BLOK BUILDERS, LLC d/b/a IKON BUILDERS v. PEDRO KATRYNIOK, MASTEC NORTH AMERICA, INC , 245 So. 3d 779 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BLOK BUILDERS, LLC d/b/a IKON BUILDERS, a Florida limited
liability company,
Appella
nt, v.
PEDRO KATRYNIOK, MASTEC NORTH AMERICA, INC., a Florida
corporation, and BELLSOUTH TELECOMMUNICATIONS, LLC,
d/b/a AT&T FLORIDA,
Appellees.
No. 4D16-1811
[April 25, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale Ross, Judge; L.T. Case No. CACE10-43490 (08).
Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami,
for appellant.
Kimberly Kanoff Berman of McIntosh Sawran & Cartaya, P.A., Fort
Lauderdale, and Michael J. Lynott and Crystal L. Arocha of McIntosh
Sawran & Cartaya, P.A., Miami, for appellees MasTec North America, Inc.
and BellSouth Telecommunications, LLC.
ON MOTION FOR CLARIFICATION, REHEARING
AND/OR REHEARING EN BANC
WARNER, J.
We deny Appellant’s Motion for Clarification, Rehearing and/or
Rehearing En Banc, withdraw the previous opinion and substitute the
following opinion in its place.
Blok Builders, LLC, appeals a final judgment determining that Blok
owes Mastec North America, Inc., and BellSouth Telecommunications,
LLC, contractual indemnity and a defense in a personal injury action, as
well as awarding attorney’s fees. Blok contends that its subcontract with
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Mastec, which required Blok to indemnify Mastec for its own negligence,
did not comply with section 725.06, Florida Statutes (2008), and, thus, its
contractual indemnification provisions were unenforceable. The statute,
however, does not apply to the contract in this case; therefore, the trial
court correctly determined that Blok owed Mastec a duty to indemnify and
defend. The trial court also found that Blok must indemnify BellSouth,
but neither the contract between Blok and Mastec nor the contract
between Mastec and BellSouth requires Blok to indemnify BellSouth. We
therefore reverse the trial court’s final judgment as to BellSouth.
BellSouth sought to improve its telecommunications services by
accessing and altering its network in a project called “Lightspeed Project.”
As part of the project, it contracted with Mastec to perform all work
necessary to provide access to the underground lines located in
neighborhood easements. In turn, Mastec then subcontracted with Blok
to perform the excavation work necessary for BellSouth to access its
previously existing underground utility lines.
After Blok performed excavation near the driveway in one of the
neighborhoods covered by the project, a homeowner was walking down
his driveway when it suddenly collapsed, causing him to fall and sustain
permanent serious injuries. The homeowner sued Blok for damages due
to his injuries and then amended his complaint to add Mastec and
BellSouth for their own negligence in contributing to the dangerous
condition.
Mastec and BellSouth crossclaimed against Blok, alleging that Blok
had agreed to contractually indemnify them through the subcontract
between Blok and Mastec. The contract between Blok and Mastec
contained a provision requiring Blok to indemnify Mastec for Mastec’s own
negligence:
16. Indemnification. a) Subcontractor [Blok] agrees to
indemnify and hold harmless Contractor [Mastec] and its
directors, officers, employees and agents (collectively the
“Indemnitees”) and each of them from and against any loss,
costs, damages, claims, expenses (including attorneys’ fees) or
liabilities, causes of action, lawsuits, penalties, or demands
(collectively referred to as “Liabilities”) by reason of any injury
to or death of any person or damage to or destruction or loss
of any property arising out of, resulting from, or in connection
with (i) the performance or nonperformance of the Work
contemplated by this Agreement which is or is alleged to be
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directly or indirectly caused, in whole or in part, by any act,
omission, default, negligence (whether active or passive) of
Subcontractor or its employees, agents or subcontractors,
regardless of whether it is, or is alleged to be, caused in
whole or part (whether joint, concurrent, or contributing)
by any act, omission, default or negligence (whether
active or passive) of the indemnitees, or any of them . . .
Said indemnity shall include but not be limited to injury or
damage which is or is alleged to be caused in whole or in part
by any act, omission, default or negligence of Subcontractor
or its employees, agents or subcontractors. . . .
c) Where not specifically prohibited by law, Subcontractor
further specifically agrees to indemnify and hold harmless
the Indemnitees from all Liabilities, by reason of any injury,
death, or damage to any person or property whatsoever,
caused by, arising from, incident to, or connected with
the performance or nonperformance of the work
contemplated by this Agreement which is, or is alleged to
be, caused in part (whether joint, concurrent, or
contributing) or in whole by any act, omission, default, or
negligence (whether active or passive) of the Indemnitees.
(emphasis added).
