final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Karen Cole,
Richard A. Sherman, Sr., and James W. Sherman of Law Offices
of Richard A. Sherman, P.A., Fort Lauderdale; Dennis R.
Schutt and Jeffrey Devonchik of Schutt, Schmidt & Noey,
Jacksonville, for Appellant.
Howell of Jay Howell & Associates, Jacksonville; Stuart
Aaron Weinstein, Richard S. Weinstein, and Richard P.
Hermann, II, of Shapiro, Blasi, Wasserman & Hermann,
P.A., Boca Raton; Bradley J. Edwards of Farmer Jaffe Weissing
Edwards Fistos & Lehrman, P.L., Fort Lauderdale; H.
Christopher Bartolomucci of Kirkland & Ellis, Washington,
D.C., for Appellees.
Properties Incorporated (Highwoods) appeals a final order
denying its motion for final judgment for indemnity against
Schindler Elevator Company (Schindler). For the reasons
discussed herein, we find Highwoods was not precluded from
seeking indemnity in this action, but remand for further
litigation on the merits of the indemnity claims. We affirm
the final order in part, reverse in part, and remand for
1997, Highwoods entered into an elevator service contract
with Schindler's predecessor in interest, Millar Elevator
Service Company. Under the terms of the service contract,
Schindler was responsible for maintenance and repair of
elevators in a Jacksonville office building owned by
Highwoods, which included response to elevator entrapments.
The service contract also included a reciprocal indemnity
1999, Janice Beasley was entrapped and injured in an elevator
in the subject office building. She and her husband, Stephen
Beasley, filed suit against Highwoods and Schindler alleging
Highwoods breached a common law duty to use reasonable care
in the inspection and maintenance of the elevator, and
Schindler negligently failed to perform its duty, per the
service contract, to inspect and maintain the elevator.
Counsel for Highwoods asked Schindler to assume the defense
of the entire case per the service contract, but Schindler
declined the request. Highwoods then filed a cross-claim
against Schindler for common law and contractual indemnity
that alleged Highwoods was entirely without fault, that the
plaintiffs' damages were solely and proximately caused by
Schindler, and that any liability on Highwoods's part
would be "vicarious, constructive, derivative, and
technical in nature."
years later, the plaintiffs amended the complaint to include
a claim that Highwoods had a non-delegable duty under chapter
399, Florida Statutes, to ensure the safe operation and
proper maintenance of the elevator. The amended complaint
also alleged Highwoods and Schindler failed to reasonably
respond to the elevator malfunction. Highwoods did not seek
to amend its cross-claim in response to the amended
case proceeded to a jury trial that was bifurcated into two
phases: liability and damages. On liability, the jury
determined that neither Highwoods nor Schindler was negligent
in the inspection, maintenance, service, or repair of the
elevator. The jury found Highwoods and Schindler were each
fifty percent negligent in their response to the elevator
malfunction. Highwoods later successfully moved for a
directed verdict on liability. The order granting the motion
for directed verdict found no evidence that Highwoods's
active negligence was a legal cause of the plaintiffs'
injuries, but concluded Highwoods had a non-delegable duty to
the plaintiff regarding the safe operation and proper
maintenance of the elevator in question.
case proceeded to a jury trial on phase two for causation and
damages. During the phase two trial, Highwoods and the
plaintiffs reached a secret settlement agreement that
Highwoods characterizes as a "high-low" agreement
between $490, 000 and $510, 000. Highwoods remained in the
trial, but did not appear on the verdict form.
Highwoods's settlement agreement with the plaintiffs was
not disclosed to the jury and was not disclosed to Schindler
and the trial court until later. While the jury was
deliberating, Schindler and the plaintiffs reached a
settlement, which was disclosed to the court. The jury
returned a verdict for $13, 000, 000, which was in excess of
Schindler's settlement amount. The plaintiffs eventually
dismissed the action against both parties.
Granted Summary Judgment on Indemnity
moved for summary judgment against Schindler, seeking common
law and contractual indemnity for its $510, 000 payment to
the plaintiffs. A new judge entered summary judgment in favor
of Highwoods on both claims. The order found the juries'
determinations that Schindler was negligent and was the legal
cause of the plaintiffs' injuries coupled with the
court's previous determination that Highwoods remained
vicariously liable to the plaintiff by operation of its
non-delegable duty under section 399.02(5)(b), Florida
Statutes, satisfied the requirements for Highwoods to be
indemnified under the clear and unambiguous indemnity
provision of the contract. The order also found no genuine
issue of material fact with regard to common law indemnity.
The order found Highwoods had established it remained liable
to the plaintiff and had remained a party defendant with
exposure based upon its non-delegable duty for