U.S. Fire Ins. Co. v. Adt Sec. Servs., Inc., 2D12–1956.

• Decision Date: 22 January 2014
• Docket Number: No. 2D12–1956.,2D12–1956.
• Citation: 134 So.3d 477
• Parties: UNITED STATES FIRE INSURANCE COMPANY, a foreign corporation, a/s/o M A Federal, Inc., Appellant, v. ADT SECURITY SERVICES, INC., a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

134 So.3d 477

UNITED STATES FIRE INSURANCE COMPANY, a foreign corporation, a/s/o M A Federal, Inc., Appellant,
v.
ADT SECURITY SERVICES, INC., a foreign corporation, Appellee.

No. 2D12–1956.

District Court of Appeal of Florida,
Second District.

Sept. 18, 2013.
Rehearing Denied Jan. 22, 2014.

Carol M. Rooney, Hobart M. Hind, Jr., and Anthony J. Livingston of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.

Kristopher J. Verra of Shook Hardy & Bacon L.L.P., Tampa, and Charles C. Eblen of Shook Hardy & Bacon L.L.P., Kansas City, Missouri, for Appellee.

MORRIS, Judge.

United States Fire Insurance Company (USFI) appeals a judgment on the pleadings entered in favor of ADT Security Services, Inc., which had the end result of a dismissal of USFI's complaint with prejudice. This negligence action arose after a facility owned by M.A. Federal, USFI's insured, was broken into and equipment was stolen. ADT provided security for the building. After USFI paid M.A. Federal's insurance claim, USFI became subrogated to M.A. Federal's rights and sued ADT on the theories that ADT was negligent by failing to advise M.A. Federal that the analog-based security system that was installed would become obsolete once the Federal Communications Commission (FCC) transitioned from an analog-based system to a digital system, by failing to replace the analog-based system with a digital system after the transition, and by failing to advise M.A. Federal that the system stopped transmitting signals once the transition occurred. The trial court granted ADT's motion for judgment on the pleadings based on provisions in the contract between ADT and M.A. Federal purporting

[134 So.3d 478]

to limit ADT's liability. We conclude that this was error because USFI alleged a legally sufficient cause of action that was independent of any breach of contract.

Background

M.A. Federal contracted with ADT in 2006 to install a security system which included a wireless backup that would activate if the “hard wire” was disabled. At the time of the installation, ADT was aware that analog service would cease in 2008,¹ thereby resulting in a loss of signal between analog-based security systems and ADT's alarm monitoring service.

The wireless backup for M.A. Federal's security system ceased working in 2008 at the time of the transition from analog to digital service. However, ADT did not notify M.A. Federal that the backup system was no longer transmitting signals to ADT's monitoring service. In March 2010, M.A. Federal's warehouse was broken into and millions of dollars of equipment was stolen. During the burglary, the “hard wire” was disabled, and because the wireless system was not transmitting a signal, the burglary went undetected.

After USFI became subrogated to M.A.'s Federal's rights, it brought its negligence suit. Within ADT's answer and affirmative defenses, it admitted that it knew about the transition date. However, ADT denied any liability for M.A. Federal's losses and denied that it had any duties to M.A. Federal other than “duties recognized by law.” ADT alleged thirteen affirmative defenses, including the defense that the cause of action was barred by contractual provisions between the parties.

Thereafter, ADT filed its motion for judgment on the pleadings based entirely on the affirmative defense of contractual liability. ADT argued that USFI had failed to allege a tort duty independent of the parties' contract that could support the negligence claim. ADT further contended that a waiver of subrogation provision² barred USFI's action and that another provision limited ADT's liability to $1000.³ ADT relied on language on the back of the contract addressing circumstances where a

[134 So.3d 479]

customer could, for an additional expense, opt for a rider that would expand ADT's liability. ⁴ It is undisputed that M.A. Federal did not purchase the additional protection. ADT argued that it simply had no duty outside the contract to monitor or protect M.A. Federal's facility.

Ultimately, the trial court granted ADT's motion finding that USFI's action was essentially premised upon negligent performance of the contract, and therefore, it was barred by the provisions in the contract.

Analysis

We review an order granting judgment on the pleadings de novo. Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003) (citing Williams v. Howard, 329 So.2d 277, 280–81 (Fla.1976)).

“The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no...