State Farm Fire & Casualty Co. v. B & F Marine, Inc.

520 So. 2d 649, 13 Fla. L. Weekly 516, 1988 Fla. App. LEXIS 756, 1988 WL 12518

• Court: District Court of Appeal of Florida
• Decided: February 23, 1988
• Docket: No. 87-1060
• Status: Published

Opinion

PER CURIAM.

This is an appeal from a final summary judgment entered in favor of the defendant B & F Marine, Inc., a boat repair company, in a negligence action arising out of a bailment. The plaintiff State Farm Fire & Casualty Company became subrogated to the rights of its insured boat owner and brought the instant suit claiming negligence by the defendant when the insured’s boat was stolen while in the defendant’s possession for certain repairs.

We reverse the final summary judgment under review and remand for further proceedings upon a holding that (a) a jury question is presented on this record as to whether the defendant, as a bailee of the subject boat, was guilty of negligence with respect to the subject boat theft, Adelman v. M & S Welding Shop, Inc., 105 So.2d 802 (Fla. 3d DCA 1958), and (b) the exculpatory clause contained in the boat repair contract/order entered into by the parties in which the insured boat owner agreed not to hold the defendant liable “for loss or damage caused by theft, fire, or any other cause beyond your [cjompany’s control to ... personal property delivered to the [defendant] for repair, sale or storage” does not, as required, clearly and unequivocally relieve the defendant of liability for its own negligence in connection with such a theft, and, consequently, cannot bar the plaintiff's claim below. Orkin Exterminating Co. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978); see Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987).

Reversed and remanded.