Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 5, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-317 Lower Tribunal No. 15-141-P ________________ Brother's Painting & Pressure Cleaning Corp., Appellant, vs. Curry-Dixon Construction, LLC, et al., Appellees. An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge. Buckner, Shifrin, Etter, Dugan & Bradfute, P.A, and Robert O. Dugan and Agustin Alvarez, for appellant. Conroy Simberg, and Samuel B. Spinner (Hollywood), for appellee Curry- Dixon Construction, LLC. Before LINDSEY, HENDON, and MILLER, JJ. HENDON, J. Brother’s Painting & Pressure Cleaning Corp. (“Brother’s Painting”) appeals from the final summary judgment entered in favor of Curry-Dixon Construction, LLC (“Curry-Dixon”), a general contractor, on Curry-Dixon’s crossclaim for common law indemnity against Brother’s Painting, a subcontractor hired by Curry- Dixon. For the reasons that follow, we affirm. I. Facts and Procedural History The underlying action stems from a fire that occurred inside of a condominium unit that was being renovated. The owner of the condominium unit, MD Energy Holdings, LLC, and its principals, Daryl Andersen and Muriel Andersen (collectively, “the Plaintiffs”), filed suit against their general contractor, Curry- Dixon, and Curry-Dixon’s painting subcontractor, Brother’s Painting. The operative complaint asserted counts for breach of contract, negligence, and indemnification against Curry-Dixon. The negligence count asserted that Curry-Dixon was vicariously liable for Brother’s Painting’s negligence and that Curry-Dixon was also negligent in performing the renovation work and by failing to properly supervise Brother’s Painting. In addition, the operative complaint asserted a separate negligence count against Brother’s Painting based on its negligent storage of paint and/or a solvent, which spontaneously combusted and caused a fire that damaged the condominium unit and personal property. The contract for the renovation project provided, in part, that Curry-Dixon would “maintain a clean site and dispose of debris in a dumpster or trailer on site.” 2 Curry-Dixon filed a crossclaim against Brother’s Painting, seeking common law indemnity. In the crossclaim, Curry-Dixon alleged that Brother’s Painting owed a duty of care to Curry-Dixon to perform the painting work without creating a dangerous condition and/or causing damage. Brother’s Painting breached its duties by placing a rag soaked with an oil-based stain inside of a garbage bin, which rag spontaneously combusted and caused a fire that damaged the condominium unit. Curry-Dixon further asserted that it was completely without fault for the fire in the condominium unit, Brother’s Painting was solely at fault for the fire, and the Plaintiffs were attempting to hold Curry-Dixon liable for the sole negligence of Brother’s Painting. Following discovery, the undisputed evidence showed as follows. The day before the fire, employees of Brother’s Painting were using an oil-based product to stain baseboards, which product was applied to several rags. Because of the fumes caused by the oil-based stain, other contractors left early that day, leaving only employees of Brother’s Painting in the condominium unit. When the employees of Brother’s Painting left later that afternoon, they gathered the rags but accidentally left one of the rags in a plastic garbage bin that was in the living room area of the condominium unit, which was contrary to Brother’s Painting’s safety protocol. Brother’s Painting’s protocol requires its employees to collect oil-soaked rags, wash the rags, place the washed rags in a garbage bag, take the garbage bag with them, 3 and dispose of the garbage bag at Brother’s Painting’s office. The following morning, at approximately 8:00 a.m., when a contractor arrived, he saw smoke coming from the condominium unit and called the fire department. The fire department responded and extinguished the fire. There was a fire in the plastic garbage bin where Brother’s Painting’s employee had left the rag. The fire caused the plastic garbage bin to melt down into a circle on the floor, and the condominium unit was damaged as a result of the fire, smoke, and the use of fire extinguishers. The fireman who first responded to the fire testified in his deposition that a contractor told him that the painters had left oily rags in the melted garbage bin. Although not a fire investigator, based on what he was told and his personal observations of the condominium unit, the fireman’s “best determination” was that the oily rag in the plastic garbage bin spontaneously ignited. The fireman confirmed that that a rag soaked with an oil-based stain can spontaneously combust when exposed to oxygen. The Plaintiffs filed a motion for partial summary judgment as to liability for the breach of contract and negligence counts alleged against Curry-Dixon (“motion for partial summary judgment”). The Plaintiffs asserted they were entitled to partial summary judgment as to liability because Curry-Dixon is vicariously liable for the negligent acts of its subcontractor. In response, Curry-Dixon asserted, among other 4 things, that because it was merely passively liable as a result of Brother’s Painting’s negligence, Brother’s Painting was required to indemnify Curry-Dixon. On September 8, 2016, the trial court conducted a hearing on the Plaintiffs’ motion for partial summary judgment, which Brother’s Painting did not attend because it had settled with the Plaintiffs the day before for $343,000. At the conclusion of the hearing, the trial court granted the Plaintiffs’ motion