University Plaza Shopping Center v. Stewart, No. 41799

CourtUnited States State Supreme Court of Florida
Writing for the CourtDEKLE; CARLTON; ERVIN
Citation272 So.2d 507
PartiesUNIVERSITY PLAZA SHOPPING CENTER, INC., a Florida corporation, and Michigan Mutual Liability Company, Petitioners, v. Marvin STEWART and American Employers Insurance Company, Respondents.
Decision Date24 January 1973
Docket NumberNo. 41799

Page 507

272 So.2d 507
UNIVERSITY PLAZA SHOPPING CENTER, INC., a Florida corporation, and Michigan Mutual Liability Company, Petitioners,
v.
Marvin STEWART and American Employers Insurance Company, Respondents.
No. 41799.
Supreme Court of Florida.
Jan. 24, 1973.

Page 508

H. O. Pemberton and E. Harper Field, of Keen, O'Kelley & Spitz, Tallahassee, for petitioners.

J. Lewis Hall, of Hall, Hartwell & Hall, Tallahassee for respondents.

DEKLE, Justice.

We have for review by certiorari a decision of the First District Court of Appeal, reported at 253 So.2d 756, which conflicts with Thomas Awning and Tent Co., Inc., v. Toby's Twelfth Cafeteria, Inc., 204 So.2d 756 (Fla.App.3d 1967), on the same point of law concerning indemnification agreements. Our jurisdiction stems from Fla.Const. art. V, § 3(b)(3) (1973), F.S.A. We denied oral argument as unnecessary. F.A.R. 3.10(e), 32 F.S.A.

Petitioner University Plaza Shopping Center (hereafter sometimes referred to as 'Landlord') leased a building in its shopping center to Respondent Stewart ('Tenant'), who used the premises to operate a barber shop. During the lease period a gas line exploded underneath the barber shop causing fatal injuries to a barber. The legal proceedings arose when the barber's widow sued the landlord for wrongful death. Her amended complaint alleged that the landlord negligently installed and/or maintained a gas line under the barber shop causing the gas explosion and resulting in the barber's death. Shortly thereafter the landlord filed a third-party complaint against the tenant and his insurer, American Employer's Insurance Co., seeking to impose liability on them. The landlord based his action upon the lease agreement containing an indemnity provision which is in pertinent part:

'SECTION 11. INDEMNITY--LIABILITY INSURANCE. Tenant shall indemnify and save harmless the Landlord from and against any and all claims for damages to goods, wares, merchandise and property in and about the demised premises and From and against any and all claims for any personal

Page 509

injury or loss of life in and about the demised premises.

'Tenant shall maintain in full force, during the term of this lease, a policy or policies of comprehensive general liability insurance, in form reasonably satisfactory to the Landlord, written by one or more responsible insurance companies licensed to do business in the State of Florida, which will insure Tenant and Landlord. The coverage under such insurance shall not be less than $100,000.00 for any one injury (including death), and not less than $300,000.00 for any one accident (including death) and not less than $10,000.00 for property damage.' (emphasis ours)

In admissions of fact, the landlord conceded that the gas line was under, but not a part of, the leased premises. Upon motion, the trial court entered a summary judgment for tenant saying an indemnity agreement stated in general terms does not apply to liability resulting from the sole negligence of the indemnitee. As to the comprehensive general liability insurance obtained by tenant from American Employer's Insurance Co. pursuant to the lease agreement, the trial judge said the policy is only applicable when the tenant is liable and in this situation the tenant is free from liability; that hence the policy of insurance does not apply in this matter. On appeal, the First District Court of Appeal affirmed without opinion or comment. Certiorari followed here.

Initially we considered, as we always do, whether there is a basis for our jurisdiction. This review disclosed a decisional conflict. In construing a similar indemnity clause, the Third District in Thomas Awning and Tent Co., Inc., said indemnification for 'any loss or claims' encompasses the indemnitee's negligence, too. According, we must fulfill the fundamental purpose for our conflict jurisdiction as basically a court of limited jurisdiction by resolving these conflicting decisions and rendering the law on this point harmonious and uniform.