The contract further required Blok to defend any claim arising out of
the performance of the contract and brought against the Indemnitees, as
well as to pay any costs and attorney’s fees incurred by the Indemnitees
in defending any action or in enforcing the indemnification agreement.
The agreement between Blok and Mastec incorporated the terms of the
contract between Mastec and BellSouth. That agreement contained a
similar indemnification provision requiring Mastec to indemnify BellSouth:
Article 9. Indemnity
The Contractor [Mastec] shall indemnify and hold
harmless the Company [BellSouth] and its directors,
officers, employees and agents (collectively the
“Indemnitees”) and each of them from and against any loss,
costs, damages, claims, expenses (including attorneys’
fees) or liabilities (collectively referred to as “Liabilities”) by
reason of any injury to or death of any person or damage to or
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destruction or loss of any property arising out of, resulting
from, or in connection with (i) the performance or
nonperformance of the work contemplated by this Contract
which is or is alleged to be directly or indirectly caused, in
whole or in part, by any act, omission, default, negligence
(whether active or passive) of Contractor or its employees,
agents or subcontractors, regardless of whether it is, or is
alleged to be, caused in whole or part (whether joint,
concurrent or contributing) by any act, omission, default or
negligence (whether active or passive) of the Indemnitees, or
any of them . . . .
(emphasis added).
Blok contended that the indemnification provisions were invalid
because the contract did not comply with section 725.06, Florida Statutes
(2008). The statute applies to certain construction contracts which
obligate the indemnitor to indemnify the indemnitee for the indemnitee’s
own negligence. Such a contract is unenforceable unless it contains a
monetary limitation on the extent of such liability. Blok contended that
because there was no such limitation in the Blok/Mastec contract, the
indemnification provision was void and unenforceable. Mastec and
BellSouth argued that section 725.06 did not apply to this contract, and
in any case, a monetary limitation was contained in the BellSouth/Mastec
contract which, through an incorporation clause, applied to the
Blok/Mastec contract.
Both sides moved for summary judgment. Ultimately, the trial court
entered summary judgment in favor of Mastec and BellSouth, concluding
that the contracts required Blok to indemnify and defend both Mastec and
BellSouth in the underlying personal injury lawsuit. It also entered an
award of attorney’s fees to both Mastec and BellSouth. Blok appeals this
final judgment.
We review de novo a summary judgment. Overseas Inv. Group v. Wall
St. Electronica, Inc., 181 So. 3d 1288, 1291 (Fla. 4th DCA 2016) (citing
Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000)). De novo review applies to the interpretation of a contract. See
Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc.,
133 So. 3d 1108, 1110 (Fla. 3d DCA 2014). It also applies to the
interpretation of a statute. See Toler v. Bank of America, Nat’l Ass’n, 78
So. 3d 699, 701-02 (Fla. 4th DCA 2012).
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Blok argues that section 725.06, Florida Statutes, applies to its
contract, and because the contract contains no monetary limitation on its
obligation to indemnify Mastec for Mastec’s own negligence, the
indemnification provision is unenforceable. Based upon the plain wording
of the statute, however, we conclude that section 725.06 does not apply to
this contract.
Section 725.06(1) covers contracts for construction as follows:
Any portion of any agreement or contract for or in connection
with, or any guarantee of or in connection with, any
construction, alteration, repair, or demolition of a
building, structure, appurtenance, or appliance, including
moving and excavating associated therewith . . . shall be
void and unenforceable unless the contract contains a
monetary limitation on the extent of the indemnification that
bears a reasonable commercial relationship to the contract
and is part of the project specifications or bid documents, if
any.
(emphasis added).
Where a statute is clear and unambiguous, the words of the statute
must be given their plain and obvious meaning. Holly v. Auld, 450 So. 2d
217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla.
1141, 1144, 137 So. 157, 159 (1931)). Further, a court is “without power
to construe an unambiguous statute in a way which would extend, modify,
or limit, its express terms or its reasonable and obvious implications. To
do so would be an abrogation of legislative power.” Id. (emphasis removed)
(quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d
777, 778 (Fla. 1st DCA 1968)).
Blok contends that because it entered into a contract for excavation,
the statute governs. Excavation, however, must be associated with the
“construction, alteration, repair, or demolition of a building, structure,
appurtenance, or appliance . . . .” § 725.06(1), Fla. Stat. (2008) (emphasis
added). The project in this case did not involve such construction. The
master contract between BellSouth and Mastec involved the laying and
maintenance of utility lines. The contract does not involve a building,
structure, appurtenance, 1 or appliance. Therefore, given its plain and
1 “Appurtenances are things belonging to another thing as principal and which
pass as incident to the principal thing.” Chackal v. Staples, 991 So. 2d 949, 955
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ordinary meaning, the statute does not govern the contractual provisions.
