University Plaza Shopping Center, Inc. v. Stewart

272 So. 2d 507
CourtSupreme Court of Florida
DecidedJanuary 24, 1973
Docket41799
StatusPublished
Cited by87 cases

This text of 272 So. 2d 507 (University Plaza Shopping Center, Inc. v. Stewart) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973).

Opinion

272 So.2d 507 (1973)

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.

January 24, 1973.

*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 *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. Accordingly, 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 *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]

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mvw Management, LLC v. Regalia Beach Developers, LLC
230 So. 3d 108 (District Court of Appeal of Florida, 2017)
ATC Logistics Corp. v. Southeast Toyota Distributors, LLC
188 So. 3d 96 (District Court of Appeal of Florida, 2016)
Stacy Sanislo v. Give Kids The World, Inc.
157 So. 3d 256 (Supreme Court of Florida, 2015)
Royal Palm Hotel Property, LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc.
133 So. 3d 1108 (District Court of Appeal of Florida, 2014)
REPOR BROTHERS, INC. v. Moore
83 So. 3d 903 (District Court of Appeal of Florida, 2012)
Fidelity & Guaranty Insurance v. Ford Motor Co.
707 F. Supp. 2d 1300 (M.D. Florida, 2010)
On Target, Inc. v. Allstate Floridian Insurance Co.
23 So. 3d 180 (District Court of Appeal of Florida, 2009)
Church & Tower v. Bellsouth Telecom.
936 So. 2d 40 (District Court of Appeal of Florida, 2006)
H & H Painting & Waterproofing Co. v. Mechanic Masters, Inc.
923 So. 2d 1227 (District Court of Appeal of Florida, 2006)
Camp, Dresser & McKee, Inc. v. Paul N. Howard Co.
853 So. 2d 1072 (District Court of Appeal of Florida, 2003)
Greater Orlando Aviation v. Bulldog Airlines
705 So. 2d 120 (District Court of Appeal of Florida, 1998)
Zinz v. Concordia Properties, Inc.
694 So. 2d 120 (District Court of Appeal of Florida, 1997)
Gap, Inc. v. Brazilian Beat Tour, Inc.
689 So. 2d 1205 (District Court of Appeal of Florida, 1997)
Adloo v. H.T. Brown Real Estate, Inc.
686 A.2d 298 (Court of Appeals of Maryland, 1996)
Manuel v. City of Jacksonville (In re Blunt)
183 B.R. 302 (M.D. Florida, 1995)
Apol v. Shaw
647 So. 2d 139 (District Court of Appeal of Florida, 1994)
Ocean Divers, Inc. v. Choquet
627 So. 2d 131 (District Court of Appeal of Florida, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
272 So. 2d 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-plaza-shopping-center-inc-v-stewart-fla-1973.