Walgreen Company v. Monica Pappalardo and Dynaserv Florida LLC

SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

Case No. 6D2023-3091
Lower Tribunal No. 2018-CA-002917-O
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WALGREEN COMPANY,

Appellant,
v.

MONICA PAPPALARDO and DYNASERV FLORIDA, LLC,

Appellees.
_____________________________

Appeal from the Circuit Court for Orange County.
Jeffrey L. Ashton, Judge.

June 5, 2026

WHITE, J.

This is an appeal from final judgments based on orders granting motions for

summary judgment in favor of Dynaserv Florida, LLC (“Dynaserv”), and against

Monica Pappalardo (“Plaintiff”), and Walgreen Company (“Walgreen”). Because

the trial court erred by granting Dynaserv’s motion for partial summary judgment on

Walgreen’s crossclaim for contractual indemnity alleged in Count V (the “Count V

Crossclaim”), we reverse the final judgment and order against Walgreen, as to the
Count V Crossclaim only. In all other respects, we affirm the final judgments and

orders without further discussion.

Background

Plaintiff sued Walgreen and Dynaserv. She alleged that, while walking on the

sidewalk on the side of Walgreen’s store, she tripped and fell due to a raised, uneven

portion of sidewalk and suffered severe bodily injuries. Plaintiff asserted negligence

claims against Walgreen and Dynaserv. As to Walgreen, she alleged Walgreen

breached its non-delegable duties to her as an invitee, resulting in her falling and

suffering injuries. In Plaintiff’s claim against Dynaserv, she alleged that Dynaserv

had duties to her because of Dynaserv’s contractual obligations to Walgreen, and

Dynaserv’s breach of those duties caused her to fall and suffer injuries.

In turn, Walgreen asserted several crossclaims against Dynaserv. The Count

V Crossclaim alleged that Walgreen had a contract with Dynaserv that required the

latter to: conduct weekly inspections of the premises outside Walgreen’s store; notify

Walgreen of noticeable defects on those premises within 24 hours of completing

work; report immediately to Walgreen health or safety issues on those premises; and

notify Walgreen of noticeable maintenance problems or hazards on those premises.

Walgreen further alleged that Dynaserv did not notify it of any dangerous conditions

related to potential trip hazards or raised sections of the sidewalk as a trip hazard,

before Plaintiff allegedly tripped and fell.

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The Count V Crossclaim also asserted that Walgreen’s contract with Dynaserv

contained the following provision:

10. INDEMNIFICATION.

10.1 Indemnification by Service Provider.1

(a) General Indemnity. Service Provider will indemnify, defend and
hold harmless (collectively, “indemnification” or “indemnify”)
Walgreen, its Affiliates, and their respective officers, directors,
employees and agents (“Walgreen Indemnified Parties”) from and
against any and all demands, judgments (including applicable pre-
judgment and post-judgment interest, if any), awards, losses, damages,
costs, penalties, expenses, claims and liabilities, including reasonable
attorney’s fees, witness fees and court costs, and any other losses and
liabilities of any kind or nature whatsoever (collectively, “Damages”)
of, or awarded to, or settled with third parties in third-party claims or
actions, and the costs of Walgreen in enforcing this indemnification
obligation, in each case arising out of any of the following: (i) the
negligent acts or omissions, or intentional misconduct, of Service
Provider, its subcontractor or the Service Provider Personnel under the
Agreement; (ii) any breach by Service Provider of the Agreement; and
(iii) claims arising out of or relating to the Agreement brought by
Service Provider personnel, contractors, subcontractors, or Service
Provider’s subcontractor personnel. Additionally, Service Provider will
indemnify, defend and hold harmless the Walgreen Indemnified Parties
from and against any and all Damages, and the costs of Walgreen in
enforcing this indemnification obligation, arising out of or in
connection with bodily harm, death and/or loss and damage to real and
tangible personal property caused by the negligence or willful
misconduct of Service Provider or any Service Provider Affiliate or
subcontractor, or by their respective personnel.

Walgreen claimed it demanded that Dynaserv defend it, indemnify it and hold it

harmless from Plaintiff’s claims but Dynaserv refused to do so.

