STATE, DEPT. OF TRANSP. v. FLA. KEYS ELEC. COOPERATIVE ASS'N, 3D01-2921.

• Decision Date: 30 October 2002
• Docket Number: No. 3D01-2921.,3D01-2921.
• Citation: 831 So.2d 713
• Parties: STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. FLORIDA KEYS ELECTRIC COOPERATIVE ASSOCIATION, Appellee.
• Court: Florida District Court of Appeals

831 So.2d 713

STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. FLORIDA KEYS ELECTRIC COOPERATIVE ASSOCIATION, Appellee.

No. 3D01-2921.

District Court of Appeal of Florida, Third District.

October 30, 2002.

Rehearing Denied December 11, 2002.

Neblett & Sauer, and John Moore, Key West, for appellant.

Kubicki Draper, Fort Myers, and Angela Flowers, Miami, for appellee.

Before LEVY, FLETCHER and RAMIREZ, JJ.

RAMIREZ, J.

The Florida Department of Transportation ("DOT") appeals the entry of summary final judgment in favor of Florida Keys Electric Cooperative Association ("FKEC") where the trial court held that FKEC had no duty to indemnity or defend DOT. Because the amended complaint only alleged DOT's own negligence, we affirm.

DOT issued a utility permit on June 11, 1986 which allowed FKEC to erect concrete utility poles along U.S. 1 in the Florida Keys. The permit stated that "the holder will, at all times, assume all risk of and indemnify, defend, and save harmless the State of Florida and the Department from and against any and all loss, damage, cost or expense arising in any manner on account of the exercise or attempted exercises by said holder for the aforesaid rights and privileges."

In December 1997, the estate of Janine Holcombe sued both DOT and FKEC, among others, for wrongful death. In separate counts, the complaint alleged that DOT and FKEC were negligent in placing and/or failing to relocate the concrete utility pole which allegedly blocked the view of drivers who attempted to turn onto U.S. 1. DOT cross-claimed against FKEC, seeking indemnification for any liability due to FKEC'S placement of the pole, as well as attorney's fees and expenses incurred in defending the wrongful death suit.

The complaint was subsequently amended to state that DOT was negligent in not requiring FKEC to relocate the pole once DOT became aware that the pole created a visual obstruction. The amended complaint no longer alleged that DOT was negligent in the placement of the pole.

"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." Metropolitan Dade County v. CBM Indus, of Minnesota, Inc., 776 So.2d 937, 938 (Fla. 3d DCA 2000). There is no "duty to defend where the only claim raised against the party was a negligent claim for its own active negligence." Id. at 939 (citing SEFC Bldg. Corp. v. McCloskey Window Cleaning, Inc., 645...