Thursday, August 18, 2016

Insurance -- Uninsured motorist -- Appeals -- Appeal of order which adjudicated only claim that policy provided stacked uninsured/underinsured motorist coverage is premature where intertwined counts remain pending

41 Fla. L. Weekly D1909a

Insurance -- Uninsured motorist -- Appeals -- Appeal of order which adjudicated only claim that policy provided stacked uninsured/underinsured motorist coverage is premature where intertwined counts remain pending -- Rule of Appellate Procedure 9.110(m) provides for interlocutory appeals for third-party claims, and not for first-party claims seeking UM/UIM benefits

GEICO GENERAL INSURANCE COMPANY, Appellant, vs. RICARDO PEREZ AND LUZ PEREZ, his wife, Appellees. 3rd District. Case No. 3D16-1601. L.T. Case No. 14-4053. Opinion filed August 17, 2016. An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith, Judge. Counsel: Shutts & Bowen LLP, and Frank A. Zacherl and Jake Monk, for appellant. Silverstein, Silverstein & Silverstein, P.A., and Gregg A. Silverstein; The Powell Law Firm, P.A., and Brett C. Powell, for appellees. 

(Before ROTHENBERG, FERNANDEZ and SCALES, JJ.) 

(PER CURIAM.) Appellant GEICO General Insurance Company appeals an order of the trial court, captioned “Final Declaratory Judgment as to UM/UIM Coverage.” We grant Appellees Ricardo Perez and Luz Perez's motion to dismiss GEICO's appeal as premature. 

 The order adjudicates only one count of Appellees' six-count complaint, to wit: Appellees' claim that GEICO's insurance policy provided stacked uninsured/underinsured motorist coverage for a November 29, 2013 crash. The remaining counts of Appellees' complaint are intertwined with, and are not independent of, the adjudicated count. Irrespective of how the order is captioned, the order is non-final and non-appealable; related claims remain pending between the parties. GEICO Gen. Ins. Co. v. Pruitt, 122 So. 3d 484, 487 (Fla. 3d DCA 2013). 

We agree with Appellees that rule 9.110 (m) of the Florida Rules of Appellate Procedure (which provides for appeals of non-final orders that determine the existence or nonexistence of insurance coverages in cases in which a claim has been made against an insured and coverage is disputed by the insurer) is inapplicable to vest us with jurisdiction to review the order on appeal. Rule 9.110 (m) provides for interlocutory appeals for third-party claims, and not for first-party claims seeking UM/UIM benefits. Workmen's Auto Ins. Co. v. Franz, 24 So. 3d 638, 640 (Fla. 2d DCA 2009); USAA Cas. Ins. Co. v. Jones, 946 So. 2d 1127, 1128 (Fla. 1st DCA 2006). 

Appeal dismissed.

* * *

Torts -- Slip and fall -- Action against company which had contracted to maintain elevators at condominium by plaintiff who slipped and fell on oil which had leaked into hallway from Victaulic seal in elevator -- Error to enter summary judgment for defendant where there was factual issue as to how long seal had been leaking before plaintiff's fall

41 Fla. L. Weekly D1903a

Torts -- Slip and fall -- Action against company which had contracted to maintain elevators at condominium by plaintiff who slipped and fell on oil which had leaked into hallway from Victaulic seal in elevator -- Error to enter summary judgment for defendant where there was factual issue as to how long seal had been leaking before plaintiff's fall -- Where defendant presented evidence that elevator had been inspected three days prior to plaintiff's fall, and that seal was not leaking at that time, but plaintiff submitted affidavit of mechanical engineering expert which opined that seal had been leaking between four-and-a-half to eighteen days, it was error to discount expert's affidavit which created a material issue of fact

JONATHAN McNABB, Appellant, v. TAYLOR ELEVATOR CORP.; BAY VILLAGE CLUB CONDOMINIUM ASSOCIATION, INC.; and D.G. SUITOR & ASSOCIATES, INC., Appellees. 2nd District. Case No. 2D15-4838. Opinion filed August 17, 2016. Appeal from the Circuit Court for Lee County; Elizabeth V. Krier, Judge. Counsel: Thomas B. DeMinico of Lusk, Drasites, & Tolisano, PA., Cape Coral, for Appellant. Michael J. Schwartz of Schwartz & Kirschbaum, Miami, for Appellee Taylor Elevator Corp. No appearance for remaining Appellees.

(KHOUZAM, Judge.) Jonathan McNabb appeals the final summary judgment entered in favor of Taylor Elevator Corp. We reverse. 

The dispute in this case arose after McNabb slipped and fell near an elevator on the premises of Bay Village Club Condominium Association, Inc. Bay Village owned the premises but contracted with Taylor Elevator Corp. to maintain its elevators. At some point prior to McNabb's fall, a Victaulic seal in the elevator machinery broke and leaked oil into the machine room and out into the hallway. McNabb slipped and fell on the oil, injuring himself. Darren Gulmy, an elevator service technician, serviced the leak after McNabb's fall. In his deposition, Gulmy stated that the Victaulic seal was leaking at a rate of a drip every two seconds. He also testified that the oil on the floor of the machine room was a quarter-inch deep.

McNabb filed suit alleging that Bay Village and Taylor Elevator were negligent for failing to properly maintain the elevator and surrounding area. Bay Village and Taylor Elevator moved for summary judgment. Taylor Elevator submitted evidence showing that three days prior to McNabb's fall, it had inspected the elevator machinery, including the Victaulic seal. The inspectors testified in their depositions that the seal was not leaking at time of the inspection. In opposition to Taylor's motion for summary judgment, McNabb submitted the affidavit of Dr. Charles Benedict, a mechanical engineering expert. In his affidavit, Dr. Benedict opined, in pertinent part, that the Victaulic seal had been leaking between four-and-a-half to eighteen days. He based this opinion on the flow rate of the oil leaking from the seal as observed by Gulmy, drip tests based on Gulmy's description, the depth of the oil observed by Gulmy, and the dimensions of the machine room.

