Opinion
No. 75-1712.
December 7, 1976.
Appeal from the Circuit Court, Dade County, John Ferguson, J.
Knight, Peters, Hoeveler, Pickle, Niemoeller Flynn, Jeanne Heyward, Miami, for appellant.
Magill Sevier and Victor H. Womack, Miami, for appellee.
Before BARKDULL, C.J., and PEARSON and HAVERFIELD, JJ.
This appeal has been perfected by Kressley-Davis, Inc. to review the final judgment finding that appellee Winn-Dixie Stores is entitled to contractual indemnification from Kressley-Davis.
Winn-Dixie Stores, Inc. contracted with appellant Kressley-Davis, Inc. to remodel one of its stores. Subsequently the parties entered into a "General Public Liability Agreement" which contained the following provision:
"In consideration of your permitting us or our servants, agents, employees and representatives from time to time to enter upon or to place or maintain equipment upon premises owned or controlled by you for the purpose of servicing our account, we agree to indemnify and hold you harmless from any claim or loss arising in any manner out of the presence or activity of the undersigned or any of our servants, agents, employees and representatives or out of the presence of such equipment, when such persons or equipment are on your premises for the purpose of performing services, delivering or displaying goods or otherwise transacting business or dealing with you in the interest or on behalf of the undersigned and not withstanding such accident or damage may have been caused in whole or part or negligence of you or any of your servants, agents or employees." [Emphasis Supplied]
While the store was being remodeled, plaintiff Adeline Braik slipped and fell on a piece of peg board in the store's parking lot. She filed an action against Winn-Dixie and Kressley-Davis to recover damages for the injuries sustained from her fall and charged both of them with having negligently caused and allowed building materials and other debris to accumulate and remain along the sidewalk and other areas around the store. Winn-Dixie filed a cross-claim for indemnity against Kressley-Davis based upon the above agreement. The cross-claim was reserved for post trial determination by the court. The jury returned a verdict in favor of Ms. Braik and against Winn-Dixie. Thereafter, the court entered a final judgment for Winn-Dixie on its cross-claim based upon the General Public Indemnity Agreement. Kressley-Davis appeals.
Under the terms of the agreement set out above, it is clear that Kressley-Davis agreed to indemnify Winn-Dixie from any claim or loss arising in any manner out of the activity of Kressley-Davis on Winn-Dixie's premises, even if such claim or loss may have been caused in whole or in part by the negligence of Winn-Dixie or its employees. Thus, the trial judge was eminently correct in finding as a matter of law and fact that Winn-Dixie was entitled to contractual indemnification from Kressley-Davis under the terms of the indemnity agreement. See Maule Industries, Inc. v. Central Rigging Con. Corp., 323 So.2d 631 (Fla.3d DCA 1975).
Affirmed.
At the trial of the issue of negligence between the plaintiff and the defendants, a final judgment based upon a jury verdict was entered in favor of the plaintiffs against Winn-Dixie Stores, Inc., and a final judgment in favor of Kressley-Davis, Inc., against the plaintiffs was also entered. It, therefore, appears that the jury determined that no negligence of Kressley-Davis, Inc., contributed to plaintiff's injury. The evidence fully supports such a holding.
A subsequent holding by the court that the accident arose out of "the presence or activity of the undersigned [Kressley-Davis] or any of our servants, agents, employees and representatives or out of the presence of such equipment, when such persons or equipment are on your premises . . ." is not supported by the evidence in this cause.
I would, therefore, hold that the judgment against Kressley-Davis is not supported by the evidence on this record. Cf. University Plaza Shopping Center v. Stewart, Inc., 272 So.2d 507 (Fla. 1973).