Regis Ins. Co. v. MIAMI MANAGEMENT, INC., 4D04-1265.

• Citation: 902 So.2d 966
• Decision Date: 08 June 2005
• Docket Number: No. 4D04-1265.,4D04-1265.
• Parties: REGIS INSURANCE COMPANY, as subrogee of The Residences of Sawgrass Mills Community Association, Inc., Appellant, v. MIAMI MANAGEMENT, INC., Appellee.
• Court: Court of Appeal of Florida (US)

902 So.2d 966

REGIS INSURANCE COMPANY, as subrogee of The Residences of Sawgrass Mills Community Association, Inc., Appellant, v. MIAMI MANAGEMENT, INC., Appellee.

No. 4D04-1265.

District Court of Appeal of Florida, Fourth District.

June 8, 2005.

David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and Thomas J. Morgan, P.A., Coconut Grove, for appellant.

Gary A. Esler of Esler & Lindie, P.A., Fort Lauderdale, for appellee.

HAZOURI, J.

Regis Insurance Company (Regis) as subrogee of The Residences of Sawgrass Mills Community Association (The Residences),¹ appeals the dismissal with prejudice of its Fourth Amended Third-Party Complaint against Miami Management, Inc. (MMI) and a final judgment in favor of MMI entered upon the order dismissing the Fourth Amended Third-Party Complaint with prejudice. We reverse.

The Fourth Amended Third-Party Complaint sought indemnification or contribution from MMI based upon the settlement of a wrongful death action in which Regis's insured, The Residences, was sued for negligence. The facts underlying the tort action which give rise to this dispute between Regis and MMI are as follows:

Angela Foster died in an automobile accident after Andre Wayne Chung lost control of his vehicle while driving through a puddle of standing water. Chung crossed the roadway's median and collided head on with Angela's vehicle. Beverly Foster ("Foster") filed suit against Chung and a number of other defendants, including Miami Management, alleging, in part, that the negligent construction and maintenance of the median and irrigation system caused water to accumulate on the roadway, creating a hazardous condition, and that the roadway itself was negligently constructed, designed, and maintained.

Foster v. Chung, 743 So.2d 144, 145 (Fla. 4th DCA 1999).

Regis settled the underlying tort claim with Foster and now seeks a monetary payment from MMI alleging that MMI negligently maintained the irrigation system causing the accident.² MMI asserts that Regis cannot seek recovery against it because it is an additional insured pursuant to Regis's insurance policy with The Residences. If MMI is also an insured under the Regis policy, Regis is barred from seeking indemnification from MMI. See Marina Del Americana, Inc. v. Miller, 330 So.2d 164 (Fla. 4th DCA 1976)

.

The insurance policy³ between Regis and The Residences defined "insured" as "any person or organization qualifying as an insured in the `Persons insured' provision of the applicable insurance coverage." The "Persons insured" section of the contract includes in section (d) "any person (other than an employee of the named insured) or organization while acting as a real estate manager for the named insured." Part B of the insurance contract lists in item one, under name of the insured, The Residences, care of Miami Management, attention Guillermo Cancio-Beuo, President.

There were two contracts between The Residences and MMI, both of which were executed on the same day. One contract retained MMI to perform management services for The Residences (Management Contract). Included in the Management Contract is a clause which reads "[t]he Manager shall arrange for the supervision of maintenance of the common areas, improvements, and equipment of the Association." The second contract is a contract to perform lawn services, detail work, irrigation, and fountain services (Lawn Services Contract). In paragraph 5 of the Fourth Amended Third-Party Complaint, it is alleged:

At all times material hereto, MMI had a contract with THE RESIDENCES to maintain the median and/or maintain and operate the

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