Christopher Marler v. U-Store-It Mini Warehouse Co. ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13890 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 10, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cv-60613-ASG
CHRISTOPHER MARLER,
Plaintiff - Appellant,
versus
U-STORE-IT MINI WAREHOUSE CO.,
a foreign corporation,
USI LIMITED PARTNERSHIP,
a foreign limited partnership,
a.k.a. U-Store-It, L.P.,
f.k.a. Acquiport/Amsdell I Limited Partnership,
U-STORE-IT-TRUST,
a Declaration of Trust,
YSI MANAGEMENT, LLC,
a foreign limited liability company,
ACQUIPORT/AMSDELL I LIMITED PARTNERSHIP,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 10, 2011)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Christopher Marler appeals the summary judgment in favor of U-Store-It
Mini Warehouse Company, USI Limited Partnership, U-Store-It-Trust, YSI
Management, LLC, and the Acquiport/Amsdell I Limited Partnership (collectively
“U-Store-It”). Marler stored three service trucks in warehouse space that his
company, Fleet Service Specialist, Inc., leased from YSI Management and was
owned by U-Store-It. Marler was injured at the leased space while repairing one
of his service trucks, and he complained that U-Store-It had acted negligently by
failing to maintain the asphalt at its facility. The district court ruled that an
exculpatory clause in the lease insulated U-Store-It from liability. We affirm.
Marler signed the lease and, in paragraph 19, “acknowledge[d] that neither
[U-Store-It] nor [YSI Management] [had] made any representations or warranties,
either express or implied, as to the safety of the property, the Space [or]
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otherwise.” In the same paragraph, Marler agreed that neither U-Store-It or YSI
Management would be liable for “personal injury or loss or damage to any
Personal Property” caused by any intentional or negligent act or omission:
Neither [U-Store-It] nor [YSI Management] shall be liable to Occupant
or any other party for personal injury or loss or damage to any Personal
Property arising from any cause whatsoever . . . regardless of whether
such loss or damage is caused by the intentional or negligent acts or
omissions of [U-Store-It-], [YSI Management], [U-Store-It]’s or [YSI
Management]’s agents, Occupant or any other party.
Paragraph 6 of the lease prohibited occupants from “park[ing] any vehicle at the
Property . . . except in areas designated by [U-Store-It] and then only during such
periods necessary for the performance of and while Occupant is exercising its
rights, duties and obligations hereunder,” and paragraph 9 of the lease prohibited
occupants from “perform[ing] any mechanical or restoration work on any vehicle
either in the Space or at the Property.”
While Marler was repairing one of his service trucks at the warehouse, some
asphalt under the truck crumbled, and the truck crushed Marler’s right arm.
Marler filed a complaint in a Florida court and alleged that U-Store-It had acted
negligently by failing to maintain the asphalt in a safe condition or warn Marler
that the asphalt was unsafe. After U-Store-It removed the action to district court,
U-Store-It moved for summary judgment on the grounds that it was relieved of
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liability under the exculpatory clause in paragraph 14 of the lease; Marler had
breached Paragraph 9 of the lease, which prohibited repairing vehicles at the
warehouse; and U-Store-It did not breach a duty owed to Marler. Marler
responded that U-Store-It had violated the Florida Building Code and that
violation nullified the exculpatory clause and U-Store-It had waived its right to
enforce paragraph 9.
The district court granted summary judgment in favor of U-Store-It. The
district court ruled that the language of the exculpatory clause was “sufficient to
indemnify [U-Store-It] against their own negligent acts” and “insulated [it] from
any injuries Marler sustained on” the warehouse property. In response to Marler’s
argument that the clause was not “sufficiently clear and unequivocal to pass
muster under Florida law,” the district court ruled that the clause contained
“precisely the type of language which Florida courts [had] upheld as sufficient” to
“indemnif[y]” a party “against its own negligence.” The district court also ruled
that there was no “genuine issue of material fact as to whether [U-Store-It]
violated the Florida Building Code” because Marler and his expert acknowledged
there were no written guidelines or standards governing the thickness of asphalt
and, alternatively, Marler failed to provide any authority that a violation would
invalidate the exculpatory clause. The district court declined to “consider whether
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Marler [was] owed any duty of care because he violated” paragraph 9, “whether
[U-Store-It] waived [its] right to enforce” the provision, or whether U-Store-It
breached a duty owed to Marler “[b]ecause the exculpatory clause [was] valid”
and “insulate[d] [U-Store-It] from suit for any personal injuries occurring on the
property.”
The contract states in “clear and unequivocal terms” that U-Store-It shall be
indemnified against its own negligence. Etiole Intern., N.V. v. Miami Elevator
Co., Inc., 573 So. 2d 921, 922 (Fla. Dist. Ct. App. 1990). Marler argues that the
phrase “caused by the intentional or negligent acts or omission” modifies only the
preceding clause “loss or damage” and does not apply to “personal injuries,” but
we disagree. “[T]he doctrine of the last antecedent is not an absolute rule,” Penzer
v. Transp. Ins. Co., 29 So. 3d 1000, 1007 (Fla. 2010) (citing United States v.
Hayes, 129 S. Ct. 1079, 1086 (2009), and Fortune Ins. Co. v. Dep’t of Ins., 664 So.
2d 312, 316 (Fla. Dist. Ct. App. 1995)), and “‘is not applicable where a further
extension or inclusion is clearly required by the intent and meaning of the
context’” of the contract, Fortune Ins., 664 So. 2d at 316 (quoting 73 Am. Jur. 2d
Statutes § 138). If a “plain reading of the language,” Penzer, 29 So. 3d at 1007,
reveals that “‘several words are followed by a clause which is applicable as much
to the first and other words as to the last, the natural construction of the language
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demands that the clause be read as applicable to all.’” Fortune Ins., 664 So. 2d at
316 (quoting Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.
Ct. 516, 518 (1920)). The exculpatory clause states that U-Store-It is insulated
from liability for “such loss or damage,” which includes “personal injuries,” that
have been caused by its “negligent acts or omissions.” See Winn Dixie Stores,
Inc. v. D & J Const. Co., 633 So. 2d 65, 65–66 (Fla. Dist. Ct. App. 1994)
(interpreting indemnity agreement that covered “any claim or loss . . .
notwithstanding such accident or damage may have been caused in whole or in
part [by the] negligence of” Winn Dixie insulated it against liability for personal
injury to an employee of D& J Construction). The exculpatory clause absolves U-
Store-It of liability for any negligence that might have caused Marler’s personal
injury.
We AFFIRM the summary judgment in favor of U-Store-It.
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