WESTINGHOUSE ELECTRIC CORPORATION, APPELLANT,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA D/B/A MIAMI AVIATION AUTHORITY, APPELLEE
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Westinghouse appealed a judgment awarding attorney's fees to Dade County under a contractual indemnity provision. The court reversed and remanded, holding that Dade County could recover attorney's fees only if it was not negligent in the underlying incident, and that the record lacked sufficient evidence to support the award.
A contractual indemnity must be construed to deny attorney's fees to the indemnitee if those fees were incurred in defending a claim based on the indemnitee's own negligence. Additionally, the indemnitee bears the burden of proving that it was not negligent and that the facts of the case bring the claim within the terms of the indemnity contract.
[1] An indemnity agreement must contain a specific provision to require indemnity against the indemnitee's own negligence.
[2] A stipulation between parties can prevent the assertion of an affirmative defense, thereby entitling the other party to indemnity.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the subject contract of indemnity must be construed to allow an award of attorney's fees for the claimant Dade County in defending the prior action herein unless the fees were incurred in defending a claim based on its own negligence”
Establishes the core holding that indemnity does not cover fees incurred in defending claims based on the indemnitee's own negligence
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Join FLexlaw to unlock all legal intelligenceWestinghouse and Dade County had a contract containing an indemnity clause. A prior action was brought against Dade County, which incurred attorney's …
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PER CURIAM.
The final order awarding attorney’s fees on a contractual indemnity theory is reversed and the cause is remanded for further proceedings upon a holding that: (a) the subject contract of indemnity must be construed to allow an award of attorney’s fees for the claimant Dade County in defending the prior action herein unless the fees were incurred in defending a claim based on its own negligence, Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. 2d 487, 489 (Fla.1979); University Pla za Shopping Center v. Stewart, 272 So. 2d 507, 511 (Fla.1973); O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. 5th DCA 1982); Jones v. Holiday Inns, Inc., 407 So. 2d 1032, 1034 (Fla. 1st DCA 1981), pet. for review denied, 417 So. 2d 329 (Fla.1982); Leadership Housing Systems of Florida v. T & S Electric, 384 So. 2d 733, 734 (Fla. 4th DCA 1980), (b) no evidence or stipulation of facts was adduced below on Dade County’s claim for indemnity and therefore no proofs were presented to bring the said claim within the terms of the subject indemnity contract, and (c) the judgment must therefore be reversed and the cause remanded for an evidentiary hearing at which Dade County will have the burden to show — in order to be entitled to attorney’s fees under the said contract of indemnity — that it defended the prior action and incurred attorney’s fees herein although it was not negligent in the incident sued upon. Jones v. Holiday Inns, Inc., supra at 1034; see also Crystal River Enterprises v. NASI, Inc., 399 So. 2d 77, 79 (Fla. 5th DCA 1981) (indemnitee required to prove all actionable facts leading to recovery); Walter Taft Bradshaw & Associates v. Bedsole, 374 So. 2d 644, 647 (Fla. 4th DCA 1979) (indemnitee required to state cause of action for contractual indemnity).
Reversed and remanded.
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Citator
Cited By
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Metro. Dade Cnty. v. CBM Indus. OF Minn., Inc., 776 So. 2d 937 (Fla. 3d DCA 2000)…the trial court is limited to reviewing the allegations raised in the underlying Complaint. See McCreary v. Florida Residential Property and Cas. Joint Underwriting Ass’n, 758 So. 2d 692 (Fla. 4th DCA 1999); Westinghouse Elec. Corp. v. Dade County, 472 So. 2d 866 (Fla. 3d DCA 1985). In the instant case, Count I of the Amended Complaint (“Complaint”) alleges that the County, “by and through its agents and employees,” (emphasis supplied) negligently and carelessly maintained and controlled the premises. Count…
Authorities Cited
- Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973)
- Charles POE Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla. 1979)
- O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982)
- Oceanus McCALL v. State, 374 So. 2d 644 (Fla. 1st DCA 1979)
- Jones v. Holiday Inns, Inc., 407 So. 2d 1032 (Fla. 1st DCA 1981)
- Crystal River Enters., Inc. v. Nasi, Inc., 399 So. 2d 77 (Fla. 5th DCA 1981)
- Leadership Hous. Sys. OF Fla., Inc. v. T & S Elec., Inc., 384 So. 2d 733 (Fla. 4th DCA 1980)