The trial court granted Taylor Elevator's motion for summary judgment.1 In doing so, it discounted Dr. Benedict's affidavit:
I'm going to discount this affidavit of Charles Benedict, because I don't believe it's based on any actual facts. To me this is just really more in the line of pleading because he's saying theoretically speaking, et cetera, et cetera, et cetera. And [Taylor Elevator has] a ton of evidence that indicates that three days before this slip and fall there was nothing on the floor. It was inspected, there [were] no problems that anybody could see.
On appeal, McNabb argues that the trial court erred in granting summary judgment in favor of Taylor Elevator because Dr. Benedict's affidavit created a material issue of fact.2 We agree.

“This court reviews de novo a trial court's decision on a motion for summary judgment.” Bernhardt v. Halikoytakis, 95 So. 3d 1006, 1008 (Fla. 2d DCA 2012). The burden is on the moving party “to come forward with competent evidence to demonstrate the nonexistence of a material issue of fact.” Id. Supporting or opposing affidavits must set forth facts based on personal knowledge “as would be admissible in evidence.” Fla. R. Civ. P. 1.510(e); see also W. Edge II v. Kunderas, 910 So. 2d 953, 954 (Fla. 2d DCA 2005). Once a movant meets his or her initial burden, the burden shifts to the opposing party to come forward with evidence to the contrary. First N. Am. Nat'l Bank v. Hummel, 825 So. 2d 502, 503 (Fla. 2d DCA 2002). In ruling on the motion, the trial court is precluded from weighing the evidence. 4 Corners Ins., Inc. v. Sun Publ'ns of Fla., Inc., 5 So. 3d 780, 784 (Fla. 2d DCA 2009). “[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Id. (alteration in original) (quoting Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000)). 

Although Taylor Elevator produced evidence tending to show that the Victaulic seal was not leaking at the time of its inspection three days before McNabb fell, Dr. Benedict opined that the oil must have been leaking for four-and-a-half to eighteen days prior to the accident. This conflicting evidence created a material issue of fact. The trial court erred in finding that Dr. Benedict's affidavit was not based on any facts. Dr. Benedict's conclusions as to the duration of the leak were based on a drip test, Gulmy's observation of the drip rate, the depth of the oil as described by Gulmy, and the dimensions of the machine room.3 Moreover, the trial court improperly weighed the evidence when it discounted Dr. Benedict's affidavit and reasoned that Taylor Elevator had a large amount of evidence indicating that the seal was not leaking at the time of the inspection. Accordingly, we reverse the summary judgment entered in favor of Taylor Elevator and remand to the trial court for further proceedings consistent with this opinion.  Reversed and remanded.

(VILLANTI, C.J., and SALARIO, J., Concur.)
 __________________

 1The trial court also granted summary judgment in favor of Bay Village. That judgment is the subject of appeal number 2D15-5613.

 2McNabb also argues that the trial court erred in passing on the credibility of Dr. Benedict. At one point in addressing the affidavit, the trial court described the affidavit as “not credible.” To the extent that the trial court was addressing the credibility of Dr. Benedict, it erred. See Arce v. Haas, 51 So. 3d 530, 531 (Fla. 2d DCA 2010) (“When considering a motion for summary judgment, the trial court may not weigh the credibility of witnesses or resolve disputed issues of fact.”).

 3The trial court did not fully assess Dr. Benedict's affidavit under the Daubert standard. See § 90.702, Fla. Stat. (2015). We decline to engage in such an analysis for the first time on appeal and express no opinion as to whether the affidavit meets that standard.

* * *

Trial court abused discretion in denying insurer's motion for remittitur of damages for lost past earnings and lost future earning capacity where awards were primarily based on insured's speculative testimony about his potential earnings if he had been able to continue to operate his new business

41 Fla. L. Weekly D1870a
op of Form
Insurance -- Uninsured motorist -- Damages -- Trial court abused discretion in denying insurer's motion for remittitur of damages for lost past earnings and lost future earning capacity where awards were primarily based on insured's speculative testimony about his potential earnings if he had been able to continue to operate his new business
 
SAFECO INSURANCE COMPANY OF ILLINOIS, Appellant, v. ADRIAN FRIDMAN, Appellee. 5th District. Case No. 5D12-428. Opinion filed August 12, 2016. Appeal from the Circuit Court for Orange County, Stan Strickland, Judge. Counsel: Anthony J. Russo, of Butler Pappas Weihmuller Katz Craig LLP, and Robert E. Vaughn, Jr., of Law Office of Glenn G. Gomer, Tampa, for Appellant. Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, and Michael S. Rywant, and Kerry C. McGuinn, Jr., of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
 
(EVANDER, J.) In Fridman v. Safeco Insurance Co. of Illinois, 185 So. 3d 1214, 1230 (Fla. 2016), the Florida Supreme Court determined that “an insured is entitled to a jury determination of liability and the full extent of his or her damages, which may be in excess of the policy limits, in the underlying [uninsured/underinsured motorist] case, prior to litigating a first-party bad faith cause of action.” In doing so, the court quashed our prior opinion1 and remanded for this court to consider two issues raised by Safeco that were not previously addressed: (1) whether the trial court erred in denying Safeco's motion for mistrial and a new trial based on allegedly improper arguments made by Fridman's trial counsel; and (2) whether the trial court erred in denying Safeco's motion for remittitur. 185 So. 3d at 1230 n.7. We find no merit to Safeco's first argument, but agree with Safeco that the trial court abused its discretion in denying Safeco's motion for remittitur.
 
In January 2007, Adrian Fridman suffered injuries as a result of an automobile collision with an uninsured motorist. At the time of the incident, Fridman was forty-one years old and unemployed. Prior to the incident, he had been an electronics salesman for several years, earning $800 to $1000 per week. Between 2004 and 2006, Fridman had also operated a retail marble and tile store. At trial, he could not recall the exact earnings from the business, explaining: “[I]t was a growing business. I don't remember making a pay check even.”
 
