Shafer & Miller v. Miami Heart Institute, Inc.

237 So. 2d 310, 1970 Fla. App. LEXIS 6170

• Court: District Court of Appeal of Florida
• Decided: June 9, 1970
• Docket: 69-1093
• Status: Published

Opinion

237 So.2d 310 (1970)

SHAFER & MILLER, a Florida Corporation, Appellant,
v.
MIAMI HEART INSTITUTE, INC., Appellee.

No. 69-1093.

District Court of Appeal of Florida, Third District.

June 9, 1970. Rehearing Denied August 5, 1970.

Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellant.

Preddy, Haddad, Kutner & Hardy, Miami, for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.

PER CURIAM.

This is an appeal from a final summary judgment as to liability for Miami Heart Institute, Inc., upon its crossclaim against its co-defendant Shafer & Miller, a corporation, in a suit claiming personal injury on a construction site. The appellants Shafer & Miller were the general contractors upon the job and gave to the appellee, who were the owners, the following indemnity agreement:

"Indemnity — The contractor covenants to indemnify and save harmless the Owner from and against all losses and all claims, demands, payment, suits, actions, recoveries and judgments of every nature and description suffered or sustained by the Owner or brought against the Owner, or by anyone or more of same, by reason for any act or omission of the said Contractor, the Contractor's agents or employees in any manner relating to the execution of the work or in guarding the same."

The trial judge correctly held that there was no genuine issue of material fact as to ultimate fact that if liability existed for the injury that the liability existed because of an "act or omission of the said contractor". It follows from the clear wording of the contract that as a matter of law the appellee was entitled to the partial summary judgment upon liability. Where determination of liability depends upon a written instrument of the parties thereto and the legal effect to be drawn therefrom, the question at issue is one of law only and ordinarily is determinable by summary judgment. Kochan v. American Fire and Casualty Company, Fla.App. 1967, 200 So.2d 213, 220.

Affirmed.