Florida Judge Rules No Duties to Indemnify or Defend Where Record Underdeveloped
My name is Benjamin Kaufman, and I am a third-year litigation associate at Derrevere Stevens Black and Cozad law firm in West Palm Beach Florida. On August 13, 2025, I successfully obtained an award of final summary judgment on a hotly contested matter in Miami-Dade County, Florida, involving catastrophic injuries, seven-figures of potential damages, and complex issues of contract law. Here I explore some of the legal issues, a brief analysis of the contractual duties to defend and indemnify, as well as more nuanced rules of civil procedure, standing, and subject matter jurisdiction, as expressed in the Final Order entered by Judge Javier Enriquez.
Initial Pleadings: The underlying lawsuit involved three parties: the plaintiff, a general contractor, and a subcontractor. The Plaintiff sustained catastrophic injuries after entering a job site with an active project, unbeknownst to the workers at the site, when the outriggers of a bucket truck were deployed, crushing the Plaintiff’s leg and resulting in an amputation. The general contractor hired the subcontractor to perform the work pursuant to a subcontract agreement, which formed the basis of the summary judgment arguments, and when the lawsuit was filed, the general contractor filed a Crossclaim against the subcontractor (discussed below). The jobsite itself was located on a public street, involved maintenance of public light poles, and was manned solely by employees of the subcontractor. The Plaintiff sued both defendants in a three-count lawsuit: (1) Negligence against the General Contractor, (2) Negligence against the Subcontractor, and (3) Vicarious Liability Against the Subcontractor. Both defendants answered the lawsuit, generally denying liability.
Discovery and Crossclaim: Due to the severity of the injuries, both defendants settled with the Plaintiff early in litigation, with very little discovery completed. The discovery involved two (2) witness depositions and limited written discovery. Before the Plaintiff settled with the defendants, the general contractor raised a crossclaim against the subcontractor, which remained before the Court for adjudication. In its Crossclaim, the general contractor brought three counts, seeking damages for (1) Contractual Duty and Defense, (2) Common Law Indemnity, and (3) Breach of Contract, based on the purported failure to name the general contractor as an additional insured on insurance policies. The General Contractor essentially sought reimbursement for any monies it paid to settle with the plaintiff, as well as compensation for any attorney’s fees extended in defending itself against the Plaintiff, under the theory that the subcontractor’s actions were the sole reason the General Contractor got sued. With a bench trial looming on the Crossclaim, the Court granted the parties leave to draft, file, and argue competing motions for summary judgment.
MSJ Hearing: The parties briefed their respective positions and argued for final summary judgment before the Court. At hearing in early July of 2025, the general contractor argued, in short, that the duty to defend was unequivocally triggered based on the operative language in the subcontract and the pleadings; that this finding naturally extends to trigger the contractual duty to indemnify; and that the subcontractor breached the subcontract by failing to do either. In response, I walked the Court through the controlling standards for these contractual issues, and explained that, although the duties to defend and indemnify are often found together and analyzed as a “packaged deal,” they have demonstrably different standards which are instructive. Specifically, in analyzing a contractual duty to defend, the Court looks at the language of the pleadings and the controlling contractual language; and for contractual indemnity, the court employs a multi-faceted analysis which focuses on the record evidence. Ultimately, the Court adopted this analysis.
Duty to Defend: In analyzing the duty to defend, the Court focused on the pleadings in finding that that the subcontractor had no duty to defend the general contractor because the latter was sued for its own negligence for breaching its nondelegable duty to supervise and maintain a safe job site, and not for vicarious liability on behalf of the subcontractor. Stated differently, the Court found that the Plaintiff did not sue the general contractor for issues arising out of, relating to, or in connection with the subcontractor’s “work contemplated in the subcontract agreement,” but it was instead sued for breaching its nondelegable duty. This was a dispositive difference. After reviewing the pleadings and the operative Subcontract to determine if the general contractor was sued purely for vicarious liability of the subcontractor—and noting, inter alia, that (1) the subcontractor was not an agent of the general contractor pursuant to the Subcontract language, and (2) that Plaintiff did not sue the general contractor for vicarious liability—the Court found as a matter of law that no contractual duty to defend was triggered as between the Parties.
