University Plaza Shopping Center v. Stewart

• Decision Date: 24 January 1973
• Docket Number: No. 41799,41799
• Citation: 272 So.2d 507
• Parties: UNIVERSITY PLAZA SHOPPING CENTER, INC., a Florida corporation, and Michigan Mutual Liability Company, Petitioners, v. Marvin STEWART and American Employers Insurance Company, Respondents.
• Court: Florida Supreme Court

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.

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 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 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

The decisions applying Florida law on this subject have been mixed. In the interest of clarity and certainty, we shall review these cases and state our viewpoint.

The starting point for our discussion is our earlier decision in Jackson v. Florida Weathermakers, Inc., 55 So.2d 575 (Fla.1951). There we were concerned with an indemnification agreement in which the indemnitor agreed to purchase public liability insurance. (The agreement did not contain a general clause for indemnity against all losses and claims.) As to the scope of the indemnity provision in Jackson we said 'in the absence of clear and unequivocal terms' the agreement indemnifies against the indemnitor's negligence only. It does not include indemnification for the indemnitee's negligence.

In Jacksonville Terminal Co. v. Railway Express Agency, Inc., 296 F.2d 256 (5th Cir. 1962), our Court of Appeals considered a suit arising under the law of Florida and involving an indemnity provision. The indemnitor had promised to indemnify for all 'charges, expenses, loss, damage, injuries, (etc.)' Acknowledging its duty to apply existing Florida law, the federal court examined the Florida cases and said there was no applicable Florida law. In its analysis the Court of Appeals distinguished our Jackson case by saying it did not involve indemnification from 'any and all claims' or comparable language; that Jackson was merely concerned with an indemnitor's covenant to obtain public liability insurance. Based upon this rationale and accordingly unfettered by any pertinent Florida rule, the federal court (without certifying the question to us as has been the most recent practice under F.A.R. 4.61 ⁶) exercised its independent judgment and said an indemnity clause phrased in general language includes indemnification for losses created by the indemnitee's own negligence.

In a subsequent decision, ⁷ the same Federal Court of Appeals faced a similar factual situation concerning an indemnity provision and requiring an application of Florida law. In that case the federal court, again, without resorting to a certified question, followed its decision in the Jackson Terminal case: an indemnitor's promise to hold the indemnitee harmless from 'any and all loss' indemnifies against the indemnitee's own negligence, too.

Notwithstanding these federal decisions, our Second and Third District Courts of Appeal have held that the words 'any and all liability' do not include indemnity for consequences resulting from the indemnitee's own negligence. Nat. Harrison Associates v. Florida Power and Light Co., 162 So.2d 298 (Fla.App.3d 1964), cert. denied 166 So.2d 754 (Fla.1964); Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla.App.3d 1966), cert. denied, 200 So.2d 810 (Fla.1967); and Gulf Oil Corp. v. Atlantic Coastline R.R. Co., 196 So.2d 456 (Fla.App.2d 1967), cert. denied, 201 So.2d 893 (Fla.1967). The import of these opinions is succinctly stated in Gulf where Acting Chief Judge Liles said, 196 So.2d p. 459:

'It is evident, then, that Florida decisions hold that an indemnity agreement which indemnifies against the indemnitee's own negligence must state this in 'clear and unequivocal' language. It is also clear that in Nat Harrison Associates, Inc. v. Fla. Power & Light Co., 162 So.2d 298 (D.C.A.Fla.1964) and Fla. Power & Light Co. v. Elmore, supra, the court ruled that the words 'against any liabilities whatsoever' did not constitute 'clear and unequivocal' language sufficient to indemnify the indemnitee against its own negligence. . . . We likewise conclude that in order for an indemnity clause or contract to indemnify against an indemnitee's own negligence, The clause or contract must expressly state that such...