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The contract designated Dynaserv as “Service Provider.”
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After Dynaserv successfully moved for summary judgment against Plaintiff,

it filed a motion for partial summary judgment on the Count V Crossclaim. In the

motion, Dynaserv did not dispute the facts or contractual provisions alleged in the

Count V Crossclaim. Instead, it argued that it was entitled to partial summary

judgment because Walgreen was seeking contractual indemnity for its own

negligence. Although Dynaserv acknowledged that Walgreen could seek contractual

indemnification for its vicarious liability for Dynaserv’s negligence, such a claim

was precluded because Plaintiff sued Walgreen for allegedly breaching a non-

delegable duty, not for vicarious liability. Dynaserv further argued that the trial court

had previously held that Dynaserv had no liability to Plaintiff because it had no duty

to her.

Walgreen responded that Dynaserv was mistaken in its belief that Walgreen

was seeking indemnification for its own negligence. Rather, Walgreen was seeking

contractual indemnity for Dynaserv’s negligent failure to comply with its contractual

obligation to notify Walgreen of the potential hazard that allegedly caused Plaintiff’s

fall. Walgreen further asserted it could seek contractual indemnity, despite

Plaintiff’s allegations that Walgreen violated a non-delegable duty, because those

allegations were not controlling and could not vitiate its indemnification claim.

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The trial court granted Dynaserv’s motion. The order stated that Walgreen

could only seek indemnification for liability incurred due to Dynaserv’s negligence.2

The trial court did not address the allegations of the Count V Crossclaim, or

Walgreen’s argument, regarding contractual indemnity based on Dynaserv’s

negligent noncompliance with its contractual obligation to notify Walgreen of the

potential hazard Plaintiff alleged had caused her fall. Instead, the trial court declared

that, since Dynaserv owed no duty to Plaintiff, Dynaserv owed no contractual

indemnity to Walgreen because such claim was based on Plaintiff’s claim of

Dynaserv’s negligence.

Later, the trial court entered summary judgment orders on Walgreen’s other

crossclaims, then entered two final judgments, one against Plaintiff and one against

Walgreen. This timely appeal followed.

Analysis

We review a grant of summary judgment de novo. Pial Holdings, LTD v.

Riverfront Plaza, LLC, 379 So. 3d 547, 550 (Fla. 6th DCA 2024). The Florida

Supreme Court has aligned Florida’s summary judgment standard with the federal

summary judgment standard. See In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d

72, 73–74 (Fla. 2021). “The court shall grant summary judgment if the movant

2
Walgreen concedes on appeal, as it did in trial court, that the contract does
not require Dynaserv to indemnify Walgreen for Walgreen’s negligence.
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shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a) (2022).

Under the rule, a movant who does not bear the burden of proof at trial may

meet its initial burden of production in two ways: “[I]f the nonmoving party must

prove X to prevail [at trial], the moving party at summary judgment can either

produce evidence that X is not so or point out that the nonmoving party lacks the

evidence to prove X.” In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75

(quoting Bedford v. Doe, 880 F.3d 993, 996–97 (8th Cir. 2018)). Unless the movant

satisfies its initial burden, the nonmovant is not required to submit evidence. See

Pial Holdings, 379 So. 3d at 550–51; Bedford, 880 F.3d at 997.

We also review a trial court’s interpretation of a contract de novo. Pial

Holdings, 379 So. 3d at 551. “Indemnity contracts are subject to the general rules

of contractual construction; thus, an indemnity contract must be construed based on

the intentions of the parties.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.

2d 638, 643 (Fla. 1999).

Where a contract’s terms are clear and unambiguous, we must glean the
parties’ intent from the four corners of the document. See Crawford v.
Barker, 64 So. 3d 1246, 1255 (Fla. 2011). Ambiguity exists only when
contractual language “is susceptible to more than one reasonable
interpretation.” Penzer v. Transp. Ins., 29 So. 3d 1000, 1005 (Fla.
2010).

Pial Holdings, 379 So. 3d at 551.

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Walgreen argues that the trial court erred by ignoring both the allegations of

the Count V Crossclaim and its argument opposing summary judgment, then holding

that, since Dynaserv owed no duty to Plaintiff, the Count V Crossclaim was

precluded because that claim was based on Plaintiff’s negligence claim against

Dynaserv. We agree.

Unlike common law indemnity, “contractual indemnity is not concerned with

‘special relationships’ or vicarious, constructive, derivative or technical liability; it

is concerned with the express terms of the agreement to indemnify.” Camp, Dresser

& McKee, Inc. v. Paul N. Howard Co., 853 So. 2d 1072, 1077 (Fla. 5th DCA 2003).