Shortly after the January 2007 collision, Fridman found a new location to open a wholesale marble and tile business. The business stayed opened for approximately twenty days, during which time Fridman lost money. He testified that he closed the business because he couldn't lift the marble as a result of the injuries he suffered in the automobile collision. Fridman then went to work in an electronics store earning a commission of $400 to $600 per week, and later at The Photoshop earning $500 to $600 per week. Subsequently, Fridman obtained employment at Cash for Gold, earning approximately $1200 per week. In May 2010, Fridman had surgery for injuries related to the automobile collision and was unable to work for approximately two weeks. Fridman then returned to his job at Cash for Gold where he was employed at the time of trial in December 2011.
 
At trial, Fridman presented expert testimony that he would likely need fusion spine surgery, causing him to be unable to work for three to four months immediately thereafter. In further support of his lost future earning capacity claim, Fridman testified that he believed “in a good year,” he could have made $100,000 to $200,000 in the wholesale marble and tile business. The basis for that belief was: “[Y]ou're buying tiles for 25 cents per square foot and you're selling it for $2.00 per square foot.” No other evidence was presented to support Fridman's claim that he could have made $100,000 to $200,000 per year in the wholesale marble and tile business.
 
The jury returned a verdict in favor of Fridman in the amount of $1,000,000. That amount included $45,000 for lost past earnings and $225,000 for lost future earning capacity. Thereafter, Safeco unsuccessfully moved for a remittitur arguing, inter alia, that the jury's awards for past lost earnings and lost future earning capacity were not supported by the evidence.
 
Section 768.74(1), Florida Statutes (2011), provides that in any action for damages, whether in tort or in contract, where a verdict is rendered that awards damages to a plaintiff, the court has a responsibility, upon proper motion, “to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.”2 Where the amount awarded is excessive, a trial court is required to order a remittitur. § 768.74(2), Fla. Stat. (2011). If the party adversely affected by the remittitur does not agree, a new trial shall be ordered on the issue of damages only. § 768.74(4), Fla. Stat. (2011).
 
Where, as in the instant case, a plaintiff is earning more after the injury than he did prior to the injury, he is not precluded from recovering damages for loss of income or loss of future earning capacity, but it is more difficult for him to show that he has suffered an economic loss. Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007). Safeco properly concedes that the evidence would support an award of past lost income for the time Fridman was out of work following his first surgery, as well as an award of lost future earning capacity for the time Fridman would be expected to miss work after the anticipated second surgery. However, Safeco argues that the jury's awards for lost past earnings and lost future earning capacity were primarily based on Fridman's speculation about his potential earnings if he had been able to continue to operate his new wholesale marble and tile business. We agree.
 
Although Fridman presented evidence that he was unable to continue with his wholesale marble and tile business because of the injuries he suffered in the automobile collision, he failed to present any evidence of the amount of earnings that could reasonably be expected from such a business, other than his unsubstantiated speculation that he could make a $100,000 to $200,000 in “a good year.” This type of speculative testimony is insufficient to support an award of damages. See, e.g., Gonzalez v. Price, 783 So. 2d 301 (Fla. 5th DCA 2001) (finding the speculative testimony of professional singer and dancer injured in automobile accident that she could earn at least twice as much money on Broadway as she was making at her job at the time of trial was insufficient to support damages award for lost earning ability); Ludwig v. Ladner, 637 So. 2d 308 (Fla. 2d DCA 1994) (finding evidence that plaintiff opened silk screen print shop two weeks before accident and earned $900 but had to close business did not support jury's award of $225,000 in past lost earnings; plaintiff testified that he had been self-employed for many years, but provided no documentary proof of past earnings, plaintiff had estimated that print shop would have generated annual income in the “high six figures” if accident had not intervened but provided no business plan or reasonable explanation for estimate).
In sum, Fridman presented sufficient evidence that his injuries were caused by the automobile collision, but presented insufficient evidence to support an award of $45,000 for lost past earnings and $225,000 for lost future earning capacity. Accordingly, we conclude that the trial court abused its discretion in denying Safeco's motion for remittitur.
 
AFFIRMED, in part; REVERSED, in part; and REMANDED. (SAWAYA and PALMER, JJ., concur.)
__________________
 
1Safeco Ins. Co. of Ill. v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013).
 
2Section 768.74(5), Florida Statutes (2011), provides:
 
(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
 
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
 
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
 
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
 
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
 
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Trial court abused discretion in denying insurer's motion for remittitur of damages for lost past earnings and lost future earning capacity where awards were primarily based on insured's speculative testimony about his potential earnings if he had been able to continue to operate his new business

41 Fla. L. Weekly D1870a
op of Form
Insurance -- Uninsured motorist -- Damages -- Trial court abused discretion in denying insurer's motion for remittitur of damages for lost past earnings and lost future earning capacity where awards were primarily based on insured's speculative testimony about his potential earnings if he had been able to continue to operate his new business
 
SAFECO INSURANCE COMPANY OF ILLINOIS, Appellant, v. ADRIAN FRIDMAN, Appellee. 5th District. Case No. 5D12-428. Opinion filed August 12, 2016. Appeal from the Circuit Court for Orange County, Stan Strickland, Judge. Counsel: Anthony J. Russo, of Butler Pappas Weihmuller Katz Craig LLP, and Robert E. Vaughn, Jr., of Law Office of Glenn G. Gomer, Tampa, for Appellant. Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, and Michael S. Rywant, and Kerry C. McGuinn, Jr., of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
 
(EVANDER, J.) In Fridman v. Safeco Insurance Co. of Illinois, 185 So. 3d 1214, 1230 (Fla. 2016), the Florida Supreme Court determined that “an insured is entitled to a jury determination of liability and the full extent of his or her damages, which may be in excess of the policy limits, in the underlying [uninsured/underinsured motorist] case, prior to litigating a first-party bad faith cause of action.” In doing so, the court quashed our prior opinion1 and remanded for this court to consider two issues raised by Safeco that were not previously addressed: (1) whether the trial court erred in denying Safeco's motion for mistrial and a new trial based on allegedly improper arguments made by Fridman's trial counsel; and (2) whether the trial court erred in denying Safeco's motion for remittitur. 185 So. 3d at 1230 n.7. We find no merit to Safeco's first argument, but agree with Safeco that the trial court abused its discretion in denying Safeco's motion for remittitur.
 
