Tout v. Hartford Acc. & Indem. Co., 80-373
| Decision Date | 18 November 1980 |
| Docket Number | No. 80-373,80-373 |
| Parties | William and Jean TOUT, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellee. |
| Court | Florida District Court of Appeals |
Cunningham, Albritton & Lenzi, P.A., and Franklin D. Greenman, Marathon, for appellants.
Talburt, Kubicki & Bradley and Betsy E. Hartley, Carl W. Schwait, Miami, for appellee.
Before BARKDULL, SCHWARTZ and NESBITT, JJ.
The Touts, defendants below, appealed from a final judgment entered in favor of Hartford Accident & Indemnity Company (Hartford), as subrogee for Michael S. Greenwald (Greenwald).
The Touts entered into a land sale contract for the purchase of a home owned by Greenwald. The contract permitted the Touts to rent the premises at a stipulated monthly sum prior to closing. Additionally, the contract between the Touts and Greenwald contained the following exculpatory clause: "Seller assumes risk of loss from fire or otherwise until closing ...." While the Touts were in possession as tenants, a fire broke out in the kitchen of the premises resulting in damage in the amount of $9,068.96, which was paid to Greenwald by Hartford under a homeowner's insurance policy it had issued. Hartford then initiated this subrogation action against the Touts to recover the amount paid.
The testimony of the parties reveals that on November 1, 1976, while preparing the evening meal, Mrs. Tout realized she was late picking up her child from school. Mr. Tout, who was home at the time, drove his wife to pick up their child. Unfortunately, Mrs. Tout had neglected to turn off the electric range before leaving and upon their return they discovered the kitchen ablaze. In their answer to the subrogation claim filed by Hartford, the Touts asserted the exculpatory clause cited above as an affirmative defense. Hartford's motion to strike this defense was granted, which the Touts alleged to be error. We disagree.
While the ruling of the trial court is supportable on Section 83.47(1)(b), Florida Statutes (1975), which makes agreements to limit or preclude liability void, see also Fuentes v. Owen, 310 So.2d 458, 459 (Fla. 3d DCA 1975), we prefer to rest our affirmance of this portion of the challenged order on the ground that a limitation of liability for one's negligent acts cannot be inferred unless such intention is expressed in unequivocal terms. Ivey Plants, Inc. v. F.M.C. Corporation, 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla...
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