                                                                 [DO NOT PUBLISH]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




                                          2
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.

                                                 3
reversible error in the district court’s conclusion that Schindler has no duty to

indemnify MDC or Garcia.

AFFIRMED.




                                          4