Duty to Indemnify: Because the subcontractor had no duty to defend, the Court found as a matter of law that no duty to indemnify can exist because the prior is much broader. Relying on Metropolitan Dade County v. CBM Industries of Minnesota, Inc., 776 So. 2d 937 (Fla. 3d DCA 2000), the Court analyzed the record evidence to determine whether the contractual duty to indemnify was ever triggered. It found that it was not, stating “Because the analysis centers on the record evidence, typically to be adduced at trial (see CBM), and there is insufficient record evidence to establish that any contractual duty to indemnify was triggered; nor are there any genuine issues of material fact prohibiting summary judgment,” the subcontractor was entitled to final summary judgment on the issue of contractual duty to indemnify. In so holding, the Court drew specific attention to the fact that discovery was closed, pretrial disclosures were completed, and the record nonetheless remained deplete of evidence tending to establish that the subcontractor did anything wrong, or failed to do something it should have done, which specifically caused the general contractor to get sued. On the contrary, the Court noted, the Subcontractor’s Motion cited an abundance of examples of the Subcontractor taking preventative measures to maintain a safe job site, including putting out safety cones, flags, warning lights, warning signs, and mechanical safety measures. Because discovery was closed and the case was approaching trial, the facts were on the table, and the Court found them to be insufficient to trigger the duty to indemnify. The Court concluded this analysis by stating “As it stands, to find that [Subcontractor] must contractually indemnify [General Contractor] here is to find that [Subcontractor] was negligent, before [General Contractor] meets its burden of proof as the Cross-Plaintiff. Under the summary judgment standard, no reasonable trier of fact could agree.”
Common Law Indemnity: Here I succinctly explained to the Court that the law is clear: parties in Florida cannot achieve common law indemnity unless it can be shown that they are completely without fault. See Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979) (confirming “Indemnity is a right which inures to one who discharges a duty owed by him” and common law indemnity is only available to parties wholly without fault). This remedy is unavailable—I argued—if for no reason other than that the record evidence demonstrates that the General Contractor was wholly absent from the job site, such that it could not have supervised the job site, which is directly in contravention of its statutory non-delegable duties as a general contractor to maintain a safe job site. I believed this was the Subcontractor’s strongest argument and chose not to belabor the point, asserting something such as “Had [it] supervised the job site, perhaps [Plaintiff] would have been spotted in time, and this whole situation could have been avoided. That is why plaintiff sued [the General Contractor], not because the Subcontractor did something wrong which is vicariously attributable to the General Contractor. Ignoring this crucial fact is to disregard our public policies which strive to hold general contractors responsible to members of the public, irrespective of any contractual agreements between joint tortfeasors.” The Court agreed and summarily ruled that the General Contractor was not entitled to common law indemnity because “no reasonable trier of fact could conclude that [the general contractor] was wholly without fault.”
Breach of Contract: As the final nail in the coffin, the Court found that there was no breach of contract for two reasons: (1) the alleged breach, premised on failure to defend and indemnify, was duplicative of the first two counts; and (2) the subcontractor satisfied its duty to name the general contractor as an “additional insured” on its commercial general liability (“CGL”) policy, at which time it became the insurance carrier’s prerogative how to proceed. Because the Subcontractor satisfied its duty to name the General Contractor as an additional insured on its CGL policy, and because the Court ruled that no duties to indemnify or defend were triggered, the Court reasoned that those findings necessarily extend to the breach of contract claim, such that the Subcontractor was entitled to final judgment as a matter of law.