In January 2007, Adrian Fridman suffered injuries as a result of an automobile collision with an uninsured motorist. At the time of the incident, Fridman was forty-one years old and unemployed. Prior to the incident, he had been an electronics salesman for several years, earning $800 to $1000 per week. Between 2004 and 2006, Fridman had also operated a retail marble and tile store. At trial, he could not recall the exact earnings from the business, explaining: “[I]t was a growing business. I don't remember making a pay check even.”
 
Shortly after the January 2007 collision, Fridman found a new location to open a wholesale marble and tile business. The business stayed opened for approximately twenty days, during which time Fridman lost money. He testified that he closed the business because he couldn't lift the marble as a result of the injuries he suffered in the automobile collision. Fridman then went to work in an electronics store earning a commission of $400 to $600 per week, and later at The Photoshop earning $500 to $600 per week. Subsequently, Fridman obtained employment at Cash for Gold, earning approximately $1200 per week. In May 2010, Fridman had surgery for injuries related to the automobile collision and was unable to work for approximately two weeks. Fridman then returned to his job at Cash for Gold where he was employed at the time of trial in December 2011.
 
At trial, Fridman presented expert testimony that he would likely need fusion spine surgery, causing him to be unable to work for three to four months immediately thereafter. In further support of his lost future earning capacity claim, Fridman testified that he believed “in a good year,” he could have made $100,000 to $200,000 in the wholesale marble and tile business. The basis for that belief was: “[Y]ou're buying tiles for 25 cents per square foot and you're selling it for $2.00 per square foot.” No other evidence was presented to support Fridman's claim that he could have made $100,000 to $200,000 per year in the wholesale marble and tile business.
 
The jury returned a verdict in favor of Fridman in the amount of $1,000,000. That amount included $45,000 for lost past earnings and $225,000 for lost future earning capacity. Thereafter, Safeco unsuccessfully moved for a remittitur arguing, inter alia, that the jury's awards for past lost earnings and lost future earning capacity were not supported by the evidence.
 
Section 768.74(1), Florida Statutes (2011), provides that in any action for damages, whether in tort or in contract, where a verdict is rendered that awards damages to a plaintiff, the court has a responsibility, upon proper motion, “to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.”2 Where the amount awarded is excessive, a trial court is required to order a remittitur. § 768.74(2), Fla. Stat. (2011). If the party adversely affected by the remittitur does not agree, a new trial shall be ordered on the issue of damages only. § 768.74(4), Fla. Stat. (2011).
 
Where, as in the instant case, a plaintiff is earning more after the injury than he did prior to the injury, he is not precluded from recovering damages for loss of income or loss of future earning capacity, but it is more difficult for him to show that he has suffered an economic loss. Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007). Safeco properly concedes that the evidence would support an award of past lost income for the time Fridman was out of work following his first surgery, as well as an award of lost future earning capacity for the time Fridman would be expected to miss work after the anticipated second surgery. However, Safeco argues that the jury's awards for lost past earnings and lost future earning capacity were primarily based on Fridman's speculation about his potential earnings if he had been able to continue to operate his new wholesale marble and tile business. We agree.
 
Although Fridman presented evidence that he was unable to continue with his wholesale marble and tile business because of the injuries he suffered in the automobile collision, he failed to present any evidence of the amount of earnings that could reasonably be expected from such a business, other than his unsubstantiated speculation that he could make a $100,000 to $200,000 in “a good year.” This type of speculative testimony is insufficient to support an award of damages. See, e.g., Gonzalez v. Price, 783 So. 2d 301 (Fla. 5th DCA 2001) (finding the speculative testimony of professional singer and dancer injured in automobile accident that she could earn at least twice as much money on Broadway as she was making at her job at the time of trial was insufficient to support damages award for lost earning ability); Ludwig v. Ladner, 637 So. 2d 308 (Fla. 2d DCA 1994) (finding evidence that plaintiff opened silk screen print shop two weeks before accident and earned $900 but had to close business did not support jury's award of $225,000 in past lost earnings; plaintiff testified that he had been self-employed for many years, but provided no documentary proof of past earnings, plaintiff had estimated that print shop would have generated annual income in the “high six figures” if accident had not intervened but provided no business plan or reasonable explanation for estimate).
In sum, Fridman presented sufficient evidence that his injuries were caused by the automobile collision, but presented insufficient evidence to support an award of $45,000 for lost past earnings and $225,000 for lost future earning capacity. Accordingly, we conclude that the trial court abused its discretion in denying Safeco's motion for remittitur.
 
AFFIRMED, in part; REVERSED, in part; and REMANDED. (SAWAYA and PALMER, JJ., concur.)
__________________
 
1Safeco Ins. Co. of Ill. v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013).
 
2Section 768.74(5), Florida Statutes (2011), provides:
 
(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
 
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
 
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
 
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
 
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
 
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Appeals -- Insurance -- Appeal from judgment finding entitlement to coverage dismissed for lack of jurisdiction in view of pendency of separate trial on liability and damages against driver, with possible recovery against insurer under policy

41 Fla. L. Weekly D1865a
Top of For
Appeals -- Insurance -- Appeal from judgment finding entitlement to coverage dismissed for lack of jurisdiction in view of pendency of separate trial on liability and damages against driver, with possible recovery against insurer under policy

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JENNIFER ANN HAWKINSON AND BRIAN REYNOLDS PETERS, Appellees. 1st District. Case No. 1D16-2075. Opinion filed August 11, 2016. An appeal from an order of the Circuit Court for Duval County. Tyrie W. Boyer, Judge. Counsel: Rhonda B. Boggess and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant. Benjamin E. Richard, William A. Bald and Raymond P. Reid, Jr., of Pajcic & Pajcic, P.A., Jacksonville, for Appellees.

