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Blok Builders, LLC v. Katryniok

Florida Court of Appeals, Fourth District

April 25, 2018

BLOK BUILDERS, LLC d/b/a IKON BUILDERS, a Florida limited liability company, Appellant,
v.
PEDRO KATRYNIOK, MASTEC NORTH AMERICA, INC., a Florida corporation, and BELLSOUTH TELECOMMUNICATIONS, LLC, d/b/a AT&T FLORIDA, Appellees.

          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 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 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 ...


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