       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

   BLOK BUILDERS, LLC d/b/a IKON BUILDERS, a Florida limited
                      liability company,
                          Appellant,

                                   v.

  PEDRO KATRYNIOK, MASTEC NORTH AMERICA, INC., a Florida
 corporation, and BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a
                        AT&T FLORIDA,
                           Appellees.

                            No. 4D16-1811

                           [January 31, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale Ross, Judge; L.T. Case No. CACE10-43490 (08).

  Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for
appellant.

  Kimberly Kanoff Berman of McIntosh Sawran & Cartaya, P.A., Fort
Lauderdale, and Michael J. Lynott and Crystal L. Arocha of McIntosh
Sawran & Cartaya, P.A., Miami, for appellees MasTec North America, Inc.
and BellSouth Telecommunications, LLC.

WARNER, J.

   Blok Builders, LLC, appeals a final judgment determining that Blok
owes Mastec North America, Inc., and BellSouth Telecommunications,
LLC, contractual indemnity and a defense in a personal injury action, as
well as an award of attorney’s fees. Blok contends that its subcontract
with Mastec, which required Blok to indemnify Mastec for its own
negligence, did not comply with section 725.06, Florida Statutes (2008),
and, thus, its contractual indemnification provisions were unenforceable.
The statute, however, does not apply to the contract in this case.
Therefore, the trial court correctly determined that Blok owed Mastec a
duty to indemnify and defend. The trial court also found that Blok must
indemnify BellSouth, but neither the contract between Blok and Mastec
nor the contract between Mastec and BellSouth requires Blok to indemnify
BellSouth. We therefore reverse the trial court’s final judgment as to
BellSouth, including its award of attorney’s fees.
   BellSouth sought to improve its telecommunications services by
accessing and altering its network in a project called “Lightspeed Project.”
As part of the project, it contracted with Mastec North America, Inc., to
perform all work necessary to provide access to the underground lines
located in neighborhood easements. In turn, Mastec then subcontracted
with Blok Builders (d/b/a Ikon Builders) to perform the excavation work
necessary for BellSouth to access its previously existing underground
utility lines.

   After Blok performed excavation near the driveway in one of the
neighborhoods covered by the project, a homeowner was walking down his
driveway when it suddenly collapsed, causing him to fall and sustain
permanent serious injuries. The homeowner sued Blok for damages due
to his injuries and then amended his complaint to add Mastec and
BellSouth for their own negligence in contributing to the dangerous
condition.

   Mastec and BellSouth crossclaimed against Blok, alleging that Blok
had agreed to contractually indemnify them through the Subcontract
between Blok and Mastec. The contract between Blok and Mastec
contained a provision requiring Blok to indemnify Mastec for its own
negligence:

      16. Indemnification. a) Subcontractor [Blok] agrees to
      indemnify and hold harmless Contractor [Mastec] and its
      directors, officers, employees and agents (collectively the
      “Indemnitees”) and each of them from and against any loss,
      costs, damages, claims, expenses (including attorneys’ fees) or
      liabilities, causes of action, lawsuits, penalties, or demands
      (collectively referred to as “Liabilities”) by reason of any injury
      to or death of any person or damage to or destruction or loss
      of any property arising out of, resulting from, or in connection
      with (i) the performance or nonperformance of the Work
      contemplated by this Agreement which is or is alleged to be
      directly or indirectly caused, in whole or in part, by any act,
      omission, default, negligence (whether active or passive) of
      Subcontractor or its employees, agents or subcontractors,
      regardless of whether it is, or is alleged to be, caused in
      whole or part (whether joint, concurrent, or contributing)
      by any act, omission, default or negligence (whether
      active or passive) of the indemnitees, or any of them . . .
      Said indemnity shall include but not be limited to injury or
      damage which is or is alleged to be caused in whole or in part
      by any act, omission, default or negligence of Subcontractor
      or its employees, agents or subcontractors. (emphasis added).

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         ....
      c) Where not specifically prohibited by law, Subcontractor
      further specifically agrees to indemnify and hold harmless
      the Indemnitees from all Liabilities, by reason of any injury,
      death, or damage to any person or property whatsoever,
      caused by, arising from, incident to, or connected with
      the performance or nonperformance of the work
      contemplated by this Agreement which is, or is alleged to
      be, caused in part (whether joint, concurrent, or
      contributing) or in whole by any act, omission, default, or
      negligence (whether active or passive) of the Indemnitees.
      (emphasis added).

