehearing, the Supreme Court of Florida said:

"The cross-claim against Florida Weathermakers was bottomed solely on the contract between Jax Meat and Florida Weathermakers whereby Florida Weathermakers agreed to procure `public liability insurance,\' which in the absence of clear and unequivocal terms must be construed to be a contract to indemnify only against the negligence of the indemnitor, and not that of the indemnitee. 27 Am.Jur., Indemnity, Section 15 * * *. Since Florida Weathermakers and its subcontractor were exonerated by the verdict of the jury, it is no longer important whether or not Florida Weathermakers procured such `public liability insurance.\'"

In the Gulf Oil Corporation case, the District Court of Appeals for the Second District of Florida said:

"The case of Nat Harrison Associates, Inc. v. Fla. Power & Light Co., 162 So.2d 298 (D.C.A.Fla.1964), cert. denied, 166 So.2d 754 (Fla.1964), involved construction of the following contractual clause:

"`*

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