(PER CURIAM.) Appellant's motion to determine jurisdiction is granted. The Court has determined that it lacks jurisdiction to review the order on appeal. See Workmen's Auto Ins. Co. v. Franz, 24 So. 3d 638, 640 (Fla. 2d DCA 2009) (concluding that order awarding summary judgment to insureds on issue of entitlement to uninsured motorist coverage was not a partial final judgment where related claim for uninsured motorist benefits remained pending). Accordingly, the appeal is dismissed. Appellee's motion to dismiss the appeal is denied as moot. (ROBERTS, C.J. and ROWE, J., CONCUR; MAKAR, J., DISSENTS WITH OPINION.)

Thursday, August 11, 2016

Torts -- Premises liability -- Negligent misrepresentation -- Arbitration -- Motion to dismiss former professional football player's claims against team related to MRSA outbreak at team training facility in favor of arbitration is denied -- Claims premised on negligent maintenance of facility

24 Fla. L. Weekly Supp. 136a
Online Reference: FLWSUPP 2402TYNE

Torts -- Premises liability -- Negligent misrepresentation -- Arbitration -- Motion to dismiss former professional football player's claims against team related to MRSA outbreak at team training facility in favor of arbitration is denied -- Claims premised on negligent maintenance of facility and misrepresentations regarding sanitization of facility have no contractual nexus to NFL player contract or NFL collective bargaining agreement, but instead emanate from common law duties that professionals and owners or lessees of commercial premises owe to invitees, third parties, and public

LAWRENCE TYNES, Plaintiff, v. BUCCANEERS LIMITED PARTNERSHIP, d/b/a Tampa Bay Buccaneers, a Delaware Limited Partnership, and FIRST ALLIED DEVELOPMENT PARTNERS LIMITED PARTNERSHIP, a Nevada Limited Partnership, Defendants. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 15-CA-004177. Division G. March 21, 2016. Mark Wolfe, Judge. Counsel: Stephen F. Rosenthal and Matthew Weinshall, Podhurst Orseck, P.A., Miami,; and Bradford R. Sohn, The Brad Sohn Law Firm, PLLC, Coral Gables, for Plaintiff. Reed L. Russell and Michael S. Hooker, Phelps Dunbar, LLP, Tampa; and Daniel L. Nash, Gregory W. Knopp, and James E. Tysse, Akin Gump Strass Hauer & Feld LLP, Los Angeles, California, for Defendant.

ORDER DENYING DEFENDANT BUCCANEERS

LIMITED PARTNERSHIP'S MOTION TO

DISMISS IN FAVOR OF ARBITRATION
 
THIS MATTER is before the Court on Defendant Buccaneers Limited Partnership's (hereinafter “the Bucs”) Motion to Dismiss in Favor of Arbitration. The Court heard oral argument on March 2, 2016. After review of the motion, the response, the record, and being otherwise advised in this matter, the Court must deny the Bucs' motion to dismiss because no contractual nexus exists between Plaintiff's claims and the National Football League (NFL) Player Contract and the NFL's Collective Bargaining Agreement (CBA). 

 Plaintiff, a former professional football player for the Tampa Bay Buccaneers, initiated the instant suit alleging a premises liability claim (Count I) and a negligent misrepresentation claim (Count II) related to an outbreak of methicillin-resistant staphylococcus aureus (“MRSA”) at the Bucs' training facility, One Bucs Place. The Bucs removed the case to federal court based on complete preemption under the Labor Management Relations Act arguing that Plaintiff's claims fall within the CBA. Judge Moody of the United States Middle District Court of Florida, however, disagreed with Defendant concluding that Plaintiff's claims “were not related in any way to the CBA,” but, rather, “related solely to the manner in which Defendant negligently managed the condition of the Facility.” Tynes v. Buccaneers Ltd. P'ship, No. 8:15-CV-1594-T-30AEP, 2015 WL 5680135, at *1 (M.D. Fla. 2015). Accordingly, the case was sent back to this Court, where Defendant still contends that Plaintiff's claims are subject to the mandatory arbitration provisions of the CBA and the NFL Player Contract.

Defendant argues that Plaintiff's claims are arbitrable because they constitute a dispute involving “the interpretation of, application of, or compliance with, any provision of” the CBA. (See CBA, art. 43 § I). Defendant cites to various provisions in the CBA related to “medical care,” “rehabilitative care,” and employee benefits to argue that Plaintiff's claims have a contractual nexus to the CBA.1 Plaintiff, however, argues that his claims have nothing to do with either the medical and rehabilitative care he may have received at the facility or employee benefits. Rather, Plaintiff contends his claims are premised upon the Bucs' negligent maintenance of the facility and its representations regarding the sanitization of the facility to prevent the spread of infection. Finally, Plaintiff argues that Judge Moody's scope-of-arbitration analysis is persuasive because the inquiry under Florida law is substantially similar to the federal court's analysis. 

 To determine whether a tort claim falls within the scope of a broad arbitration provision, the general inquiry in Florida is whether there is a “significant relationship” or “contractual nexus” between the claim and the contract. Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013).
A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties' unique contractual relationship.
Jackson, 108 So. 3d at 593. However, “a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.” Id. 

Here, while recognizing that a valid written agreement to arbitrate exists and the courts generally favor such provisions, the Court finds that Plaintiff's claims have no contractual nexus to the terms of the CBA or NFL Player Contract because they neither “emanate from any inimitable duty created by the parties' contract” nor require reference to, construction of, application of, or interpretation of any provision in the CBA. Indeed, the Court finds Judge Moody's order and other NFL staphylococcus infection cases to be highly persuasive in considering the issues raised in Defendant's motion. See Tynes, 2015 WL 5680135 (finding that Plaintiff's claims “are not related in any way to the CBA, premised on any duty provided for in the CBA, nor require interpretation of the CBA”); see also Bentley v. Cleveland Browns, 958 N.E. 2d 585 (Ohio App. Ct. 2011); Jurevicius v. Cleveland Browns Football Co., LLC, No. 1:09 CV 1803, 2010 WL 8461220 (N.D. Ohio 2010). 

