BRIEF OF PETITIONER ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC02- DCA Case No.: 4D JOHN C. KIMMEL, ) Petitioner/Appellee/) Florida Bar No Third-Party Defendant, ) v. ) ) GULFSTREAM PARK RACING ) ASSOCIATION, INC., ) Respondent/Appellant/ ) Defendant/Intervenor/ ) Third-Party Plaintiff, ) and ) ) GOLD SPUR STABLE, INC., ) a New Jersey corporation,) Respondent/Nominal ) Appellee/Plaintiff, ) and ) ) AGRICULTURAL INSURANCE COMPANY) a foreign corporation, as) subrogee of GOLD SPUR STABLE,) INC., a New Jersey ) corporation, ) Respondent/Nominal ) Appellee/Plaintiff in ) Intervention. ) ) ON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL BRIEF OF PETITIONER ON JURISDICTION JOHN C. KIMMEL (With Appendix) Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Esquire Suite South Andrews Avenue Fort Lauderdale, FL (954) Broward (954) Dade and Joseph M. Loughren, Esquire LOUGHREN & DOYLE, P.A. Ft. Lauderdale, FL

2 TABLE OF CONTENTS Table of Citations... Point on Appeal... ii Pages iii Statement of the Facts and Case Summary of Argument... 2 Argument: THE DECISION IN THE PRESENT CASE CONFLICTS WITH CASES WHICH HOLD THAT AN INDEMNITY AGREEMENT IS NOT VALID TO INDEMNIFY A PARTY FOR ACCIDENTS OF ITS OWN NEGLIGENCE UNLESS IT SPECIFICALLY STATES THAT IT AGREES TO INDEMNIFY THE PARTY FOR ACTS OF HIS OWN NEGLIGENCE; AND IS BASED ON A MISAPPLICATION OF CASES WHICH HOLD THAT A CLAUSE WHICH INDEMNIFIES FOR "JOINT NEGLIGENCE," IS VALID, SINCE THIS CLAUSE PURPORTS TO INDEMNIFY EVEN WHEN THERE IS NO NEGLIGENCE Conclusion Certification of Type Certificate of Service Appendix... A1-5.

3 TABLE OF CITATIONS Pages Cox Cable Corporation v. Gulf Power Company, 591 So. 2d 627 (Fla. 1992)... 2, 3, 7, 8 Leonard L. Farber Company, Inc. v. Jaksch, 335 So. 2d 847 (Fla. 4th DCA 1976)... 2, 4, 8, 9 Marino v. Weiner, 415 So. 2d 149 (Fla. 2, 4th 3, DCA 9, 1982) 10 Mitchell Maintenance Systems, A Division of Lift- A-Loft Corporation v. State, Department of Transportation, 442 So. 2d 276 (Fla. 4th DCA 1983). 2, 3-4, 10 P.P. Partners, Ltd. v. J.J. Gumberg Company, 611 So. 2d 55 (Fla. 1992)... 2, 3, 6 University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973)... 2, 3, 7, 8 -ii-

4 POINT ON APPEAL THE DECISION IN THE PRESENT CASE CONFLICTS WITH CASES WHICH HOLD THAT AN INDEMNITY AGREEMENT IS NOT VALID TO INDEMNIFY A PARTY FOR ACCIDENTS OF ITS OWN NEGLIGENCE UNLESS IT SPECIFICALLY STATES THAT IT AGREES TO INDEMNIFY THE PARTY FOR ACTS OF HIS OWN NEGLIGENCE; AND IS BASED ON A MISAPPLICATION OF CASES WHICH HOLD THAT A CLAUSE WHICH INDEMNIFIES FOR "JOINT NEGLIGENCE," IS VALID, SINCE THIS CLAUSE PURPORTS TO INDEMNIFY EVEN WHEN THERE IS NO NEGLIGENCE. -iii-

5 STATEMENT OF THE FACTS AND CASE The basic facts were that a horse named "Devil's Cup" was racing at Gulfstream Track, when it fractured a bone in its right front leg, and after months of medical treatment the horse was put to sleep. The horse was owned by Gold Spur Stable, and the trainer and veterinarian was Dr. Kimmel. Gold spur, the owner, filed suit against Gulfstream alleging the cause of the fall was that this race was run on a track which was wet and therefore soft, and Gulfstream filed a third-party complaint against the trainer, Dr. Kimmel, in part for contractual indemnity. The trial judge ruled that allegations against Gulfsteam were for active negligence, and the indemnity agreement did not contain a clause which specifically stated that Kimmel agreed to indemnify Gulfstream, for acts of its own negligence. Therefore, the indemnity agreement was not valid, and the trial court entered a Summary Judgment for Kimmel on indemnity. The case was appealed to the Fourth District, which, in effect, added the word "negligence" to the last half of the indemnity clause, and therefore held that it was valid because it would be construed to indemnify for joint negligence, even though it did not expressly and unequivocally say so. Therefore, this decision is in conflict with the cases which hold that, in order for an indemnity agreement to indemnify a party "for acts of its own negligence," it must expressly say this; and also is based on a misapplication of three cases the Fourth District relied on, which hold that when an indemnity clause states that it will indemnify for "joint negligence," it is valid, since this clause -1-

