[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-15158 MARCH 2, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cv-23543-JLK
ROSA GARCIA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
SCHINDLER ELEVATOR CORPORATION,
a Delaware Corporation,
lllllllllllllllllllllllllllllllllllllll lDefendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 2, 2012)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Rosa Garcia appeals from an adverse summary judgment on her claim that
Schindler Elevator Corporation (“Schindler”), breached its indemnification
agreement contained within its service and maintenance contract with Miami-Dade
County (“MDC”). Garcia’s claim against Schindler originates from a separate
negligence action she brought solely against MDC for injuries she allegedly
sustained while riding an escalator at the Miami International Airport. The
escalator is owned and operated by MDC, which contracted with Schindler for the
escalator’s maintenance. Garcia and MDC negotiated a settlement whereby Garcia
would receive $95,400 on her negligence claim against MDC in a final consent
judgment and MDC assigned to Garcia all of its rights and remedies against
Schindler.
Garcia argues that the district court erred in granting summary judgment in
Schindler’s favor in this lawsuit because there are disputed issues of fact regarding
whether Schindler wrongfully refused to defend MDC in the underlying
negligence action. The district court concluded that Schindler did not wrongfully
refuse to defend MDC because the undisputed facts established that Schindler
never made a determination in the first instance whether to defend. The district
court explained that the correspondence from Schindler to MDC indicated that it
had not made a decision one way or the other about its duty to defend.
Additionally, Schindler requested MDC to provide various specified documents
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which were necessary for it to determine whether MDC was entitled to a defense.1
Because MDC never provided Schindler with the documents, the district court
concluded that Schindler was entitled to summary judgment on Garcia’s claim that
Schindler wrongfully refused to defend MDC. We find no reversible error in this
determination.2
Garcia also argues that the district court erred in concluding as a matter of
law that, under the plain language of Schindler’s and MDC’s service and
maintenance contract and under the facts of this case, Schindler has no duty to
indemnify MDC or Garcia. The district court noted that Schindler’s duty to
indemnify is limited to claims that arise from, relate to, or result from its failure to
perform service or maintenance under the terms of the contract. Because Garcia
never alleged in her underlying negligence action that Schindler failed to service
or maintain the escalator in violation of the service agreement, we find no
1
Garcia argues that there is a dispute of fact about whether MDC ever received the letter
in which Schindler requested the documentation because MDC’s counsel did not specifically
recall receiving the letter. The letter is part of this evidentiary record and was an exhibit to the
deposition of MDC’s counsel, who never denied receipt. Moreover, the letter was addressed
specifically to MDC’s counsel at his correct mailing address, which he confirmed during his
deposition. Simply because MDC’s counsel could not remember receiving the letter does not
create a dispute of fact that the letter was mailed or received.
2
Garcia also argues that Schindler is liable for the consent judgment under a Coblentz
agreement, which is valid only where the insurer wrongfully refuses to defend. We find no
reversible error in the district court’s rejection of this claim where the district court already
concluded that Schindler did not wrongfully refuse to defend MDC.
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reversible error in the district court’s conclusion that Schindler has no duty to
indemnify MDC or Garcia.
AFFIRMED.
4