Furthermore, even if Judge Moody's order did not address whether Plaintiff's claims involve a dispute regarding “rehabilitative care,” the Court still finds that no contractual nexus exists between Plaintiff's claims and any contractual provisions regarding either “rehabilitative care” or, for that matter, “medical care” and employee benefits. Again, Plaintiff's claims are not based upon the Bucs' medical staff committing medical malpractice or breaching their duties to provide adequate medical and rehabilitative care, an area that the CBA likely covers. See Tynes, 2015 WL 5680135 at *5. Rather, Plaintiff alleges specifically that the Bucs breached three of its general common law duties: (1) to exercise reasonable care in maintaining the premises, (2) to inspect and warn invitees about the dangerous conditions on the premises, and (3) to provide accurate information regarding the premises' cleanliness. See id at *4-5; see also Amended Complaint at 5-6, 9-10. Indeed, as Judge Moody highlighted,
[T]he CBA is silent with respect to NFL clubs' maintenance of their training facilities. It is also silent with respect to any duty to warn invitees, including players, of dangerous, unsanitary conditions on the premises, or to provide information concerning infection-control policies in place at team training facilities.
Tynes, 2015 WL 5680135 at *5 (emphasis added); cf. BKD Twenty-One Management Company, Inc. v. Delsordo, 127 So. 3d 527, 531-32 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2451c] (holding that the plaintiff's premises liability claims were arbitrable because the broad arbitration clause referred to any claims arising out of the “the Establishment,” i.e., the premises, facility, or place of business). As such, Plaintiff's claims are not within the scope of the CBA and NFL Player Contract, but, rather, they pertain to general common law duties professionals and owners or lessees of commercial premises owe to invitees, third parties, and the public. See Tynes, 2015 WL 5680135 at *4-5.

 Finally, regarding the arbitration grievance Plaintiff filed in 2013 pursuant to the CBA and then voluntarily withdrew in 2015, the Court finds that it may not consider Plaintiff's grievance because the Court's review in a motion to dismiss and compel arbitration is limited to the four corners of the complaint and its attachments. See Jackson, 108 So. 3d at 592-93. Even if the Court considered the grievance, such a filing would not preclude Plaintiff from asserting his right to bring any legal claims that are outside the purview of the mandatory arbitration provisions of the CBA and NFL Player Contract. 

It is therefore ORDERED AND ADJUDGED that Defendant Buccaneers Limited Partnership's Motion to Dismiss in Favor of Arbitration is hereby DENIED.
__________________

1See articles 30, 39, 41, 43, 45, 53, 60, 61 of Collective Bargaining Agreement and paragraph 9 of the NFL Player Contract.
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Torts -- Negligence -- Exculpatory clause in vendor agreement -- Motion to dismiss vicarious liability claim brought by injured vendor against company whose independent contractor dropped crate onto vendor off of company-owned forklift -- Indemnification clause in vendor's contract, which company seeks to use as exculpatory clause, does not meet requirement that exculpatory clause clearly and unequivocally place ordinary and knowledgeable person on notice

24 Fla. L. Weekly Supp. 133a
Online Reference: FLWSUPP 2402IGLE

Torts -- Negligence -- Exculpatory clause in vendor agreement -- Motion to dismiss vicarious liability claim brought by injured vendor against company whose independent contractor dropped crate onto vendor off of company-owned forklift -- Indemnification clause in vendor's contract, which company seeks to use as exculpatory clause, does not meet requirement that exculpatory clause clearly and unequivocally place ordinary and knowledgeable person on notice of what he is contracting away where clause is not labeled as exculpatory, waiver or release and body of clause does not purport to waive, release or discharge any claims by vendor against company -- Further, clause only provides for indemnification against claim for personal injury or workers' compensation benefits brought by employees of vendor, not vendor himself

ROBERTO IGLESIAS, and CARMEN IGLESIAS, his wife, Plaintiffs, v. CRANE WORLDWIDE LOGISTICS LLC, A foreign limited liability company, and JUAN DE DIOS, Defendants. Circuit Court, 11th Judicial Circuit, in and for Miami-Dade County. General Jurisdiction Division. Case No. 15-9998-CA-22. May 5, 2016. Michael A. Hanzman, Judge. Counsel: Keith Chasin, Miami. Charles Watkins, Miami.
ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT RE: INDEMNIFICATION
 
I. Introduction

Defendant Crane Worldwide Logistics, LLC (“Defendant” or “Crane”) moves for Final Summary Judgment, insisting that Plaintiff's claims are barred (albeit indirectly) by the terms of an indemnification clause contained within the “Vendor Agreement” entered into by the parties. Plaintiff Roberto Iglesias (“Plaintiff” or “Mr. Iglesias”) cross-moves, arguing that the “indemnification” provision relied upon by Crane does not “exculpate” it from liability as a matter of law. Because the Court finds that: (a) the indemnification provision is being used as -- but does not meet the legal requirements of -- an “exculpatory” clause; and (b) the provision of the indemnification clause relied upon by Crane does not clearly and unambiguously apply to claims brought by Mr. Iglesias himself, Defendant's motion is DENIED, and Plaintiff's cross-motion is GRANTED.1

 II. Facts 

Mr. Iglesias suffered severe injuries when a cargo crate weighing approximately 1600 pounds fell off a forklift and landed on him. The forklift was owned by Crane and was being operated by Juan de Dios Colinos, its “independent contractor.” Plaintiff alleges that de Dios Colinos attempted to lift the crate with an inappropriate forklift and safety equipment, and that Crane is vicariously liable for his negligence. 