6 did not contain wording that it was indemnifying for "joint negligence." SUMMARY OF ARGUMENT The decision of the Fourth District held that an indemnitee would be contractually indemnified for acts of its own negligence, even though the indemnity agreement did not state the party was to be indemnified for "acts of its own negligence." It relied on other cases of the Fourth District which hold that a certain ambiguous clause will be construed to indemnify for "joint negligence," even though the clause does not say that. Therefore, the decision is in conflict with the Florida cases which hold that an agreement to indemnify for one's own negligence must be clear and unambiguous. J.J. Gumberg; Cox; Cable; Stewart; infra. Further, the Fourth District held that the clause was valid under certain cases from the Fourth District which hold that if an indemnity agreement states that it indemnifies for "joint negligence," it is valid. However, the indemnity clause did not state that it was indemnifying for "joint negligence." In fact the way the clause was worded, the trainer would be required to indemnify for incidents, even if he was not negligent. Therefore, the decision is based on the misapplication of cases. Marino; Mitchell; Jaksch; infra. -2-

7 ARGUMENT THE DECISION IN THE PRESENT CASE CONFLICTS WITH CASES WHICH HOLD THAT AN INDEMNITY AGREEMENT IS NOT VALID TO INDEMNIFY A PARTY FOR ACCIDENTS OF ITS OWN NEGLIGENCE UNLESS IT SPECIFICALLY STATES THAT IT AGREES TO INDEMNIFY THE PARTY FOR ACTS OF HIS OWN NEGLIGENCE; AND IS BASED ON A MISAPPLICATION OF CASES WHICH HOLD THAT A CLAUSE WHICH INDEMNIFIES FOR "JOINT NEGLIGENCE," IS VALID, SINCE THIS CLAUSE PURPORTS TO INDEMNIFY EVEN WHEN THERE IS NO NEGLIGENCE. The clause in the present case does not state that the indemnitee will be indemnified "for acts of its own negligence." The Fourth District held that the clause will be construed to indemnify for "joint negligence," even though the clause does not say that. Therefore, this holidng is in express and direct conflict with cases which hold that a clause to indemnify a party for his own negligence, must be clear and unequivocal, or it is invalid. P.P. Partners, Ltd. v. J.J. Gumberg Company, 611 So. 2d 55 (Fla. 1992); Cox Cable Corporation v. Gulf Power Company, 591 So. 2d 627 (Fla. 1992); University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973). Further, it is based on a misapplication of other cases, since the indemnity agreement does not state that it will indemnify for "joint negligence," and never even uses the word "negligence," but requires the indemnitor to indemnify for all claims arising out of the activities at Gulfstream Park. Marino v. Weiner, 415 So. 2d 149 (Fla. 4th DCA 1982); Mitchell Maintenance Systems, A Division of Lift-A-Loft Corporation v. State, Department of Transportation, 442 So. 2d 276 (Fla. 4th DCA 1983); and Leonard L. Farber Company, Inc. -3-

8 v. Jaksch, 335 So. 2d 847 (Fla. 4th DCA 1976). A. Indemnity Agreement Must be Clear and Unequivocal The indemnity agreement in the present case does not clearly and unambiguously state that the indemnitee will be indemnified for acts of its own negligence. Furthermore, in contrast to the cases relied on, the clause does not even state that it is indemnifying for acts of "joint negligence," but rather if read literally would require indemnity for any incident involving Kimmel's horse, regardless of whether or not Kimmel was negligent. Therefore, this does not meet the "clear and unequivocal" language that is necessary in order to indemnify a party for its own negligence. The indemnity agreement is in the opinion and the exact indemnity language is as follows: Trainer hereby agrees to indemnify, hold harmless and defent [sic] Gulfstream and its officers, directors, agents, representatives, employees, successors and assigns from any claims, losses, liabilities or demands whatsoever, including claims [sic] for medical and hospital bills, resulting from or arising directly or indirectly from the acts or omissions of Trainer and its agents, servants, employees, owners or invitees, in whole or in part, from or ou [sic] of or in connection with Trainer's activities at Gulfstream Park. Therefore, it will be noted that the indemnity agreement does not state that the indemnitee will be indemnified "for acts of its own negligence." Further, it does not state that it indemnifies for joint negligence, contrary to the opinion of the Fourth District. If this Honorable Court will look at the indemnity clause, what it in vague language seeks to do, is require the trainer to indemnify Gulfstream for any incident involving the horse, even if the trainer -4-

