IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC CHURCH & TOWER OF FLORIDA, INC., vs. Petitioner, BELLSOUTH TELECOMMUNICATIONS, INC., a foreign corporation, and LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondents. / ON PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL RESPONDENT BELLSOUTH TELECOMMUNICATIONS, INC. S BRIEF ON JURISDICTION JOHN R. HARGROVE, ESQUIRE CAROL A. GART, ESQUIRE GORDON HARGROVE & JAMES, P.A. Attorneys for BellSouth 2400 East Commercial Boulevard Suite 1100 Fort Lauderdale, FL (954) (954) Facsimile

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. NO EXPRESS OR DIRECT CONFLICT WITH DECISIONS OF THIS COURT OR OTHER DISTRICT COURTS OF APPEAL AND NO REASON TO EXERCISE DISCRETIONARY REVIEW CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT SIZE i

3 TABLE OF AUTHORITIES Cases C. R. Mall, Inc. v. Sears, Roebuck & Co., 667 So. 2d 1016 (Fla. 5th DCA 1996)... passim Church & Tower of Florida, Inc. v. BellSouth Telecommunications, Inc., 936 So. 2d 40 (Fla. 3d DCA 2006)... 1, 2, 3 Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999)... passim Escobar v. United Automobile Insurance Co., 898 So. 2d 952 (Fla. 3d DCA 2005)... 6 Fecteau v. Southeast Bank, N.A., 585 So. 2d 1005 (Fla. 4th DCA 1991)... passim Gainesville-Alachua County Regional Airport Authority v. R. Hyden Construction Co., 766 So. 2d 1238 (Fla. 1st DCA 2000)... 7 Kipp v. Kipp, 844 So. 2d 691 (Fla. 4th DCA 2003)... 7 Liberty Mutual Insurance Co. v. Capeletti Brothers, Inc., 699 So. 2d 736 (Fla. 3d DCA 1997)... 7 Rea v. Barton Protective Services, Inc., 660 So. 2d 772 (Fla. 4th DCA 1995)... 5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4 Scharlin v. Orange County, 669 So. 2d 276 (Fla. 5th DCA 1996)... passim Westinghouse Electric Corp. v. Prudential Insurance Co. of America, 547 So. 2d 721 (Fla. 1st DCA 1989)... 2, 7, 8 ii

4 Statutes and Constitutions Fla. Const. Art. V, 3(b)(3)... 4 Other Authorities 29 Nova L. Rev. 431 (Spring 2005)... 4, 8 Rules Fla. R. App. P (a)... 8 iii

5 STATEMENT OF THE CASE AND FACTS Petitioner CHURCH & TOWER OF FLORIDA, INC. seeks discretionary review of this run of the mill contractual indemnity case in which the district court upheld summary judgment in favor of the indemnitee, respondent BELLSOUTH TELECOMMUNICATIONS, INC. Church & Tower of Fla., Inc. v. BellSouth Telecomm., Inc., 936 So. 2d 40, 41 (Fla. 3d DCA 2006). CHURCH & TOWER claims express and direct conflict with this Court s statement, in Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999), that it was premature to grant summary judgment on the issue of contractual indemnity, in that case, before resolving the underlying liability. The narrow facts of the Third District s opinion in this case, however, mention nothing with regard to alleged prematurity of the summary judgment or the status of the underlying claim. As the opinion states, CHURCH & TOWER and BELLSOUTH entered into a master contract wherein CHURCH & TOWER is required replace BELLSOUTH utility poles in Miami-Dade County. The contract requires CHURCH & TOWER to indemnify BELLSOUTH for BELLSOUTH s own alleged negligence for injuries arising out of CHURCH & TOWER s performance or nonperformance under the contract. 1