for partial summary judgment, and subsequently entered an order on September 12, 2016, which provides: “There is no contrary evidence to show that the fire which occurred at the subject property was not caused by the improper disposal of oily rags, as testified to at the deposition of John Curry[.]” Curry-Dixon then moved for partial summary judgment as to ultimate liability on its claim for common law indemnity against Brother’s Painting, asserting that Brother’s Painting was the sole party at fault for all the damages caused to the condominium unit. As such, Curry-Dixon is vicariously liable for Brother’s Painting’s sole negligence and is entitled to indemnity. Brother’s Painting also moved for summary judgment as to Curry-Dixon’s claim for common law indemnity, asserting, in part, that Curry-Dixon was not a passive tortfeasor, but rather an active tortfeasor, and therefore, Curry-Dixon was not entitled to common law indemnification. Brother’s Painting further asserted that the trial court had not yet made a finding as to the causation of the fire, but merely 5 stated in its order entered on September 12, 2016, that there was no contrary evidence indicating that the fire was not caused by the oily rag Brother’s Painting’s employee left in the garbage bin. In October 2016, the Plaintiffs and Curry-Dixon settled all claims asserted against Curry-Dixon in the operative complaint. Thus, at that point, the only remaining issue related to Curry-Dixon’s crossclaim for common law indemnity against Brother’s Painting. Following a hearing on the motions for summary judgment relating to the indemnity issue, the trial court granted Curry-Dixon’s motion for partial summary judgment as to ultimate liability and denied Brother’s Painting’s motion for summary judgment. On November 14, 2016, the trial court entered an order, which states that Curry-Dixon’s negligence was merely passive, and therefore, Curry- Dixon was entitled to common law indemnification from the actively negligent party, Brother’s Painting. The order also provides that there was no contrary evidence indicating that the fire at the condominium unit was not caused by Brother’s Painting’s “actively negligent act” of improperly disposing of the oily rag inside of the condominium unit. Finally, any failure of Curry-Dixon to remove the hazardous condition created by Brother’s Painting and/or failing to provide a proper receptacle for any hazardous material was passive negligence. In May 2018, the parties filed a joint motion for clarification as to the trial 6 court’s order granting partial summary judgment in favor of the Plaintiffs as to the breach of contract and negligence counts and the order granting partial summary judgment in favor of Curry-Dixon on its crossclaim for indemnity against Brother’s Painting. Specifically, Curry-Dixon requested a clarification as to whether the issue of liability had been resolved in Curry-Dixon’s favor. Following a hearing, the trial court entered an order stating that based on its previous orders, the only issue that remained pending was whether the amount paid by Curry-Dixon to settle with the Plaintiffs was reasonable and necessary in light of Brother’s Painting’s direct settlement with the Plaintiffs. Curry-Dixon then filed a motion for summary judgment as to the reasonableness of its settlement amount with the Plaintiffs.1 Following a hearing, the trial court granted the motion, and thereafter, the trial court entered a final judgment in favor of Curry-Dixon and against Brother’s Painting. Brother’s Painting’s appeal followed. II. Analysis 1 Brother’s Painting does not challenge the reasonableness of Curry-Dixon’s settlement amount. Prior to entering into the settlement, Curry-Dixon emailed Brother’s Painting stating that it intended to enter into a final settlement with the Plaintiffs. Curry-Dixon invited Brother’s Painting to participate in the settlement discussions, informed Brother’s Painting of the specific amount it would be offering to the Plaintiffs to settle the claims, and stated that Curry-Dixon believed that the proposed settlement amount was reasonable. In response, Brother’s Painting emailed Curry-Dixon, stating that it agreed that the settlement amount was reasonable. 7 Brother’s Painting contends that the trial court erred by entering summary judgment in favor of Curry-Dixon as to its claim for common law indemnity against Brother’s Painting. Based on our de novo review, we disagree. See Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 3d DCA 2019) (holding that a trial court’s order granting final summary judgment is reviewed de novo). In moving for partial summary judgment as to liability on its claim for common law indemnity, Curry-Dixon was required to show there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979), the Florida Supreme Court set forth the general principles necessary for a party to prevail on its claim for common law indemnity. In Houdaille, the Florida Supreme Court explained as follow: Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought. It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable. Id. at 492-93 (citations omitted). Further, “[a] weighing of the relative fault of tortfeasors has no place in the concept of indemnity for the one seeking indemnity must be without fault.” Id. at 493. The Court also explained that Florida courts have 8 used the terms “active-passive” or “primary-secondary” to “designate the conduct of the parties which will permit the party seeking indemnity to recover,” but regardless of the term used, “what they are really speaking of is fault or no