9 is not negligent. This is a horse race track involving high speed races, and there are frequently incidents in which neither the trainer nor Gulfstream is negligent. It should be noted that the Fourth District read the last five works of the indemnity clause, "trainer's activities at Gulfstream Park," as if they were deleted, and in their place was inserted "Golfstream's negligence." However, the indemnity clause does not state that the trainer will indemnify Gulfstream for "acts of its own negligence," nor does it state it will indemnify Gulfstream for "joint negligence." Instead it seeks to require that the trainer will indemnify Gulfstream for any incident involving the horse, even if the trainer is not at fault. In other words, it should be borne in mind that accidents happen all the time at race tracks that do not involve the negligence of any human being. Horses "have a mind of their own," and racing is a high speed activity, and accidents happen that are not the fault of any human. However, this clause seeks to require the trainer to indemnify Gulfstream for activities, even if the trainer is not negligent. For instance, the way the clause is written, if another jockey is negligent and collides with Kimmel's horse and Kimmel is not negligent, and the negligent jockey sues Gulfstream, under the clause the trainer would be required to indemnify Gulfstream since it arose out of the trainer's activities at Gulfstream, even though the trainer was not negligent. Another example would be that if the track were wet, and a -5-

10 different horse fell on the wet track and collided with Kimmel's horse, and the other trainer filed suit against Gulfstream, under this ambiguous indemnity agreement Kimmel would be required to indemnify Gulfstream. Quite simply this in no way states that Gulfstream is to be indemnified for acts of its own negligence, or only when Kimmel is negligent, and therefore it is the type of ambiguous lease agreement which has repeatedly been held not valid by the Florida courts. This decision is in express and direct conflict with P.P. Partners, Ltd. v. J.J. Gumberg Company, supra. The facts were that P.P. Partners, Ltd., owned a shopping center and entered into an agreement with Gumberg to manage the property. The agreement had the following indemnity provision: "the owner...agrees... (a) to save [Gumberg] harmless from all damage suits in connection with the management of the herein described property and from liability from injury suffered by any employee or other person whomsoever..." P.P. Partners, Ltd., 55. The trial court upheld the indemnity agreement, and the Third District held that since the provision states Gumberg would indemnify "for all damage suits," and did not state it would indemnify for Gumberg's own negligent acts, that it was not valid: Contracts of indemnification which attempt to indemnify a party against its own negligence are disfavored in Florida, and will be enforced only where an intent to indemnify against the indemnitee's own wrongful act is expressed in clear and unequivocal terms. In University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d at , the Florida Supreme Court concluded that a provision which required indemnification "from and against any and all -6-

11 claims for any personal injury or loss of life in and about the demised premises" was not sufficient to support indemnification from liability resulting from the indemnitee's own negligence. Upon a careful and complete review of the opposing views, we choose to follow the rationale...requiring a specific provision protecting the indemnitee from liability caused by his own negligence. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d at 511 (Emphasis added.). Similarly, in the present case, the indemnity agreement provides that Kimmel will indemnify for all incidents on the track, without any regard to whether there is negligence of Kimmel, and therefore the decision upholding the indemnity agreement is in express and direct conflict with Gumberg. Similarly, the decision is in express and direct conflict with Cox Cable Corp., supra. In Cox, the Court of Appeal upheld an indemnity agreement, with the reasoning that indemnification in cases of joint negligence was less stringent, and the Supreme Court reversed and held that when the agreement purports to indemnify for joint negligence, this must also be clear and unequivocal. Therefore, the present decision is in express and direct conflict with Cox Cable, since the indemnity agreement purports not only to indemnify not only for joint negligence, but even when there is no negligence of Kimmel, and therefore it is in conflict with Cox Cable. Thirdly, the decision in express and direct conflict with the decision of the Florida Supreme Court in University Plaza Shopping Center, Inc. v. Stewart, supra. The facts in University Plaza were that the indemnity clause purported to indemnify for any incidents on -7-