   The contract further required Blok to defend any claim arising out of
the performance of the contract and brought against the Indemnitees, as
well as to pay any costs and attorney’s fees incurred by the Indemnitees
in defending any action or in enforcing the indemnification agreement.

   The agreement between Blok and Mastec incorporated the terms of the
contract between Mastec and BellSouth. That agreement contained a
similar indemnification provision requiring Mastec to indemnify BellSouth:

      Article 9. Indemnity

      The Contractor [Mastec] shall indemnify and hold
      harmless the Company [BellSouth] and its directors,
      officers,   employees       and     agents    (collectively     the
      “Indemnitees”) and each of them from and against any loss,
      costs, damages, claims, expenses (including attorneys’
      fees) or liabilities (collectively referred to as “Liabilities”) by
      reason of any injury to or death of any person or damage to or
      destruction or loss of any property arising out of, resulting
      from, or in connection with (i) the performance or
      nonperformance of the work contemplated by this Contract
      which is or is alleged to be directly or indirectly caused, in
      whole or in part, by any act, omission, default, negligence
      (whether active or passive) of Contractor or its employees,
      agents or subcontractors, regardless of whether it is, or is
      alleged to be, caused in whole or part (whether joint,
      concurrent or contributing) by any act, omission, default or
      negligence (whether active or passive) of the Indemnitees, or
      any of them . . . . (emphasis added).

   Blok contended that the indemnification provisions were invalid
because the contract did not comply with section 725.06, Florida Statutes

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(2008). The statute applies to certain construction contracts which
obligate the indemnitor to indemnify the indemnitee for its own negligence.
Such a contract is unenforceable unless it contains a monetary limitation
on the extent of such liability. Blok contended that because there was no
such limitation in the Blok/Mastec contract, the indemnification provision
was void and unenforceable. Mastec and BellSouth argued that section
725.06 did not apply to this contract, and in any case, a monetary
limitation was contained in the BellSouth/Mastec contract which, through
an incorporation clause, applied to the Blok/Mastec contract.

   Both sides moved for summary judgment. Ultimately, the trial court
entered summary judgment in favor of Mastec and BellSouth, concluding
that the contracts required Blok to indemnify and defend both Mastec and
BellSouth in the underlying personal injury lawsuit. It also entered an
award of attorneys’ fees to both Mastec and BellSouth. Blok appeals this
final judgment.

    We review de novo a summary judgment. Overseas Inv. Group v. Wall
St. Electronica, Inc., 181 So. 3d 1288, 1291 (Fla. 4th DCA 2016) (citing
Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000)). De novo review applies to the interpretation of a contract. See
Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc.,
133 So. 3d 1108, 1110 (Fla. 3d DCA 2014). It also applies to the
interpretation of a statute. See Toler v. Bank of America, Nat’l Ass’n, 78
So. 3d 699, 701-02 (Fla. 4th DCA 2012).

    Blok argues that section 725.06, Florida Statutes, applies to its
contract, and because the contract contains no monetary limitation on its
obligation to indemnify Mastec for Mastec’s own negligence, the
indemnification provision is unenforceable. Based upon the plain wording
of the statute, however, we conclude that section 725.06 does not apply to
this contract.

   Section 725.06(1) covers contracts for construction as follows:

      Any portion of any agreement or contract for or in connection
      with, or any guarantee of or in connection with, any
      construction, alteration, repair, or demolition of a
      building, structure, appurtenance, or appliance, including
      moving and excavating associated therewith . . . shall be
      void and unenforceable unless the contract contains a
      monetary limitation on the extent of the indemnification that
      bears a reasonable commercial relationship to the contract
      and is part of the project specifications or bid documents, if
      any. (emphasis added).

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Where a statute is clear and unambiguous, the words of the statute must
be given their plain and obvious meaning. Holly v. Auld, 450 So. 2d 217,
219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141,
1144, 137 So. 157, 159 (1931)). Further, a court is “without power to
construe an unambiguous statute in a way which would extend, modify,
or limit, its express terms or its reasonable and obvious implications. To
do so would be an abrogation of legislative power.” Id. (emphasis removed)
(quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d
777, 778 (Fla. 1st DCA 1968)).

