Topvalco Inc. v. Wolff—(Per Curiam Warner, Ciklin, and Forst; 4DCA; 2/15/23).
This was a personal injury law case where the plaintiff sued a property owner and a property manager after he fell in a hole in a parking lot. The landowner filed a cross-claim against the property owner, arguing that both contractual and common law indemnity places full liability on the property manager.
The property manager moved to dismiss the counterclaims, and the trial court agreed, finding that the landowner had a nondelegable duty
The property owner appealed, arguing that it didn’t matter if they had a duty to an invitee; they could still enter into contracts with a property manager to indemnity them.
The DCA agreed that the trial court was wrong and that the nondelegable duty does not prevent indemnification. That said, the DCA affirmed because the issue was not preserved for review. Without getting into what was actually argued in the trial court, the DCA held that the error appeared for the first time on the face of the order granting the motion to dismiss, but the property owner did not move for rehearing or otherwise timely bring the error to the trial court’s attention. Fortunately for the lawyer involved and his or her malpractice carrier, the DCA also noted that it would have affirmed on the merits because the specific contract language at issue would not have successfully indemnified the landowner.