In this setting the central issue is whether a contract of indemnity stated in general terms of 'any and all claims' indemnifies the indemnitee for damages resulting from his Sole negligence. 1 We limit our review to this admitted factual situation. Whether indemnification is invoked where Joint negligence of both landlord and tenant is alleged against them is not involved; neither is any claim of a pipeline (or other item) located Upon the leased premises but controlled or maintained by the landlord, and which causes injury; nor in cases of separate, independent acts of negligence on the part of both indemnitor and indemnitee. 2

A thorough analysis of the applicable case law throughout the United States indicates divergent views on the particular point of law applicable here. Even so, most courts do agree upon the basic premise that:

'A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts Unless such intention is expressed in clear and unequivocal terms. . . .' 3 (emphasis ours)

The contrasting viewpoints turn on an interpretation of the words 'clear and unequivocal terms.' Generally, the state and federal cases are divided into three different approaches to this problem. One line of authority adheres to the view that general

Page 510

language such as 'any and all claims' in an agreement is not sufficient to impose indemnity for the indemnitee's negligence. In other words, the contract must contain a specific provision providing for indemnification in the event the indemnitee is negligent. Secondly, in a number of the cases, it has been held that promises to indemnify against 'any and all claims' includes losses attributed solely to the negligence of the indemnitee. 4 This point of view is based upon the theory that the words 'any and all claims' are crystal clear; ergo, all means all without exception. Finally, many cases look to the particular contractual language And any other factors indicating the intention of the parties to determine if the parties 'clearly and unequivocally' expressed the intent to indemnify for indemnitee's own negligence. 5

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95 practice notes
  • Comptech Intern., Inc. v. Milam Commerce Park, Ltd., No. 96-1056
    • United States
    • Court of Appeal of Florida (US)
    • May 20, 1998
    ...caused by its own negligence, the contract must explicitly say just that. See id.; University Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 509-12 (Fla.1973). A general provision indemnifying the indemnitee against any and all liability is not enough. See University Plaza Shopping Ct......
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...DCA 2001) ); Raveson v. Walt Disney World Co., 793 So.2d 1171, 1173 (Fla. 5th DCA 2001) ; cf. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 509 (Fla.1973) (“ ‘A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own neglige......
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...204 So.2d 756 (Fla.Dist.Ct.App.-3rd Dist. 1967), overruled in part on other grounds, University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla.Dist.Ct.App.-3rd Dist. 1962). Florida law does require that a complaint a......
  • Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., No. 74-2709
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1975
    ...one, see Ivey Plants, Inc. v. FMC Corp., Fla.App.1973, 282 So.2d 205, 209; cf. University Plaza Shopping Center v. Stewart, Fla.1972, 272 So.2d 507, 511, and we are convinced that the general maritime law should not Page 178 diverge from the general rule in this respect. Cf. Dow Chemical Co......
  • Request a trial to view additional results
95 cases
  • Comptech Intern., Inc. v. Milam Commerce Park, Ltd., No. 96-1056
    • United States
    • Court of Appeal of Florida (US)
    • May 20, 1998
    ...caused by its own negligence, the contract must explicitly say just that. See id.; University Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 509-12 (Fla.1973). A general provision indemnifying the indemnitee against any and all liability is not enough. See University Plaza Shopping Ct......
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...DCA 2001) ); Raveson v. Walt Disney World Co., 793 So.2d 1171, 1173 (Fla. 5th DCA 2001) ; cf. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 509 (Fla.1973) (“ ‘A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own neglige......
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...204 So.2d 756 (Fla.Dist.Ct.App.-3rd Dist. 1967), overruled in part on other grounds, University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla.Dist.Ct.App.-3rd Dist. 1962). Florida law does require that a complaint a......
  • Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., No. 74-2709
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1975
    ...one, see Ivey Plants, Inc. v. FMC Corp., Fla.App.1973, 282 So.2d 205, 209; cf. University Plaza Shopping Center v. Stewart, Fla.1972, 272 So.2d 507, 511, and we are convinced that the general maritime law should not Page 178 diverge from the general rule in this respect. Cf. Dow Chemical Co......
  • Request a trial to view additional results

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