Background
Monica Pappalardo sued Walgreen Company and Dynaserv Florida, LLC after she tripped and fell on a raised, uneven portion of sidewalk outside a Walgreen store, suffering severe bodily injuries. She asserted negligence claims against both defendants—Walgreen for breaching its non-delegable duties as premises owner, and Dynaserv for breaching duties arising from its maintenance contract with Walgreen.
Walgreen filed crossclaims against Dynaserv, including a Count V crossclaim for contractual indemnity. Under their service agreement, Dynaserv was required to conduct weekly inspections of the exterior premises, notify Walgreen of noticeable defects within 24 hours, and immediately report health or safety issues. The contract also contained a broad indemnification provision requiring Dynaserv to indemnify Walgreen against any damages arising out of Dynaserv’s negligent acts or omissions in performing its obligations.
Dynaserv moved for summary judgment on all crossclaims, and the trial court granted the motion in full. Walgreen appealed.
The Court’s Holding
The Sixth DCA reversed the summary judgment as to the Count V contractual indemnity crossclaim, finding that genuine issues of material fact remained regarding whether Dynaserv’s alleged failure to identify and report the raised sidewalk hazard during its weekly inspections constituted negligence triggering the indemnification obligation. The court found that the contractual language—requiring indemnification for damages “arising out of” Dynaserv’s “negligent acts or omissions”—created a factual question as to whether Dynaserv’s inspection and reporting failures were the type of negligent omissions contemplated by the indemnity clause.
The court affirmed all other aspects of the trial court’s rulings without further discussion, including the summary judgment in favor of Dynaserv on Plaintiff’s direct claim.
Key Takeaways
- Contractual indemnity provisions in service agreements can survive summary judgment where factual disputes exist about whether the indemnitor’s performance failures constitute “negligent acts or omissions” triggering the indemnity obligation.
- A maintenance contractor’s duty to inspect and report hazards—even if insufficient to support direct tort liability to an injured plaintiff—may still trigger contractual indemnity obligations to the property owner.
- The “arising out of” language in indemnity clauses is broadly construed and may encompass omissions in contractual inspection and reporting obligations.
Why It Matters
This case is significant for Florida premises liability practitioners and insurance defense counsel who regularly deal with maintenance contractor relationships. The ruling confirms that even where a plaintiff’s direct claim against a contractor fails—perhaps because the contractor owed no independent tort duty to the plaintiff—the property owner’s contractual indemnity claim may survive if the contractor’s performance failures arguably constitute negligence under the service agreement. Businesses should review their maintenance contracts to ensure indemnity provisions clearly define the scope of inspection and reporting obligations, while contractors should understand that failure to perform contractual duties may trigger indemnity exposure even absent direct tort liability.