GULF POWER COMPANY, A FOREIGN COMPANY, APPELLANT,
v.
COX CABLE CORPORATION, APPELLEE
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Gulf Power Company appeals the trial court's grant of summary judgment in favor of Cox Cable Corporation on Gulf's third-party indemnification and breach of contract claims arising from a cable installation injury. The appellate court reverses, finding genuine issues of material fact precluding summary judgment on both the breach of contract claim and the enforceability of the indemnification clause.
The court reversed summary judgment on all grounds. First, the trial court erred by narrowly interpreting paragraph 9; a fact finder could reasonably infer Cox had a duty not only to hire experienced contractors but also to warn and correct deficiencies when aware of dangerous practices. Second, the indemnification clause was sufficiently specific to cover joint negligence situations under Florida law, and factual issues remained regarding whether Gulf and Cox were joint tort-feasors. Third, § 725.06 does not apply because Gulf was granting Cox a license to use property, not contracting for construction improvements.
[1] A contract provision requiring a licensee to utilize experienced employees and contractors can be interpreted more broadly than merely hiring an experienced contractor, p…
[2] Contracts that purport to indemnify a party against its own wrongful acts are disfavored in Florida and will only be enforced if they clearly and unequivocally express an…
Previewing 2 of 5 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“In construing a provision of a contract, the court should look at the contract as a whole to ascertain the intent of the parties.”
Establishes the proper standard for interpreting contract terms, rejecting Cox's narrow reading of paragraph 9.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGulf and Cox entered into a licensing agreement on January 1, 1978, allowing Cox to attach cables to Gulf's utility poles. The contract required Cox t…
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WOLF, Judge.
Gulf Power Company (Gulf) seeks review of the trial court’s order granting Cox Cable Corporation’s (Cox) motion for summary judgment as to Gulf’s third party action. We find merit in Gulfs contentions and reverse.
This litigation arises from a contract entered into by Gulf and Cox on January 1, 1978. The contract was a licensing agreement which allowed Cox to attach cables, wires, and appliances to poles belonging to Gulf. Among other items, the contract required Cox to ensure the safe installation and maintenance of any wires, cables or devices attached to the poles belonging to Gulf; Cox also was required to indemnify Gulf. Cox contracted with Burnup and Sims, Inc., a cable installation contractor, to perform the installation.
On July 16, 1981, Michael Lewis, an employee of Burnup and Sims, suffered electrical burns while in the process of stringing cable. Mr. Lewis brought suit against Gulf. Gulf then filed a third party complaint against Cox seeking indemnification and claiming breach of contract and negligence on the part of Cox. Gulf also asserted claims against Burnup and Sims.
The third party complaint alleged that Cox was negligent in its performance of the contract and that the negligence of Cox was the sole and proximate cause of Michael Lewis’ injuries. Gulf further alleged that Cox breached the terms of paragraph 9 of its contract with Gulf. Paragraph 9 reads in pertinent part:
In the installation and maintenance of its facilities, licensee shall utilize employees and contractors who are experienced in working with and around energized electrical conductors.
Gulf also sought indemnification, pursuant to the contract, from Cox for any damages which Gulf might be required to pay Lewis as a result of his injuries.1
In the original cause of action by Michael Lewis, summary judgment was granted in favor of Gulf. The ruling was appealed. This court reversed because it determined that a question of fact existed regarding the sufficiency of Gulf Power’s warning to Michael Lewis regarding the dangerous conditions arising from unsafe work practices of the cable workers (overtightening wires). Lewis v. Gulf Power Co., 501 sold 5, 7 (Fla. 1st DCA 1987), rev. denied, 508 So. 2d 14 (Fla.1987). The determination by the district court of appeal did not address the causes of action between Gulf and Cox. Gulf eventually settled with Michael Lewis. Cox then sought summary judgment against Gulf. Both parties submitted affidavits; the most relevant facts contained therein revealed:
1) Cox contracted with Burnup and Sims to install the cable line. Cox had no employees working on the cable installation. Burnup and Sims, a cable installation contractor personally known by Cox to be well qualified and one of the largest, most established cable companies in the nation, to perform the work.
2) Cox had been notified on several occasions by Gulf of problems with Cox’s contractor, Burnup and Sims, Inc., including incidents involving over-tightening of lines. In addition, Cox assured Gulf that it would contact Burn-up and Sims to assure that the problems were corrected.