6 CHURCH & TOWER replaced a pole pursuant to the contract, and a construction worker was injured when his nail gun came into contact with FPL wires attached to that pole. The worker s guardian sued BELLSOUTH which in turn sued CHURCH & TOWER for contractual indemnity. The trial court granted summary judgment in favor of BELLSOUTH, determining that the contract required CHURCH & TOWER to indemnify BELLSOUTH on the underlying personal injury claim. Church & Tower, 936 So. 2d at 41. Prematurity is not addressed. 1 Petitioner also claims conflict with four district court decisions regarding contract interpretation: C. R. Mall, Inc. v. Sears, Roebuck & Co., 667 So. 2d 1016 (Fla. 5th DCA 1996); Scharlin v. Orange County, 669 So. 2d 276 (Fla. 5th DCA 1996); Fecteau v. Southeast Bank, N.A., 585 So. 2d 1005 (Fla. 4th DCA 1991); and Westinghouse Electric Corp. v. Prudential Insurance Co. of America, 547 So. 2d 721 (Fla. 1st DCA 1989). Unlike those cases, however, there is no mention here as to any facts of the type that led to reversal in the alleged conflict cases. 1 The lack of any factual treatment of this issue most likely stems from the fact the CHURCH & TOWER waived the issue by failing to raise it until its reply brief. 2

7 There is no discussion of contractual intent, patent ambiguity or latent ambiguity. The opinion simply states that CHURCH & TOWER appealed and that the Third District affirmed, finding that the indemnification clause is clear, unambiguous and that it requires CHURCH & TOWER to indemnify BELLSOUTH. Church & Tower, 936 So. 2d at 42. SUMMARY OF THE ARGUMENT The Third District s decision is not in express or direct conflict with any of the cases cited by CHURCH & TOWER, particularly given the limited facts set forth in the opinion. In addition, CHURCH & TOWER cites no particular significance to this case or reason to warrant this Court s discretionary review. ARGUMENT I NO EXPRESS OR DIRECT CONFLICT WITH DECISIONS OF THIS COURT OR OTHER DISTRICT COURTS OF APPEAL AND NO REASON TO EXERCISE DISCRETIONARY REVIEW A. No Express or Direct Conflict 1. Summary judgment not premature under WQBA. In WQBA, this Court reversed a contractual indemnity decision and in so doing observed that it is premature to resolve such a claim prior to a determination of underlying 3

8 liability. 731 So. 2d at CHURCH & TOWER claims that the decision on review resolves contractual indemnity prior to a determination of underlying liability and, therefore, conflicts. At the outset, conflict jurisdiction requires express and direct conflict[,] which means that the alleged conflict must be apparent from the four corners of the decision. Fla. Const. Art. V, 3(b)(3); Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). As Justice Anstead, Former Justice Kogan, Thomas Hall and Craig Waters have explained in the exhaustive article, The Operation and Jurisdiction of the Supreme Court of Florida, The Court s determination of jurisdiction is constrained by the four corners rule: conflict must appear within the four corners of the majority decision brought for review. 29 Nova L. Rev. 431, 512 (Spring 2005). Nothing in the four corners of the Third District s decision, however, reflects the status of the underlying personal injury claim against BELLSOUTH. CHURCH & TOWER therefore has no record basis to claim conflict with WQBA based on prematurity. Regardless, even if the underlying case status could be gleaned from the opinion, there is no express or direct conflict with WQBA because the type of contractual indemnity in WQBA is different from this case. In WQBA, participants in a parade were required to indemnify the parade sponsors. 731 So. 2d at 4

9 640. Several parade spectators were injured when a participant kicked flammable liquid into the crowd. Id. The injured spectators sued the parade sponsors who in turn filed a separate declaratory judgment action for indemnification against the parade participant that allegedly had caused the injuries. Id. at The trial court granted summary judgment in favor of the sponsors as to the contractual indemnity claim prior to a determination of liability on the underlying claim. Id. at 641. As is apparent from the decision, WQBA involved indemnification for the indemnitor s negligence. In sharp contrast, this case involves contractual indemnification for the indemnitee s negligence. This very distinction was drawn in Rea v. Barton Protective Services, Inc., 660 So. 2d 772 (Fla. 4th DCA 1995), which this Court relied upon in WQBA, 731 So. 2d at In Rea, the court made the point that prematurity is not an impediment in a case involving contractual indemnity for the indemnitee s own negligence. Rea, 660 So. 2d at 774. Given this factual and legal distinction and this Court s implicit approval of Rea for the very point argued by CHURCH & TOWER, there is no express or direct conflict with WQBA. 2. No conflict with contract interpretation decisions. CHURCH & TOWER also claims conflict with C.R. Mall, Scharlin and Fecteau, which reversed summary judgments to 5

