HCBA Lawyer Magazine Vol. 28, No. 5 | Page 25

a cLoser Look at section 725.06, fLoriDa statutes
Construction law Section
Chairs: Ryan Baya - Mills Paskert Divers & Derek Kantaskas - Carlton Fields
A
© Can Stock Photo / iqoncept
s virtually every
construction
lawyer can attest,
indemnification
provisions in construction contracts
often prove to be a tremendous
source of contention. Too often,
lawyers evaluating the applicability
of Florida’s Anti-Indemnification
Statute, section 725.06, Florida
Statutes, tend to hyperfocus on
the nature of the indemnification
sought and whether the contract
contains the requisite monetary
limitation for the provision to be
enforceable. The obvious danger
of such hyperfocus includes
overlooking the rest of the statutory
language, possibly to the detriment
of your client.
To that end, a recent decision
by the Fourth District Court of
Appeals should have every
construction lawyer, especially
those handling utility contracts,
taking a closer look at not only the
language of the indemnification
provision itself, but also the scope
of work that is the subject of the
contract. In Blok Builders, LLC v.
Katryniok, 2018 WL 637399 (Fla.
4th DCA 2018), utility owner
BellSouth Telecommunications,
LLC hired contractor Mastec
North America, Inc. to perform
a sweeping utility improvement
campaign. Mastec, in turn,
retained Blok Builders, LLC to
perform the excavation and site
M AY - J U N E 2 0 1 8
work for the
section 725.06(1),
campaign.
which limits
As with most
application of
construction
the statute
contracts, the
to contracts in
Mastec/Blok
connection with
subcontract
any construction,
contained
alteration, repair,
a provision
or demolition
requiring Blok
of a building,
to indemnify
structure,
as virtually every
Mastec for
appurtenance,
construction lawyer can
an y losses,
or appliance.”
including
Id. at *3 (quoting
attest, indemnification
those caused
725.06(1), Fla
provisions in construction
in whole or
Stat.)) The court
in part by any
went on to hold
contracts often prove
act, omission,
that because
to be a tremendous
default, or
the scope of the
negligence
prime contract
source of contention.
of Mastec.
included laying
During the
and maintaining
campaign, a
utility lines and
homeowner was seriously injured
did not involve a building, structure,
when his driveway suddenly
appurtenance, or appliance, section
collapsed due to Blok’s nearby
725.06 did not apply to the
excavation work. A lawsuit
indemnification provision at issue.
followed, and Mastec looked to
It is also worth noting that the
Blok for indemnity. Blok refused,
court, in its reasoning, discussed
contending that the indemnity
a prior opinion, noting its same
provision was subject to section
analysis would apply to the
725.06 and therefore invalid
installation of utility poles. Id. at *4.
and unenforceable because the
Although the appeal was
Mastec/Blok subcontract did not
undoubtedly a painful (and
contain the requisite monetary
expensive) experience for Blok,
limitation. Mastec countered,
it serves as a valuable lesson and
arguing that section 725.06 did
reminder for construction law
not apply, and even if it did,
practitioners: Be wary of not only
the Mastec/Blok subcontract
the nature of the indemnification
incorporated the prime contract,
sought by the provision but also
which contained a monetary
the scope of
limitation. Cross motions for
work of the
summary judgment were filed,
underlying
and the trial Court ultimately
project.
ruled in favor of Mastec.
On appeal, the Fourth District
never reached the issue of whether
Author:
a monetary limitation was present
William M.
and instead focused on the plain
Woods - Shutts
and unambiguous language of
& Bowen, LLP
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