The trial court granted summary judgment, finding in pertinent part:
1) Gulf Power’s claim was for contractual indemnification, based on Cox Cable’s alleged breach of Paragraph 9 of its contract with Gulf Power. 2) Cox Cable fully complied with the terms of its contract with Gulf Power, specifically paragraph 9, by hiring Burnup and Sims, an experienced cable company.
3) The contractual indemnity language relied upon by Gulf Power is invalid and unenforceable under Florida law because it was not specific enough to indemnify Gulf against its own negligence.
4) Section 725.06, Florida Statutes, pre-eludes utilization of the indemnification clause in the instant case.
We find that the trial judge erred in granting summary judgment.
Summary judgment is appropriate only when there is no genuine issue of fact and the movant is entitled to judgment as a matter of law. Zygmont v. Smith, 548 So. 2d 902 (Fla. 1st DCA 1989), and TriCity Used Cars, Inc. v. Grim, 566 So. 2d 922 (Fla. 1st DCA, 1990). The burden is upon the moving party to conclusively demonstrate that there are no genuine issues of material fact existing at the time of the motion. Clark v. Van de Walle, 332 So. 2d 360 (Fla. 2nd DCA 1976). In determining whether to grant a summary judgment, the court should not only consider the pleadings but also must examine the pertinent discovery as well as any affidavits on file. Rule 1.510(c), Fla.R.Civ.P. All inferences reasonably justified by the materials in front of the court must be liberally construed in favor of the nonmoving party. Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla.1965). In light of these general principals, we examine the issues before this court.
I. Whether the trial court erred in determining that Cox fully complied with its contractual obligations under paragraph 9 and was entitled to a summary judgment as to Gulf’s claim for breach of contract.
Cox asserts that the trial judge properly limited its scope of inquiry to the specific wording of paragraph 9 in determining whether Cox breached its contractual obligation.2 Thus, they assert that the determination that Cox hired a contractor who was experienced in working with and around energized electrical conductors was dispositive. We feel that this was too narrow an interpretation. In construing a pro vision of a contract, the court should look at the contract as a whole to ascertain the intent of the parties. J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So. 2d 38 (Fla. 3rd DCA 1978); Mount Vernon Fire Ins. Co. v. Editorial America, 374 So. 2d 1072 (Fla. 3rd DCA 1979).
In light of the other provisions in the contract relating to Cox’s responsibilities for injuries to parties working on the lines, a fact finder can reasonably infer that Cox not only had a duty to hire experienced contractors, but Cox also had a duty to make all reasonable efforts to correct or to warn all parties when they became aware of deficiencies in the practices employed by their contractor or that their contractor was utilizing inexperienced employees in an inherently dangerous situation.3 See Lewis v. Gulf Power, supra, at 7. We, therefore, find that the trial court erred in granting summary judgment on the issue of breach of contract.
II. Whether the trial court erred in granting summary judgment for Cox on Gulfs claim for indemnification.
Contracts which purport to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. 2d 487 (Fla.1979). Such contracts protecting a party in situations where they are solely negligent will be enforced only if they express a clear and unequivocal intent to protect the indemnitee from its own wrongful acts. University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla.1973). The degree of specificity required for indemnification in cases of joint negligence is, however, less stringent. United Parcel Service of America, Inc. v. Enforcement Security Corp., 525 So. 2d 424 (Fla. 1st DCA 1987).
The indemnification language in the instant case is similar to the language in United Parcel Service of America, Inc. which this court held was sufficient to sustain indemnification in cases where the parties are jointly liable.
In light of the affidavits in the instant case indicating Cox’s knowledge of the potentially dangerous situation, a jury could reasonably infer that Cox as well as Gulf was negligent in not informing the plaintiff of the known dangerous condition. There were still factual issues to be resolved concerning whether Gulf and Cox were, in fact, joint tort-feasors. The trial court, therefore, erred in determining that the indemnification clause was invalid and unenforceable under Florida law. See United Parcel Service of America, Inc. III. Whether section 725.06, Florida Statutes, precludes Gulf from maintaining an action for indemnification against Cox.
