Will a Florida court enforce this clause against the drafter's own negligence, and does it have to say 'negligence'?
An exculpatory clause is not ineffective merely because it does not use the word 'negligence'. In Sanislo the Florida Supreme Court approved the Fifth District's decision holding a release effective to bar a negligence action despite the absence of express language releasing the defendant for its own negligence. It disapproved the First, Second, Third and Fourth District decisions to the contrary. The reasoning in that opinion, however, was joined in full by only two justices: the opinion is per curiam and ends 'LABARGA, C.J., and PERRY, J., concur. CANADY and POLSTON, JJ., concur in result. LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.', so the binding point is the decision's result and its disapproval of the conflicting district-court decisions, not the opinion's formulation of when release language is clear enough. Separately, Fla. Stat. § 558.0035 shields an individual design professional employee or agent from negligence liability under a professional services contract only if, among other conditions, the contract includes a prominent statement, in uppercase font at least 5 point sizes larger than the rest of the text, that the individual may not be held individually liable for negligence.
The trap
This is the opposite of the Texas express-negligence rule, and the trap is assuming Florida is symmetrical. The Sanislo opinion describes its decision as a rejection of the invitation to extend University Plaza, which applies to INDEMNITY agreements, to exculpatory clauses. Indemnity for one's own negligence still needs clear and unequivocal terms: under University Plaza Shopping Center, Inc. v. Stewart and Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., contracts of indemnification which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida and will be enforced only if they express that intent in clear and unequivocal terms. The opinion also says it does not make general release language per se effective. Because only two justices joined that reasoning, how clear a release must be remains, beyond the result, a question on which district-court law is the working guide. And § 558.0035 is not a drafting trick but a FIVE-condition safe harbour, every one of them required: the contract must run between the business entity and the claimant (or another entity serving the claimant), must not name the individual who will perform the work, must carry the oversized prominent statement, the entity must maintain any professional liability insurance the contract requires, and the damages must be solely economic. Drafting only the prominent statement buys nothing. The safe harbour is also untested: no Florida decision at any level was found mentioning § 558.0035, on either the run-together or the spaced spelling of the section number, so there is no case law on how any of the five conditions is applied.
7 authorities
The words that state the rule
PER CURIAM. This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts.
The words that state the rule
For the foregoing reasons, we conclude that the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action. Accordingly, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). It is so ordered. LABARGA, C.J., and PERRY, J., concur. CANADY and POLSTON, JJ., concur in result. LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.
The words that state the rule
Despite our conclusion, however, we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions.
The words that state the rule
Accordingly, our decision is merely a rejection of the Sanislos’ invitation to extend University Plaza, which applies to indemnity agreements, to exculpatory clauses.
- statuteFla. Stat. § 558.0035enactment date not established
The words that state the rule
(1) A design professional employed by a business entity or an agent of the business entity is not individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract if:(a) The contract is made between the business entity and a claimant or with another entity for the provision of professional services to the claimant; (b) The contract does not name as a party to the contract the individual employee or agent who will perform the professional services; (c) The contract includes a prominent statement, in uppercase font that is at least 5 point sizes larger than the rest of the text, that, pursuant to this section, an individual employee or agent may not be held individually liable for negligence; (d) The business entity maintains any professional liability insurance required under the contract; and (e) Any damages are solely economic in nature and the damages do not extend to personal injuries or property not subject to the contract.
- statuteFla. Stat. § 558.0035enactment date not established
The words that state the rule
(2) As used in this section, the term “business entity” means any corporation, limited liability company, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.
- case374 So. 2d 487Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co.Fla.decided 1979-07-05read it at the source ↗
The words that state the rule
With respect to the possibility of contractual indemnity, we take note that contracts of indemnification which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964). Such contracts will be enforced only if they express an intent to indemnify against the indemnitee's own wrongful acts in clear and unequivocal terms. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973).
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.