ALLIANZ INSURANCE COMPANY, APPELLANT,
v.
GOLDCOAST PARTNERS, INC., F/K/A LANDEL ENTERPRISES III, INC., D/B/A BURGER KING, APPELLEE

Fla. 4th DCA | 1996-12-26
No. 96-1120
DELL and GROSS, JJ., concur.
684 So. 2d 336 Florida District Court of Appeal, Fourth District (1996) Caution
Cited by 6 cases

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Holding

A contract provision requiring a supplier to indemnify a franchisee does not provide coverage under the supplier's liability policy for the franchisee's own negligence unless such intent is expressed clearly and unequivocally.


Headnotes

[1] Indemnity provisions that purport to shield a party from liability for its own negligence must be expressed in clear and unequivocal terms.

[2] An insurer is not obligated to provide coverage under a policy for an insured contract unless the contract clearly and unequivocally assumes the insured's tort liability…

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Facts & Procedural History

A patron injured by a chair sued a Burger King franchisee and the chair manufacturer. The manufacturer's insurer settled the claim and sought a determ…

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Opinion of the Court
KLEIN, Judge.

KLEIN, Judge.

An insurer appeals an order determining that a Burger King franchisee is insured under a policy issued to a chair manufacturer, for an accident in which a patron was injured by a chair. We conclude that because the contract between the manufacturer and Burger King did not indemnify the Burger King franchisee for its own negligence, there is no coverage.

The patron sued the Burger King franchisee, appellee Goldcoast, and the chair manufacturer, Decor Concepts, Inc. Allianz, the insurer of Decor, settled the claim with the injured plaintiff and obtained a release of all defendants. Further litigation ensued between Decor, Goldcoast, and Allianz, and the question presented by this appeal is whether there was insurance coverage for Goldcoast under the Allianz policy which insured Decor. The Allianz insurance policy provided liability coverage for bodily injury assumed by Decor through contracts, defining such an “insured contract” as:

F. That part of any other contract or agreement pertaining to your [Decor’s] business ... under which you [Decor] assume the tort liability of another party to pay for ‘bodily injury1 or ‘property damage’ to a third person or organization.

Decor did assume, in its contract with Burger King, liability to indemnify Burger King and its franchisees to some extent:

Paragraph 9. Supplier [Decor] agrees to defend, indemnify and hold harmless BKC, its parent, affiliates, subsidiaries, and its franchisees, of and from all claims, demands, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees arising from injury, illness, property damage and/or death caused, in whole or in part, by contact with or use of the products, unless (and then only to the extent) such injury, illness, property damage and/or death is caused by BKC, its parent, affiliates, subsidiaries or its franchisees _ (Emphasis added.)

The injured plaintiff alleged in his suit against Decor and the Burger King franchisee, Goldcoast, that Goldcoast was negligent in fading to repair the chair which it knew was in need of repair, and for failing to properly maintain and inspect its premises. The issue, therefore, is whether, under the contract, Decor was obligated to indemnify Goldcoast, for the active negligence of Gold-coast.

Contracts purporting to indemnify a party for its own negligence are viewed with disfavor, and they will not be enforced unless they express such an intent in clear and unequivocal terms. University Plaza Shopping Ctr. 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).

The indemnity provision in this contract does not meet those requirements. Even if it did not contain the exception for injuries caused by Burger King or its franchisees, the general language leading up to that exception would be insufficient to require Decor to indemnify Goldcoast for Goldcoast’s own negligence. The general provision is similar to the provisions in Charles Poe and University Plaza, and they were held not to have provided indemnity against the parties’ own negligence. Since Decor did not agree to indemnify Goldcoast for Goldcoast’s own negligence under the contract, there was no coverage provided under the policy for Goldcoast on an insured contract.

The trial court also found that Gold-coast was an additional insured by virtue of paragraph 10 of the Decor contract with Burger King, which provides in part:

Paragraph 10. Supplier [Decor] agrees to maintain during the entire term of the Agreement comprehensive liability insurance, including product liability coverage, in minimum amounts of ... Supplier [Decor] shall promptly provide BKC with certificates of insurance evidencing such coverage and naming BKC, its parent, subsidiary and affiliates as additional insureds and each certificate shall ...

Goldcoast argues that paragraph 10 should be read separate and apart from paragraph 9, and that it makes Goldcoast an additional insured even if Decor had no duty under paragraph 9 to indemnify Goldcoast for Gold-coast’s own negligence. We disagree. That argument was also made in University Plaza, and the court held that a similar provision, requiring the tenant to obtain insurance to insure the landlord, did not provide for insurance coverage beyond the tenant’s liability. 272 So. 2d at 512. In the present ease Decor is in the same position as the tenant in University Plaza. It therefore follows that if there was no coverage for the active negligence of Goldcoast under paragraph 9, there was no coverage by virtue of paragraph 10.

We therefore reverse.

DELL and GROSS, JJ., concur.


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Citator

Cited By

  • Container Corp. OF Am. v. Md. Cas. Co., 707 So. 2d 733 (Fla. 1998)
    …case for further proceedings consistent with this opinion. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, HARDING and WELLS, JJ., concur. ANSTEAD, J., recused. . We reject Maryland’s reliance upon Allianz Ins. Co. v. Goldcoast Partners, Inc., 684 So. 2d 336 (Fla. 4th DCA 1996), because there was no indication in that case that the claimant had been named in the policy as an additional insured.…
  • Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So. 2d 433 (Fla. 3d DCA 2002)
    …states, "a third person,” as in an indemnity or contribution agreement, to which the exception is applicable. See Florida Municipal Power Agency v. Ohio Cas. Ins. Co., 714 So. 2d 660 (Fla. 5th DCA 1998); Allianz Ins. Co. v. Goldcoast Partners, Inc., 684 So. 2d 336 (Fla. 4th DCA 1996). . The force of this argument is considerably diminished because, as we believe, there is spoliation coverage for any case in which the plaintiff is not an employee who sustained her injuries in the course of employment with the…
  • Zinz v. Concordia Props., Inc., 694 So. 2d 120 (Fla. 4th DCA 1997)
    …clearly and unequivocally stated. The general terms “indemnify ... against any and all claims” did not sufficiently disclose the intention to indemnify against the negligence of the indemnitee. Id.; see Allianz Ins. Co. v. Goldcoast Partners, Inc., 684 So. 2d 336, 337 (Fla. 4th DCA 1996); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318, 320 (Fla. 4th DCA 1984). When a contract is ambiguous as to the release of a party for its own negligence, the release is properly excluded from evidence. See MMH Venture v.…

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