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Highwoods Properties, Inc. v. Millar Elevator Service Co.

Florida Court of Appeals, First District

May 16, 2018

Highwoods Properties, Inc., Appellant,
v.
Millar Elevator Service Company and Schindler Elevator Company, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Karen Cole, Judge.

          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.

          Jay C. 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.

          Roberts, J.

         Highwoods 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 further proceedings.[1]

         Factual Background

         In 1997, Highwoods entered into an elevator service contract with Schindler's predecessor in interest, Millar Elevator Service Company.[2] 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 provision.

         In 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."

         Some 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 complaint.

         The 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.

         The 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.[3] 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.

         Highwoods Granted Summary Judgment on Indemnity

         Highwoods 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 ...


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