10 resolve fact issues regarding contract interpretation. C.R. Mall reversed because of a latent ambiguity, 667 So. 2d at 1018; Scharlin because of a patent contract ambiguity, 669 So. 2d at 279; and Fecteau because of differing contract interpretations, 585 So. 2d at CHURCH & TOWER claims that affirmance of summary judgment in this case necessarily conflicts with those cases. Each decision, however, reflects a fact driven analysis -- facts which are not shared by this case. Nothing in the four corners of the decision on review reflects differing contract interpretations or any contention by CHURCH & TOWER as to any ambiguity -- latent or otherwise. Given that the Third District s decision found no ambiguity without discussion as to possible arguments or facts giving rise to an ambiguity there is no basis in the opinion to discern conflict with C.R. Mall, Scharlin or Fecteau. The upshot of CHURCH & TOWER s claim of conflict is that a contract determination case could never be resolved on summary judgment. Such a result is contrary to well-settled jurisprudence in this state that the determination of whether a contract is ambiguous is one for the trial court -- not the jury. E.g., Escobar v. United Auto. Ins. Co., 898 So. 2d 952, 954 (Fla. 3d DCA 2005). CHURCH & TOWER also ignores well- 6

11 established precedent that where there is no ambiguity, the interpretation of the agreement is a question of law for the court. E.g., Gainesville-Alachua County Reg l Airport Auth. v. R. Hyden Constr. Co., 766 So. 2d 1238, 1238 (Fla. 1st DCA 2000). In addition, the mere fact that both parties ascribe a different meaning to the contract language does not ipso facto render the contract ambiguous. Kipp v. Kipp, 844 So. 2d 691, 693 (Fla. 4th DCA 2003). Simply stated, there was no contract ambiguity here. The trial court properly made that determination and applied the contract to the undisputed facts. See Liberty Mut. Ins. Co. v. Capeletti Bros., Inc., 699 So. 2d 736, 738 (Fla. 3d DCA 1997). There is no conflict with C.R. Mall, Scharlin or Fecteau. CHURCH & TOWER s claim of conflict with Westinghouse is equally misguided. In that case, the court noted the general rule of strict construction in favor of an indemnitor for a noninsurance indemnity clause. 547 So. 2d at 722. CHURCH & TOWER argues that the decision on review is in conflict because it holds in favor of BELLSOUTH -- the indemnitee. Of course, this rule of construction does not require courts to find in favor of the indemnitor. It simply requires construction in the indemnitor s favor. Regardless, as Westinghouse also observed, such rules of strict construction do not apply when there is no 7

12 ambiguity. Id. at 721. And there was no ambiguity here. The rule of strict construction in favor of an indemnitor, therefore, does not apply in this case, and there is no conflict with Westinghouse. B. No Reason to Exercise Discretionary Review Even if a conflict were found to exist, CHURCH & TOWER gives no reason why this Court should exercise its discretion to review this case. See Fla. R. App. P (a)(2)(A)(iv). As also explained in the authoritative article on Florida Supreme Court jurisdiction, The final element in obtaining review of a conflict case is a showing that the issues are significant enough for the Court to exercise its discretion. 29 Nova L. Rev. at 523. No such significance is cited or exists in this case. As such, there is nothing to warrant exercise of discretionary review. CONCLUSION CHURCH & TOWER s petition for discretionary review should be denied. 8

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail this 27 th day of November, 2006, to: Richard A. Sherman, Esq., Counsel for Church & Tower, 1777 South Andrews Avenue, Suite 302, Fort Lauderdale, FL 33316; Julio C. Acosta, Esq., Acosta & Associates, P.A., Counsel for Church & Tower, 2701 South Bayshore Drive, Suite 500, Miami, FL 33133; Kenneth P. Carman, Esq., Carman, Beauchamp & Sang, P.A., Counsel for Liberty Mutual, 3335 N.W. Boca Raton Boulevard, Boca Raton, FL 33431; and Richard G. Bartmon, Esq., 1515 North Federal Highway, Suite 300, Boca Raton, FL CERTIFICATE OF COMPLIANCE WITH FONT SIZE The undersigned hereby certifies that the font of this brief is Courier New 12. GORDON HARGROVE & JAMES, P.A. Counsel for respondent BELLSOUTH 2400 East Commercial Boulevard Suite 1100 Fort Lauderdale, FL Telephone: (954) Facsimile: (954) By: s/carol A. Gart John R. Hargrove Florida Bar No Carol A. Gart Florida Bar No /Doc#96 9