   Blok contends that because it entered into a contract for excavation,
the statute governs. Excavation, however, must be associated with the
“construction, alteration, repair or demolition of a building, structure,
appurtenance, or appliance . . . .” § 725.06(1), Fla. Stat. (2008)
(emphasis added).      The project in this case did not involve such
construction. The master contract between BellSouth and Mastec involved
the laying and maintenance of utility lines. The contract does not involve
a building, structure, appurtenance, 1 or appliance. Therefore, given its
plain and ordinary meaning, the statute does not govern the contractual
provisions.

    Blok cites several cases in which section 725.06 has been applied, but
all involve either the construction of a building or structure. It relies most
heavily on Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 721 So. 2d
1254 (Fla. 5th DCA 1998), in which the statute was applied to the
construction of concrete tunnels. But it is clear from the opinion that the
court considered the concrete tunnel to be a “structure,” and thus, the
statute was applicable. Similarly, in Griswold Ready Mix Concrete, Inc. v.
Reddick, 134 So. 3d 985, 986 (Fla. 1st DCA 2012), the statute was applied
to a contract for a lease of a concrete pump truck, as the truck was being
used in the laying of a foundation of a building, which type of contract is
covered by the statute.

   Mastec suggests that section 725.06 does not apply to utility contracts,
which are quasi-governmental. In particular, it cites to Church & Tower of
Fla., Inc. v. BellSouth Telecomm., Inc., 936 So. 2d 40 (Fla. 3d DCA 2006),
which involved a contract with a similar indemnity provision as in this
case. The contract in question provided for the installation of utility poles,
and the court enforced the indemnity provision but never addressed
section 725.06. Mastec and BellSouth suggest that this is because it is a

1 “Appurtenances are things belonging to another thing as principal and which
pass as incident to the principal thing.” Chackal v. Staples, 991 So. 2d 949, 955
(Fla. 4th DCA 2008) (quoting Trask v. Moore, 24 Cal. 2d 365, 368, 149 P.2d 854,
856 (1944)).
                                       5
utility contract, and section 725.06 does not apply to utility contracts. We
instead conclude that the statute would not have applied in Church &
Tower, because the installation of utility poles does not involve a building,
structure, appurtenance or appliance. It is not the fact that the contract
involved a utility, but that it did not involve a building or structure, which
made the statute inapplicable. If the utility contract had called for the
construction of a structure, the statute would have been applicable. In
this case, no building or structure was involved, and the court correctly
granted summary judgment to Mastec.

    As to BellSouth, we conclude that the court erred in determining that
Blok owed a duty of indemnity and a duty to defend BellSouth. Under the
Blok/Mastec contract, Blok agreed to indemnify Mastec and its directors,
officers, and agents. Nowhere does it require Blok to indemnify BellSouth.
And, although the subcontract incorporated the provisions of the
BellSouth/Mastec contract, that contractual indemnification provision
required that Mastec, not its subcontractors, indemnify BellSouth. Where
a contract is clear and unambiguous, “courts cannot indulge in
construction or interpretation of its plain meaning.” BMW of North
America, Inc. v. Krathen, 471 So. 2d 585, 587 (Fla. 4th DCA 1985) (quoting
Hurt v. Leatherby Ins. Co., 380 So. 2d 432 (Fla. 1980)). And when a
contract is silent on a matter, the court cannot impose contractual rights
and duties under the guise of construction. Id. Thus, the court erred in
declaring that Blok had a duty to indemnify and to defend BellSouth.

   Because Blok had no contractual duty to indemnify or defend Bell
South, we also reverse the award of attorney’s fees and costs as to
BellSouth. We find no merit in Blok’s challenge to the award of attorney’s
fees to Mastec.

   For the foregoing reasons, we affirm the trial court’s final judgment
determining Blok’s duty to indemnify and defend Mastec and the award of
attorney’s fees to Mastec. We reverse the final judgment as to BellSouth
in all respects.

LEVINE, J., and BUCHANAN, LAURIE E., Associate Judge, concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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