fault.” Id. In addition, “Florida courts have required a special relationship between the parties in order for common law indemnification to exist.”2 Diplomat Props. Ltd. P’ship v. Tecnoglass, LLC, 114 So. 3d 357, 360 (Fla. 4th DCA 2013); see also Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 642 (Fla. 1999); Houdaille, 374 So. 2d at 493. Brother’s Painting argues that Curry-Dixon was actively negligent, and therefore, as a matter of law, Curry-Dixon is not entitled to indemnity. As the undisputed facts show that Brother’s Painting was solely negligent and because Curry-Dixon is only vicariously liable for Brother’s Painting’s negligence, we disagree. Contrary to Brother’s Painting’s argument, the undisputed evidence demonstrates that the damages to the condominium unit were caused by Brother’s Painting’s sole negligent act of leaving an oil-soaked rag in the plastic garbage bin that was in the condominium unit, which rag spontaneously combusted, resulting in 2 A “special relationship” exists between Curry-Dixon, a general contractor, and its subcontractor, Brother’s Painting. See CC-Aventura, Inc. v. Weitz Co., No. 06- 21598-CIV, 2009 WL 2136527, at *2 (S.D. Fla. July 13, 2009) (holding that requisite special relationship exists between general contractor and subcontractor). 9 the fire that damaged the condominium unit.3 Curry-Dixon’s failure to empty the garbage bin prior to leaving the condominium unit and its failure to provide a specialized bin to dispose of oily rags does not amount to active negligence. Brother’s Painting was aware of its duty to remove all oily rags from the condominium unit, but nonetheless negligently left one of the oily rags in the condominium unit. Further, in attempting to attribute some fault to Curry-Dixon, Brother’s Painting argues that, in addition to alleging in the operative complaint that Curry- Dixon was vicariously liable for Brother’s Painting’s actions, the Plaintiffs also alleged that Curry-Dixon was negligent based on its failure to perform its own work and by failing to supervise Brother’s Painting’s work. The Plaintiffs’ allegations in their operative complaint are not controlling and cannot destroy a valid indemnification claim. See Julien P. Benjamin Equip. Co. v. Blackwell Burner Co., 450 So. 2d 901, 902 (Fla. 3d DCA 1984) (holding that a claim for indemnification is not precluded merely because the plaintiff’s complaint only alleges active 3 Brother’s Painting argues that the cause of the fire has not been conclusively established, and therefore, the trial court erred by entering summary judgment in favor of Curry-Dixon as there is a genuine issue of material fact. We disagree. The undisputed evidence showed that the fire was in the same garbage bin where Brother’s Painting left the rag; a rag soaked with an oil-based stain can spontaneously combust when exposed to oxygen; and Brother’s Painting was not able to demonstrate that the fire was caused by anything else but the rag soaked in the oil-based stain. 10 negligence by the party seeking indemnification); see also Mortg. Guarantee Ins. Corp. v. Stewart, 427 So. 2d 776, 780 (Fla. 3d DCA 1983) (holding that “the law has always permitted a person to bring an indemnity claim quite apart from the characterization of his conduct in the original complaint filed by the injured party”). To hold otherwise would impermissibly allow a plaintiff, not the facts of the case, to control a party’s right to indemnification. The undisputed facts demonstrate that the fire was caused solely because Brother’s Painting’s employee left a rag soaked in an oil-based stain in the condominium. We also reject Brother’s Painting’s argument that its and/or Curry-Dixon’s settlements with the Plaintiffs precluded Curry-Dixon from prevailing on its claim for common law indemnity against Brother’s Painting. See Mortg. Guarantee, 427 So. 2d at 780 (stating that “settlements or offers of settlement have never been considered admissions against interest binding on the parties making them”). Brother’s Painting’s settlement with the Plaintiffs does not preclude Curry-Dixon’s common law indemnity claim against Brother’s Painting. See Julien P. Benjamin Equip., 450 So. 2d at 902 (holding that a tortfeasor’s settlement with plaintiff, standing alone, does not release the tortfeasor from an indemnification claim filed by a party held vicariously liable by the same plaintiff for the tortfeasor’s conduct); Rebhan Leasing Corp. v. Trias, 419 So. 2d 352, 353 (Fla. 3d DCA 1982) (“The fact that the active tortfeasors settled with the plaintiff does not release them from the 11 claim for indemnification by the party held vicariously liable.”). Further, based on the undisputed facts, Curry-Dixon’s settlement with the Plaintiffs does not preclude Curry-Dixon’s indemnity claim against Brother’s Painting. See Heapy Eng’g, LLP v. Pure Lodging, Ltd., 849 So. 2d 424, 425 (Fla. 1st DCA 2003) (“Once a legal obligation has been established in the underlying action on the part of the indemnitee, the indemnitor will become bound by a settlement agreement in a suit against the indemnitee if the indemnitor was given notice of the claim and was afforded an opportunity to appear and defend the claim, as long as the settlement was not the result of fraud or collusion.”). 4 The remaining arguments raised by Brother’s Painting do not merit discussion. Affirmed. 4 In this appeal, Brother’s Painting does not argue (1) it was not on notice of Curry- Dixon’s indemnity claim, (2) it was not afforded an opportunity to appear, or (3) the settlement was procured as a result of fraud or collusion. 12