12 the premises, even if there was no negligence. The clause is as follows: Tenant shall indemnify and save harmless the Landlord from and against any and all claims for damages to goods, wares, merchandise and property in and about the demised premises and from and against any and all claims for any personal injury or loss of life in and about the demised premises. University Plaza, The Supreme Court held this clause was invalid, and since it is similar to the present one in that it sought to indemnify even when there was no negligence, there is express and direct conflict with this case. B. Misapplication of Law Additionally, the decision of the Fourth District is based on a misapplication of three cases. In Leonard L. Farber Company, Inc. v. Jaksch, supra, the indemnity agreement provided that the lessee would indemnify for any damage resulting from, or "occasioned wholly or in part by any act or omission of lessee." The exact clause is as follows: Lessee shall indemnify Lessor and save it harmless from suits, actions, damages, liability and expense in connection with loss of life, bodily or personal injury or property damage arising from or out of any occurrence in, upon or at or from the Demise Premises or any part thereof, or occasioned wholly or in part by any act or omission of Lessee,... The Fourth District in the present case held that Leonard L. Farber Company was controlling. However, that clause cited above requires that the indemnitor would only indemnify for occurrences occasioned wholly and in part by act or admission of the lessee. -8-

13 However, in the present case, there is no requirement that the trainer be guilty of any negligent act or omission, but instead must indemnify for any act in connection with the trainer's activities at Gulfstream, without any regard to whether the trainer was negligent. Similarly, the court applied Marino v. Weiner, supra, to hold that it was controlling, since the language "occasioned wholly or in part by an act or omission of lessee," according to the Fourth District, "manifested the unequivocal intent to indemnify the lessor where joint negligence existed." It may be that in a lease situation, a clause such as this might manifest an intention to indemnify only for joint negligence. In a lease situation, normally there would be a negligent condition, resulting in an accident. However, by applying this to a horse race, involving horses which "have a mind of their own," and are racing at high speed, this makes no sense. Accidents at horse race tracks happen all the time, with no human being negligent, holding that a party must indemnify for any activities, certainly does not manifest an intent that he would only indemnify for acts of joint negligence. Therefore, there is a misapplication of Marino v. Weiner. Similarly, the case of Mitchell Maintenance Systems, A Division of Lift-A-Loft Corporation v. State, Department of Transportation, 442 So. 2d 276 (Fla. 4th DCA 1983) is not on point, because the court in Mitchell interpreted the indemnification clause to only require Mitchell to indemnify for acts when it was negligent. However, the literal wording of the indemnity agreement in the present case, requires Kimmel to indemnify for any occurrence in which the horse is involved on the track, regardless of whether there was negligence by -9-

14 is is a horse Kimmel. racing... track, where accidents happen all the time which are not a result of negligence of a human, and the wording in the contract would require Kimmel to indemnify for any situation involving his horse, even if Kimmel is not negligent. Therefore, by applying Mitchell to a horse race situation, there is a misapplication of the law. Therefore, there is express and direct conflict with the first three cases cited, as well as a misapplication of the three cases in the opinion, which were relied on as being directly controlling, and therefore the Court should accept jurisdiction. CONCLUSION There is express and direct conflict, and the decision is also based on a misapplication of law, with the cases cited. Therefore, this Court should accept jurisdiction. -10-

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 28th day of August, 2002 to: Joseph M. Loughren, Esquire LOUGHREN & DOYLE, P.A. 315 Southeast 11th Street Fort Lauderdale, FL Caryn L. Bellus, Esquire KUBICKI DRAPER 25 West Flagler Street City National Bank Building Penthouse Suite Miami, FL Joel S. Fass, Esquire COLODNY, FASS & TALENFELD, P.A West Commercial Boulevard Suite 232 Fort Lauderdale, FL Larry L. Cook, Esquire WAMPLER, BUCHANAN & BREEN 900 SunTrust Building 777 Brickell Avenue Miami, FL Erik W. Nielsen, Esquire ELLISON, NIELSEN, KNIBBS, ZEHE & ANTAS, P.C. 100 W. Monroe - 18th Floor Chicago, IL CERTIFICATION OF TYPE It is hereby certified that the size and type used in this Brief is 12 point Courier, a font that is not proportionately spaced. -11-

16 Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Esquire Suite South Andrews Avenue Fort Lauderdale, FL (954) Broward (954) Dade and Joseph M. Loughren, Esquire LOUGHREN & DOYLE, P.A. Ft. Lauderdale, FL By: Richard A. Sherman /mn -12-

17 INDEX TO PETITIONER'S APPENDIX Pages Decision of the Fourth District Court of Appeal, dated May 22, A1-5.