As a condition to being retained by Crane to assist in moving this crate (and other cargo) Mr. Iglesias executed a “Vendor Agreement” which provided:
6. Indemnification: Vendor shall be responsible for and shall indemnify and save harmless CWW, it affiliated entities, and their employees and agents against any and all loss, claim, or damage, including reasonable attorneys' fees and court costs arising out of or resulting from (i) the negligent or intentional acts or omissions of Vendor, its employees, agents or subcontractors (ii) Vendor or any of its employees, agents, or subcontractors failure to comply with applicable federal state or local laws, regulations, or orders. (iii) breach of any obligation of Vendor under this Agreement, and (iv) any claim for personal injury or worker's compensation benefits of Vendor's employees related to the provision of services or products hereunder (regardless of the cause or the negligence of CWW, its employees, agents or subcontractors).
Id. The agreement was prepared by Crane (identified as CWW) and Plaintiff executed it as the “Vendor.” Plaintiff is an individual laborer who has no “employees.”

According to Crane this indemnity provision requires that Mr. Iglesias indemnify and hold it harmless “for negligent or intentional acts or omissions of Vendor” (i.e., Mr. Iglesias), and since Mr. Iglesias' negligence contributed to his injuries he will be required to “reimburse” (i.e., indemnify) Crane for the amount of any judgment he himself might receive, plus attorney's fees and costs. For this reason, Crane maintains that Mr. Iglesias cannot possibly “recover” anything through this case, and it should therefore be disposed of as a matter of law. The Court disagrees.

III. Governing Law 

A “contract for indemnity is an agreement by which the promisor agrees to protect the promisee against loss or damages by reason of liability to a third party.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) [24 Fla. L. Weekly S71a. Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 2015) [40 Fla. L. Weekly S79a] (indemnification agreements allocate the risk of liability for injuries to “an unknown third party”); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973) (“an indemnity contract undertakes to protect the promisee (indemnitee) against loss or damage through a liability. . . to a third person”). “An exculpatory clause, on the other hand, shifts the risk of injury and deprives one of the contracting parties of his or her right to recover damages suffered due to the negligent act of the other contracting party.” Sanislo, supra at 265, citing Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973).

“Although there is a distinction in definition between an exculpatory clause and an indemnity clause in a contract, they both attempt to shift ultimate responsibility for negligent injury, and so are generally construed by the same principles of law.” O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982). Exculpatory clauses, however, “are looked upon with disfavor” and enforceable only “where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.” Sanislo, supra at 261; Gayon v. Bally's Total Fitness Corp., 802 So. 2d 420 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D2847b]. This is so because such clauses “relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Sanislo, supra at 260.

IV. Analysis 

Here, Crane does not face exposure to a “third party” at all. It's “exposure” is to Mr. Iglesias, the other party to its “Vendor Agreement.” Crane is therefore attempting to use the “indemnification clause” not for purposes of seeking “indemnification” against “loss or damage by reason of liability to a third party,” Dade County School Board, supra, -- but rather as an “exculpatory” clause relieving it from liability and depriving “one of the contracting parties [Mr. Iglesias] of his . . . right to recover damages suffered due to the negligent act of the other party [Crane].” Sansilo, supra at 265. And while it may be true, as the Sansilo court noted, that “indemnification agreements can sometimes produce the same result as an exculpatory provision by shifting responsibility for the payment of damages back to the injured party”, Id. at 265, citing O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982), when an “indemnification” clause is being employed to deprive a contracting party of his right to recover damages suffered due to the negligence of the other contracting party, the wording of the agreement must again clearly and unequivocally place an ordinary person on notice of what he is “contracting away.” Sansilo, supra at 261.2 

Applying this well-settled standard, the “clause” at issue here fails miserably. First, paragraph 6 is not even labeled an “exculpatory,” “waiver” or “release” provision, unlike the clauses at issue in the cases Crane relies upon. See, e.g., Shaw v. Premier Health & Fitness Ctr., Inc., 937 So. 2d 1204 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D2390a] (“[t]he waiver provision at issue here stated” that members (plaintiff) released and discharged defendant from liability and that member “understands that this is a waiver and release of liability”); Middleton v. Lomaskin, 266 So. 2d 678 (Fla. 3d DCA 1972) (“waiver of liability” clause expressly released and discharged landlord from any claims including those based upon its own negligent acts).3 Nor does the body of the clause purport to “waive,” “release” or “discharge” any claims Mr. Iglesias himself may have against Crane. To the contrary, claims Mr. Iglesias may himself possess in the event he were to be injured by Crane's neglect are not addressed at all, and this clause therefore does not come close to clearly and unequivocally placing “an ordinary and knowledgeable person” on notice of “what he or she is contracting away.” Sansilo at 261. The bottom line is that while an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, “such clauses are not favored by the courts” and will be enforced only when they clearly and plainly express an intent to release or discharge one contracting party from liability to the other, including liability for damage caused by its own conduct. Sansilo, supra; Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D146a] This clause abjectly fails to do so.4 

 Aside from not even remotely placing Mr. Iglesias on notice of what he was supposedly “contracting away,” the portion of the indemnification clause relied upon by Crane also does not clearly and unequivocally indemnify it against loss resulting from acts of Mr. Iglesias' himself.The “indemnification” clause is triggered under four specific circumstances:
i. The negligent or intentional acts or omissions of Vendor, its employees, agents or subcontractors; or
ii. Vendor or any of its employees, agents, or subcontractors failure to comply with applicable federal, state or local laws, regulations, or orders, or
iii. Breach of any obligation of Vendor under this Agreement, or
iv. Any claim for personal injury or worker's compensation benefits of Vendor's employees related to the provision of services or products hereunder (regardless of the cause or the negligence of CWW, its employees, agents or subcontractors).
See Vendor Agreement, ¶ 6 (emphasis added). Crane relies exclusively upon sub-clause (iv), and claims that it applies here because Mr. Iglesias is an “employee” of the Vendor (i.e., that he is an employee of himself).5 

