245 So. 3d 779
Fla. Dist. Ct. App.2018Background
- BellSouth contracted with Mastec to perform work enabling access to existing underground utility lines ("Lightspeed Project"). Mastec subcontracted excavation work to Blok Builders (Blok).
- After excavation near a homeowner's driveway, the driveway collapsed; the homeowner sued Blok and later amended to add Mastec and BellSouth for contributing negligence.
- Mastec and BellSouth sought contractual indemnity and defense from Blok based on the Blok–Mastec subcontract; the subcontract required Blok to indemnify Mastec for Mastec’s own negligence and to defend indemnitees.
- The Mastec–BellSouth master contract (incorporated into the subcontract) required Mastec to indemnify BellSouth for losses including those arising from contractor negligence.
- Blok argued Florida Statute § 725.06 (which voids indemnities covering an indemnitee’s own negligence in certain construction contracts unless a monetary cap exists) rendered the indemnity unenforceable; the trial court granted summary judgment for Mastec and BellSouth and awarded attorney’s fees.
- On appeal, the Fourth District affirmed Blok’s duty to indemnify and defend Mastec, held § 725.06 does not apply to these utility/underground-line contracts, but reversed as to BellSouth because Blok’s subcontract did not directly obligate Blok to indemnify or defend BellSouth.
Issues
| Issue | Blok's Argument | Mastec/BellSouth's Argument | Held |
|---|---|---|---|
| Whether § 725.06 applies to the subcontract excavation work, invalidating indemnity for indemnitee’s own negligence absent a monetary cap | § 725.06 applies to excavation and related work; subcontract contains no monetary limitation, so indemnity is unenforceable | § 725.06 does not apply because the project involved utility lines, not construction/alteration of a building/structure/appurtenance | § 725.06 does not apply; statute’s plain text limits coverage to work associated with buildings/structures/appurtenances, not this utility project; indemnity enforceable against Mastec |
| Whether Blok must indemnify and defend BellSouth under the subcontract/incorporated master contract | Incorporation or project scope makes Blok liable to indemnify BellSouth as an indemnitee | Subcontract only obligates Blok to indemnify Mastec and its agents; master contract requires Mastec (not subcontractors) to indemnify BellSouth | Reversed as to BellSouth: subcontract does not expressly obligate Blok to indemnify or defend BellSouth; court may not rewrite the contract |
| Whether attorney’s fees awarded to both Mastec and BellSouth should stand | Fees should be denied or apportioned because Blok not liable to BellSouth | Fees proper for Mastec; any fees solely for BellSouth representation should be excluded | Affirmed as to Mastec; reversed as to BellSouth. On remand trial court should exclude fees attributable solely to BellSouth’s separate representation if Blok identifies them |
Key Cases Cited
- Holly v. Auld, 450 So.2d 217 (Fla. 1984) (plain statutory language controls and courts cannot extend or modify unambiguous statutes)
- Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 721 So.2d 1254 (Fla. 5th DCA 1998) (applied § 725.06 to concrete tunnel construction viewed as a “structure”)
- Griswold Ready Mix Concrete, Inc. v. Reddick, 134 So.3d 985 (Fla. 1st DCA 2012) (applied § 725.06 where equipment was used in laying a building foundation)
- Church & Tower of Fla., Inc. v. BellSouth Telecomm., Inc., 936 So.2d 40 (Fla. 3d DCA 2006) (upheld similar indemnity in a utilities contract involving pole installation)
- BMW of North America, Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985) (when contract language is clear and unambiguous courts must enforce its plain meaning)
- Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla. 1980) (definition and limits of appurtenances in property context)