Therefore, the Count V Crossclaim’s validity turns on the terms of the

indemnification provision—whether Dynaserv owed a duty to Plaintiff is irrelevant.

Furthermore, Plaintiff’s allegations in her claim against Walgreen cannot vitiate the

Count V Crossclaim. See Highwoods Props., Inc. v. Millar Elevator Serv. Co., 247

So. 3d 639, 643 (Fla. 1st DCA 2018). This is true despite Plaintiff’s allegations that

Walgreen breached a non-delegable duty. See id.

The indemnification provision in the contract requires Dynaserv to indemnify

Walgreen “from and against any and all demands, judgments[,] . . . awards, losses,

damages, costs, penalties, expenses, claims and liabilities, . . . and any other losses

and liabilities of any kind or nature whatsoever . . . arising out of” Dynaserv’s

“negligent acts or omissions” or its “breach” of the contract. The Count V

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Crossclaim specifically alleged that Dynaserv failed to comply with its contractual

duty to notify Walgreen of the dangerous condition related to the raised section of

the sidewalk that allegedly caused Plaintiff to trip and fall.

In the trial court, Dynaserv had the initial burden to “either produce evidence”

that it did not fail to comply with the contract or “point out that [Walgreen] lacks the

evidence to prove” it failed to comply with the contract. In re Amends. to Fla. R.

Civ. P. 1.510, 317 So. 3d at 75 (quoting Bedford, 880 F.3d at 997). Dynaserv did

neither. Therefore, Walgreen had no obligation to submit evidence supporting the

Count V Crossclaim. See Pial Holdings, 379 So. 3d. at 550–51; Bedford, 880 F.3d

at 997. Given Walgreen’s allegations and the clear, unambiguous language of the

indemnification provision,3 coupled with Dynaserv’s failure to meet its initial

burden, we conclude that Dynaserv was not “entitled to judgment as a matter of law”

on the Count V Crossclaim. Fla. R. Civ. P. 1.510(a).

On appeal, Dynaserv reiterates the same meritless arguments it made in the

trial court, which we have already addressed. Dynaserv also argues that, even if it

failed to notify Walgreen about the raised section of the sidewalk, it has no liability

for contractual indemnity because it had no control over Walgreen’s premises, and

the contract did not require Walgreen to act on any information provided by

3
Dynaserv does not argue that the Count V Crossclaim inaccurately alleges
the terms of its contract with Walgreen, or that the indemnification provision is
unclear or ambiguous.
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Dynaserv. In support of that argument, it cites Cascante v. 50 State Sec. Serv., Inc.,

300 So. 3d 283 (Fla. 3d DCA 2019).

The Cascante court affirmed summary judgment in favor of a security

company, which had a contract with Miami-Dade County, on a negligent security

claim brought by a plaintiff injured in the County’s parking garage. See id. at 284–

85. In that context, the Third District conducted its review and ultimately concluded

that the security company had no tort duty to Plaintiff because the contract did not

displace the County’s duty to protect garage patrons. See id. at 285–88. Obviously,

Cascante is inapposite here because that case had nothing to do with a contractual

indemnity claim. Simply put, a defendant may have no tort duty to a non-party to a

contract but still have a contractual duty to a party to a contract. See Radio Station

WQBA, 731 So. 2d at 643; Camp, Dresser & McKee, Inc., 853 So. 2d at 1077.

Conclusion

For all the foregoing reasons, we reverse the final judgment and order against

Walgreen on the Count V Crossclaim, and remand for further proceedings consistent

with this opinion. Otherwise, we affirm the appealed final judgments and orders.

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

TRAVER, C.J., and MIZE, J., concur.

Peter D. Webster, of Carlton Fields, Tallahassee, and Jeffrey A. Cohen and Paul L.
Nettleton, of Carlton Fields, Miami, for Appellant.

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Charles M-P “Chip” George, of Law Offices Charles M-P George, Coral Gables,
and Christopher W. Wadsworth and Joseph H. Harrington, of Wadsworth, Margrey
& Dixon, Miami, for Appellee, Dynaserv Florida, LLC.

No Appearance for Appellee, Monica Pappalardo.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED

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