Blok cites several cases in which section 725.06 has been applied, but
all involve either the construction of a building or structure. It relies most
heavily on Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 721 So. 2d
1254 (Fla. 5th DCA 1998), in which the statute was applied to the
construction of concrete tunnels. But it is clear from the opinion that the
court considered the concrete tunnel to be a “structure,” and thus, the
statute was applicable. Similarly, in Griswold Ready Mix Concrete, Inc. v.
Reddick, 134 So. 3d 985, 986 (Fla. 1st DCA 2012), the statute was applied
to a contract for a lease of a concrete pump truck, as the truck was being
used in the laying of a foundation of a building, which type of contract is
covered by the statute.
Mastec suggests that section 725.06 does not apply to utility contracts,
which are quasi-governmental. In particular, it cites to Church & Tower of
Fla., Inc. v. BellSouth Telecomm., Inc., 936 So. 2d 40 (Fla. 3d DCA 2006),
which involved a contract with a similar indemnity provision as in this
case. The contract in question provided for the installation of utility poles,
and the court enforced the indemnity provision but never addressed
section 725.06. Mastec and BellSouth suggest that this is because it is a
utility contract, and section 725.06 does not apply to utility contracts.
Blok, however, has provided us the briefs of that case, and it appears from
the argument that neither party argued the application of section 725.06.
Thus, we do not decide this case on the basis that section 725.06 can
never apply to a contract with a utility.
As to BellSouth, we conclude that the court erred in determining that
Blok owed a duty of indemnity and a duty to defend BellSouth. Under the
Blok/Mastec contract, Blok agreed to indemnify Mastec and its directors,
officers, and agents. Nowhere does it require Blok to indemnify BellSouth.
And, although the subcontract incorporated the provisions of the
BellSouth/Mastec contract, that contractual indemnification provision
required that Mastec, not its subcontractors, indemnify BellSouth. Where
a contract is clear and unambiguous, “courts cannot indulge in
construction or interpretation of its plain meaning.” BMW of North
America, Inc. v. Krathen, 471 So. 2d 585, 587 (Fla. 4th DCA 1985) (quoting
(Fla. 4th DCA 2008) (quoting Trask v. Moore, 24 Cal. 2d 365, 368, 149 P.2d 854,
856 (1944)). While Blok suggests that these lines are appurtenances to the
adjacent homes, they are not, as they would not “pass as incident to the principal
thing.” The lines are located in an easement and owned by BellSouth. They are
not an appurtenance to the property of the homeowner.
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Hurt v. Leatherby Ins. Co., 380 So. 2d 432 (Fla. 1980)). And, when a
contract is silent on a matter, the court cannot impose contractual rights
and duties under the guise of construction. Id. Thus, the court erred in
declaring that Blok had a duty to indemnify and to defend BellSouth.
Because Blok had no contractual duty to indemnify or defend Bell
South, we also reverse the award of attorney’s fees and costs as to
BellSouth. In the trial court, however, one law firm represented both
Mastec and BellSouth, and the trial court entered a single award of fees
and costs for the joint representation. The transcript of the fee hearing
does not reveal any attempt to determine whether there were fees sought
solely for work done in representation of BellSouth and not joint
representation. Although Blok did not object to the single award, the court
had already ruled that BellSouth was entitled to indemnity and obviated
the need for a separate finding with respect to BellSouth. On remand, if
Blok can identify fees due solely to the representation of BellSouth, rather
than Mastec, in the evidence presented at the fee hearing, the trial court
should reduce the attorney’s fees judgment and award to Mastec only
those fees attributable to representation of Mastec or joint representation.2
Otherwise, we find no merit in Blok’s challenge to the award of attorney’s
fees to Mastec.
For the foregoing reasons, we affirm the trial court’s final judgment
determining Blok’s duty to indemnify and defend Mastec. We reverse the
final judgment as to BellSouth in all respects and remand for the exclusion
from the award of attorney’s fees to Mastec those fees solely directed to the
representation of BellSouth. 3
LEVINE, J., and BUCHANAN, LAURIE E., Associate Judge, concur.
2 The vast majority of the fees and costs were for representation in defending the
underlying personal injury lawsuit or pursuing a joint indemnity claim against
Blok and thus are proper. There are a few entries for time spent for answering
the amended complaint when BellSouth became a defendant in the litigation and
preparing its own crossclaim against Blok. There might be some entries
regarding individual discussions with BellSouth lawyers. It is up to Blok to show
the trial court the individual hourly fee entries or cost items which it claims
should be excluded. The trial court can thereafter determine whether those
specific hours and costs were included in its original award and should be
excluded as due solely to representation of BellSouth.
3 Because the amount appears to be so small compared to the total award, the
parties may be able to agree to any reduction and submit an agreed judgment on
fees to the trial court.
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