WINN DIXIE STORES, INC., APPELLANT,
v.
D & J CONSTRUCTION CO., A/K/A D & J CONSTRUCTION, INC., APPELLEE
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Winn Dixie sought contractual indemnity from D & J Construction after an employee of D & J was injured on Winn Dixie's premises. The court reversed summary judgment against Winn Dixie, holding that the indemnity agreement clearly covered the claim despite D & J's lack of fault for the accident.
The indemnity agreement clearly covered the claim made against Winn Dixie. The language of the agreement encompassed indemnity for losses and claims arising from the presence or activity of D & J's employees on the premises, regardless of whether Winn Dixie or its servants were partially or wholly negligent.
[1] An indemnity agreement may cover claims arising from the presence or activity of the indemnitor's employees or equipment on the indemnitee's premises, even if the indemni…
[2] Summary judgment is improper when an indemnity agreement clearly covers the claim made against the indemnitee.
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 indemnity agreement between appellant and appellee clearly covered the claim made against Winn Dixie upon which it was seeking contractual indemnity from D & J”
Establishes the court's main holding that the indemnity agreement covered the claim at issue
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Join FLexlaw to unlock all legal intelligenceAn employee of D & J Construction slipped and fell in a puddle caused by a roof leak that was unrelated to D & J's work activities on Winn Dixie's pre…
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PER CURIAM.
We reverse the summary judgment against Winn Dixie on the grounds that the indemnity agreement between appellant and appellee clearly covered the claim made against Winn Dixie upon which it was seeking contractual indemnity from D & J. See John W. Eshelman & Sons, Inc. v. Seaboard Coast Line R. Co., 431 So. 2d 345 (Fla. 2d DCA 1983); Kressley-Davis, Inc. v. Winn-Dixie Stores, Inc., 340 So. 2d 501 (Fla. 3d DCA 1976); Joseph L. Rozier Machinery Co. v. Nilo Barge Line, Inc., 318 So. 2d 557 (Fla. 2d DCA 1975).
In this case the indemnity agreement covered “any claim or loss arising in any manner out of the presence or activity of [D & J] or any of our servants, agents, or employees or representatives or out of the presence of such equipment when such persons or equipment are on your premises for the purposes of performing services ... notwithstanding such accident or damage may have been caused in whole or in part or negligence of you [Winn Dixie] or any of your servants, agents or employees.” The employee of D & J slipped and fell in a puddle from a leak in a roof which was not part of D & J’s work. While D & J was not at fault, it appears that the language of the indemnity agreement clearly encompassed indemnity as to those losses and claims.
Although the indemnity agreement is identical, Snowhite Dust Control Services, Inc. v. Becker, 568 So. 2d 110 (Fla. 4th DCA 1990), is distinguishable on its facts as no agent or employee of Snowhite was present on the premises when the accident occurred. In footnote 1 the court specifically noted that it need not address the effect of the indemnity provision had that been the case. Id. at 111. Therefore, we limit Snowhite to its facts and reverse and remand for entry of a summary judgment on liability in Winn Dixie’s favor. GUNTHER and WARNER, JJ., concur. HERSEY, J., dissents with opinion.
HERSEY, Judge,
dissenting.
I would affirm on the authority of Snowhite Dust Control Services., Inc. v. Becker, 568 So. 2d 110 (Fla. 4th DCA 1990).
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Kitchens OF THE Oceans, Inc. v. McGLADREY & Pullen, LLP, 832 So. 2d 270 (Fla. 4th DCA 2002)…ore find that auditors’ cases in support of dismissal are distinguishable. The text of the hold-harmless provision is distinguishable from the provisions in the authorities argued by auditors. See, e.g., Winn Dixie Stores, Inc. v. D & J Constr. Co., 633 So. 2d 65, 65-66 (Fla. 4th DCA 1994) (holding that indemnity agreement covered the claim made against Winn Dixie upon which it was seeking contractual indemnity from D & J as the indemnity agreement covered “any claim or loss arising in any manner ... notwith…
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ALL Clean Bldg. Maint., Inc. v. Winn Dixie Stores, Inc., 655 So. 2d 1316 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. See Winn Dixie Stores, Inc. v. D & J Constr. Co., 633 So. 2d 65 (Fla. 4th DCA 1994); Kressley-Davis, Inc. v. Winn-Dixie Stores, Inc., 340 So. 2d 501 (Fla. 3d DCA 1976).…
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Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 711 So. 2d 1255 (Fla. 3d DCA 1998)…t, fixtures, machinery, appliances of apparatus therein.” (Emphasis added.) We think this language clearly expresses the parties intent that Milam be held harmless for any acts of its own negligence. See Winn Dixie Stores, Inc. v. D & J Constr. Co., 633 So. 2d 65 (Fla. 4th DCA 1994); Etiole Int’l N.V. v. Miami Elevator Co., Inc., 573 So. 2d 921 (Fla. 3d DCA 1990); Middleton v. Lomaskin, 266 So. 2d 678 (Fla. 3d DCA 1972). Regardless of the validity of the indemnification clause, its relevance for purposes of…
Authorities Cited
- Joseph L. Rozier Mach. Co. & Cont'l Cas. Co. v. Nilo Barge Line, Inc., 318 So. 2d 557 (Fla. 2d DCA 1975)
- Albert v. Salemi, 431 So. 2d 345 (Fla. 2d DCA 1983)
- Kressley-Davis, Inc. v. Winn-Dixie Stores, Inc., 340 So. 2d 501 (Fla. 3d DCA 1976)
- Snowhite Dust Control Servs., Inc. v. Becker, 568 So. 2d 110 (Fla. 4th DCA 1990)