Section 725.06, Florida Statutes, provides:
Construction contracts; limitation on indemnification. — Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract or its performance shall be void and unenforceable unless:
(1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or (2) The person indemnified by the contract gives a specific consideration to the indemnitor for the indemnification that shall be provided for in his contract and section of the project specifications or bid documents, if any.
This statutory provision expressly applies in situations when an owner of real property contracts for improvements to property. In the instant case, however, Gulf was not seeking to have improvements made, but rather Cox was seeking a license to utilize the property of Gulf. Section 725.06, Florida Statutes, therefore, does not apply in this situation and would not preclude Gulf from seeking indemnification.
In view of the foregoing, we reverse the final summary judgment and remand to the trial court.
WENTWORTH and MINER, JJ., concur. . The contract between Gulf (licensor) and Cox (licensee) contains the following sections concerning indemnification:
Page 1 of the contract contains the following provision:
"Whereas complete indemnification of li-censor is contemplated hereunder.”
Page 2 of the contract contains the following language:
"assent [to proposed attachment] by licensee shall not deprive licensee of full indemnification which is a prime condition of the undertaking."
Paragraph 10 of the contract reads in pertinent part:
Licensee shall indemnify, protect and save the licensor forever harmless from and against all claims and demands for damage to property and injury or death, including but not restricted to employees of licensees or employees of any contractor or subcontractor performing work for licensee ... which may arise out of or caused by erecting material.
. Appellee also asserts that the third party complaint inadequately pleads a case for contribution, indemnification, negligence, and breach of contract. While we agree that the pleading appears somewhat deficient, the appellee never moved to dismiss or for a more definite statement. The pleading here was not so deficient as to require granting a summary judgment. Further, in cases where affidavits reveal a clear cause of action, the trial court should not grant a summary judgment which does not grant leave to amend the complaint. Dorset House Ass'n, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3rd DCA 1979).
. We are not holding that Cox had a duty to actively supervise its independent contractor, Burnup and Sims, but rather that based on the contract in the instant case, a jury could reasonably find a duty to attempt to rectify a potentially dangerous situation which they became aware of.
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COX Cable Corp. v. Gulf Power Co., 591 So. 2d 627 (Fla. 1992)…GRIMES, Justice. We review Gulf Power Co. v. Cox Cable Corp. 570 So. 2d 379 (Fla. 1st DCA 1990), because of its conflict with Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. 2d 487 (Fla.1979). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Cox Cable Cor…
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Reverend Donagene Mecier v. Broadfoot, 584 So. 2d 159 (Fla. 1st DCA 1991)…. Where reasonable men might justifiably make different inferences and deductions to reach different conclusions as to whether a genuine issue of material fact exists, the issue should be submitted to the jury. See Gulf Power Co. v. Cox Cable Corp., 570 So. 2d 379, 381 (Fla. 1st DCA 1990); Tri-City Used Cars, Inc. v. Grim, 566 So. 2d 922 (Fla. 1st DCA 1990); Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975). As this court stated in Connell at 196: A summary judgment may be granted only in cases where the…
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Kone, Inc. v. Robinson, 937 So. 2d 238 (Fla. 1st DCA 2006)…la.2004). Examining the statute’s language, we have failed to discern a legislative intent to apply section 725.06, Florida Statutes (1999), to non-construction contracts such as the one involved in this case. See Gulf Power Co. v. Cox Cable Corp., 570 So. 2d 379, 383 (Fla. 1st DCA 1990) (“This statutory provision expressly applies in situations when an owner of real property contracts for improvements to property.”), quashed in part on other grounds, 591 So. 2d 627 (Fla.1992). To fall within the statute, a…
Authorities Cited (11 total)
- Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Charles POE Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla. 1979)
- J & S Coin Operated Machs., Inc. v. Gottlieb, 362 So. 2d 38 (Fla. 3d DCA 1978)
- Mount Vernon Fire Ins. Co. v. Editorial Am., S.A., 374 So. 2d 1072 (Fla. 3d DCA 1979)
- Dorset House Ass'n, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3d DCA 1979)
- Zygmont v. Smith, 548 So. 2d 902 (Fla. 1st DCA 1989)
- Clark v. VAN DE Walle, 332 So. 2d 360 (Fla. 2d DCA 1976)
- Carter v. State, 525 So. 2d 424 (Fla. 1st DCA 1987)