 Contrary to Crane's flawed reading of sub-clause (iv), the indemnification provision as well as other parts of the “Vendor Agremeent,” clearly and repeatedly draw a distinction between the Vendor [Mr. Iglesias] and “its employees.” For example, sub-clause (i) requires indemnity for any claim or loss resulting from the negligent or intentional acts or omissions of either the “Vendor,” or “its employees.” Sub-clause (ii) also compels indemnification if the “Vendor or any of its employees” fails to comply with applicable federal, state or local laws.6 In contrast, sub-clause (iv) only mandates indemnity against a claim for personal injury or worker's compensation benefits brought by “Vendor's employees.” Thus, a layperson of ordinary intelligence could easily -- and reasonably -- conclude that sub-clause (iv) -- unlike sub-clauses (i) and (ii) -- is implicated only if a third party “employee” asserts a claim -- precisely what an indemnity provision is intended to protect against. See Sansilo at 261(a contract for indemnity protects against claims asserted by a third party); State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1845a] (court's duty is to apply terms of agreement as they would be understood by the “man on the street”). That is exactly what sub-clause (iv) plainly states, and it is not the Court's job to re-write it so as to expand its scope. Gulliver Sch., Inc. v. Snay, 137 So. 3d 1045 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D457a] (‘[w]here contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning”). And at the very least the clause is ambiguous on this point and must therefore be construed against Crane.

V. Conclusion 

As its drafter, Crane could easily have placed in the “Vendor Agreement” an “exculpatory” clause that clearly “released” and “discharged” it from any claims by Mr. Iglesias, including those arising out of Crane's own negligence. See Shaw, supra. Mr. Iglesias would have then been put on notice of what he was “contracting away.” Sansilo, supra at p. 261. But for whatever reason Crane chose not to secure an “exculpatory” clause at all -- let alone one that met the requirements of Florida law.

Nor did Crane draft its indemnity clause in a manner that clearly and unequivocally expressed an intent that it be indemnified against claims brought by Mr. Iglesias himself. It instead chose -- for whatever reason -- to draft the indemnity sub-clause relied upon here (i.e., sub-clause (iv)) so as to cover only claims asserted by a Vendor's “employees” -- not the Vendor, even though it is indemnified against claims by either in other sections of the same indemnification provision.

Had Crane wanted to insulate itself from claims by Mr. Iglesias it should have secured a plain and clear exculpatory agreement explicitly “releasing,” “waiving” and “discharging” any liability or -- at the very least -- an indemnification clause making it clear that Mr. Iglesias was required to hold it harmless against even suits brought by himself. Crane did neither, and this Court will not “re-write” its voluntary contract under the guise of judicial interpretation. It will apply the indemnification clause as plainly written. And as plainly written it does not provide any protection against the claims Mr. Iglesias asserts here.

Like most “hail Mary's,” Crane's last second pass falls incomplete. Its Motion for Summary Judgment is DENIED. And because the “indemnification” clause -- as drafted by Crane -- has no application to the claims asserted by Mr. Iglesias, Plaintiff's Cross-Motion for Summary Judgment is GRANTED. __________________

1Crane's indemnity claims are set forth in Counts I and II of its Counterclaim which it sought leave to file on April 11, 2016. Though the case was set for trial during the two week period commencing April 26, 2016, the Court granted Crane leave to file this “dispositive” claim it apparently “overlooked” during the first year this case was pending.

2Though in theory an indemnification agreement may be used to shift responsibility back to the injured party -- thus providing the same result as an exculpatory clause -- no case cited by the parties -- or located by the Court -- actually permitted this to occur. In O'Connell the court did say that “an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party (sometimes back to the injured party, thus producing the same result as an exculpatory provision)” -- a statement repeated by our Supreme Court in Sansilo. But Sansilo and other cases routinely point out that indemnification clauses protect against exposure to “third parties,” and no case the Court is aware of has actually applied an “indemnification” clause to shift liability “back to” an injured plaintiff. In any event, the Court need not decide whether using an “indemnification” clause to “exculpate” a defendant from liability to the indemnitor himself is permissible because the clause at issue here does not meet any of the legal requirements of an “exculpatory” provision.

3Middleton has apparently been legislatively overruled. See Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973) (“[i]t is interesting to note that with the enactment of the ‘Residential Landlord and Tenant Act' in 1973, the legislature has declared exculpatory clauses to be void and unenforceable, seemingly overruling the decision in Middelton v. Lomaskin, supra. (See Section 83.47, Chapter 73-330, Laws of Florida)”).

4Because the Court finds that the clause here does not meet the disclosure requirements of Florida law, in that it fails to clearly specify what rights Mr. Iglesias was allegedly “contracting away,” it need not address Plaintiff's argument that enforcement of a proper “exculpatory” clause under the circumstances of this case -- involving a dangerous instrumentality -- would contravene public policy. See, e.g., John's Pass Seafood Co. v. Weber, 369 So. 2d 616 (Fla. 2d DCA 1979) (refusing to enforce exculpatory clause so as to release commercial lessor from liability for failure to comply with fire code); Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832 (Fla. 1959) (liability of the owner of a “dangerous agency who permits it to be used by another” may not be extinguished by the “terms of a bailment”).

5The Court initially believed that Crane was also relying upon sub-section (i) of the indemnity clause which -- unlike sub-section (iv) -- is not followed by the modifier making it clear that the indemnity obligation is triggered “regardless of the cause or negligence of CWW, its employees, agents or sub-contractors.” But because CWW has now stipulated that it is relying only on sub-section (iv) -- which is clearly followed by this “modifier” -- the Court need not address whether the “modifier” also applies to the other three sub-clauses. The Court notes, however, that when a statute or contract sets forth alternative clauses disjunctively, and requires that such “alternatives” be treated separately, language following one disjunctive clause is generally considered inapplicable to the subject matter of the preceding alternative clauses. See Fortune Ins. Co. v. Dep't of Ins., 664 So. 2d 312 (Fla. 1st DCA 1995) [20 Fla. L. Weekly D2678d]. Each sub-clause in the indemnification provision here imposes a separate and distinct indemnity obligation under four separate, distinct, and “alternative” (i.e., disjunctive) circumstances. Yet the modifier which provides that Crane will be indemnified against claims or loss caused by its own negligence follows only sub-clause number (iv) and, as a result, may not modify the other three disjunctive and alternate indemnity obligations.

6See also Vendor Agreement, ¶ 12 (repeatedly distinguishing Vendor from its employees).

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