Miscellaneous Issues: Separate from the above, I argued to the Court that it should consider potential issues with standing and subject matter jurisdiction as overarching themes. The general issue was based on the notion that the general contractor itself incurred no out-of-pocket damages in defending itself or settling with the Plaintiff. Largely procedural, the issue can be framed in a few different ways: At what time in a proceeding must a party present proof of damages when its alleged damages arise from a confidential settlement agreement? If a general contractor seeks reimbursement for settlement funds and attorney’s fees which its insurance carrier paid in full, does that party have any articulable damages when seeking reimbursement for same? If not, what is the general contractor’s basis to establish standing? Does the Court lack subject matter jurisdiction in this scenario if there are no articulable, recoverable damages? Should the general contractor have included its insurance carrier as a party plaintiff, and/or plead its crossclaim as one in which it was suing on behalf of its carrier? At the close of the hearing, the Court instructed the parties to submit competing orders granting the respective motions. Ultimately, because there were so many issues to brief in the proposed order, I chose to omit these arguments regarding standing, subject matter jurisdiction, and articulable damages. Thus, although the Court did not reach these issues in its holding, the Third District Court of Appeals may address the arguments in the event the Order is appealed. For more information on these issues, see Dep’t of Revenue v. Daystar Farms, Inc., 803 So. 2d 892, 896 (Fla. 5th DCA 2002); Classic Concepts, Inc. v. Poland, 570 So. 2d 311 (Fla. 4th DCA 1990).
Personal Takeaways: As a third-year attorney, this summary judgment hearing was the most complex issue I have personally argued to date. My biggest takeaways were twofold:
- Preparation. Between the two Motions for Summary Judgment, the parties’ Responses in Opposition, and the Reply Briefs—as well as related exhibits and supporting evidence—the filings themselves spanned over 300 pages and cited approximately 50 cases, aside from the landmark cases outlining the summary judgment standard. The hearing was scheduled for one hour. Thus, determining how to best prepare for this hearing was a challenge. After consulting with more experienced lawyers, well in advance of the hearing, I resolved to create two documents to help me prepare: (a) a list of every case cited in all of the filings, along with their locations in the filings (page number and paragraph number), the proposition put forward, and whether hearing time should be allocated to distinguishing cases or presenting case comparisons; and (b) a summary of my argument with caselaw citations. The prior helped me to refresh myself on the arguments and to identify 3-4 cases worth quoting or excerpting at hearing. It also helped me to predict which case(s) the opposing side was likely to rely on in oral arguments. The latter document helped me stay focused and on-track during the hearing, and to structure the presentation so as to relay several different issues in a succinct, persuasive, and straightforward manner.
- Framing the Issues. To my recollection, the Court seemed to respond positively to receiving a roadmap of the issues at the outset of the hearing. Because the opposing side presented first, my initial comments to the Court were to address non-issues or topics to which the parties agreed, which allowed me to then introduce the narrow but voluminous issues to which we did not agree. My opening statement was largely formulated like a law school “IRAC” essay: here are the issues, a brief conclusion, a one-sentence summary of the analysis, and then a detailed analysis of each issue, starting with the legal standard. “Here is what I am going to tell you – here is what I am telling you – and here is a recap of what I just told you.” Framing the presentation in this manner seemingly helped the Court track the issues, and it certainly helped me stay on track. Notably, the judge did not interrupt either of the parties’ presentations to ask questions. At the conclusion of the hearing, the Court simply instructed the parties to submit competing orders, one of which was entered in our favor on the evening before our pre-trial conference hearing.
I learned a lot from this process and owe a great deal of thanks to the managing partners who entrusted me to tackle such a task. I am a civil litigation attorney specializing in personal injury, general liability, condominium act claims, breach of contract, and construction defect claims. Feel free to contact me anytime via e-mail at bck@derreverelaw.com or via phone at 561-684-3222, if you would like to discuss a potential case or talk further about any of the legal issues presented here.
