CB CONTRACTORS, LLC

v.

SAXONIS CUSTOM PAINTING, INC., FARRIS GYPSUM FLOORS OF FLORIDA, INC. D/B/A FARRIS FLOOR SYSTEMS, SUPERIOR FRAMING COMPANY AND SIMPSON & RYBA CONSTRUCTION, INC.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CB CONTRACTORS, LLC,

Appellant,

v. Case No. 5D17-1384, 5D17-1606, and 5D17-2129

ALLENS STEEL PRODUCTS, INC., ET AL.,

Appellees. ________________________________

Opinion filed December 14, 2018

Appeal from the Circuit Court for Brevard County, Charles J. Roberts, Judge.

David C. Borucke, of Cole, Scott & Kissane, P.A., Tampa, for Appellant.

Carol M. Rooney, of Butler Weihmuller Katz Craig LLP, Tampa, for Appellees, Allen Steel Products, Inc. and J&S Plastering, Inc.

Wayne Tosko and Estaban F. Scornik, of Vasquez & Tosko, LLP, Orlando, for Appellee, Saxonis Custom Painting, Inc. Sarah Lahlou-Amine, of Banker Lopez Gassler, P.A., Tampa, for Appellee, Farris Gypsum Floors of Florida, Inc. d/b/a Farris Floor Systems. Hinda Klein, of Conroy Simberg, Hollywood, for Appellee, Simpson & Ryba Construction, Inc.

PER CURIAM.

We consolidate these appeals, sua sponte, to address common questions of law in these actions between Appellant, a general contractor, and Appellees, the subcontractors for a residential condominium construction project involving several buildings. After the condominium association brought an action against Appellant for defects in the construction, Appellant brought claims against Appellees for contractual and common law indemnification. The lower court granted Appellees’ motions for summary judgment, concluding that the contractual indemnity claims were based upon a “void and unenforcable” contractual provision and that Appellant failed to allege the elements of common law indemnity. We affirm in part, reverse in part, and remand for further proceedings. The contractual indemnity clauses at issue provide in material part:

11. Indemnity as to Liabilities. [Appellant] and the Owner shall not be liable or responsible for, and shall be saved and held harmless by [Appellees] from and against any and all suits, actions, losses, damages, claims, or liability of any character, type or description, including all expenses of litigation, court costs, and attorney fees arising out of, related to, directly or indirectly, the performance of the Subcontractor. Subcontractor’s indemnity obligations hereunder shall apply regardless of whether or not the claims, damages, losses, and expenses or causes of action are caused in part by a party indemnified hereunder and regardless of whether or not the claim relates to a claim under the worker’s compensation policy of Subcontractor. Such obligations to indemnify shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnification which would otherwise exist as to any party or person in any other portion of this Subcontract under law.

(Emphasis added). Because the subject indemnity clauses are only void and unenforcable as to the “portion” purporting to impose the indemnity obligation for the acts or omissions of Appellant, we conclude that the trial court erred in ruling that the entirety of the clauses are void. Cuhaci & Peterson Architects, Inc. v. Huber Constr. Co., 516 So. 2d 1096, 1097 (Fla. 5th DCA 1987); accord Pilot Constr. Servs., Inc. v. Babe’s Plumbing, Inc., 111 So. 3d 955, 959 (Fla. 2d DCA 2013) (stating that section 725.06 would only bar indemnification claims based on indemnitee’s own negligence); Linpro Fla. Inc. v. Almandinger, 603 So. 2d 666, 667 n.1 (Fla. 1st DCA 1992) (notwithstanding void portion of indemnity clause for failure to comply with section 725.06, clause is otherwise enforceable to extent of indemnitor’s own negligence); see also Mid-Continent Cas. Co. v. Constr. Servs. & Consultants, Inc., No. 06-cv-80922, 2008 WL 896221, at *4 (S.D. Fla.