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Filing # 132103591 E-Filed 08/05/2021 12:24:22 PM
IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
EVANSTON INSURANCE COMPANY:
a/s/o Boca Aircraft Maintenance, LLC 7 CIVIL ACTION
No.: 2021CA002991
Plaintiff,
v.
SIGNATURE FLIGHT SUPPORT, LLC
fik/a SIGNATURE FLIGHT SUPPORT
CORPORATION, CINTAS CORP.,
CINTAS CORPORATION NO. 2, :
CINTAS CORPORATE SERVICES, INC., :
And LIFELINE FIRE PROTECTION, INC.
Nate donee
Deciaais.
PLAINTIFF’S RESPONSE IN OPPOSITION TO SIGNATURE FLIGHT SUPPORT.
LLC’S MOTION FOR JUDGMENT ON THE PLEADINGS
NOW COMES Plaintiff, Evanston Insurance Company as subrogee of Boca Aircraft
Maintenance, LLC, by and through undersioned counsel, and hereby submits the following
Response in Opposition to Defendant, Signature Flight Support, LLC f/k/a Signature Flight
Support Corporation’s Motion for Judgment on the Pleadings.
I. BACKGROUND
On or about July 1, 2009, Plaintiff's Insured, Boca Aircraft Maintenance LLC (“Boca
Aircraft”), entered into a lease agreement with Premier Aviation of Boca Raton, LLC for the
rental of an airline hangar located at 3300 Airport Road, Hangar 2, Suite 121, Boca Raton,
Florida 33431 (“Hangar 2”). (Compl. 11). At all times relevant hereto and pursuant to the lease
agreement between Boca Aircraft and Premier Aviation of Boca Raton, Boca Aircraft occupied
Hangar 2. (Compl. { 14).
On January 13, 2015, Boca Aircraft executed a sublease with Signature Flight Support,
neat.
tr Ra N (At AN HC 4 OF a nt at tata
LLL (Ue Lease J. (LONIpL 7] 19). VeLenaail, oignaure rigol, operaicu, Manayea, Mamuinea,
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED NaINEINNA 49.94.99 DNA
Pty. PAL DLA VUUINE TT, PL, VUOL II mDnNUeey, ULLIAN, YUorUiZue! 12.222 Fitand controlled the activities in Hangar 2. (Compl. § 15). Prior to April 13, 2017, Defendant,
Signature Flight, retained Defendant, Cintas, to inspect, maintain, service, and/or repair the fire
suppression system in Hangar 2. (Compl. § 16). Cintas, in turn, retained Defendant, Lifeline, as
a subcontractor to inspect, maintain, service, and/or repair the fire suppression system in Hangar
2. (Compl. § 17).
Prior to April 13, 2017, the City of Boca Raton Fire Rescue Services responded to an alarm
at Hangar 2, which was set off by the fire suppression system. (Compl. § 19). The City of Boca
Raton Fire Rescue Services subsequently conducted an inspection of the fire suppression system in
Hangar 2 and determined that the system was leaking and not operating properly. (Compl. { 20).
Thus, on April 13, 2017, the City of Boca Raton tagged Hangar 2 as off limits until the necessary
repairs were made to the fire suppression system. (Compl. { 21). Beginning on April 13, 2017,
Boca Aircraft was not permitted to re-enter and utilize Hangar 2 until June 22, 2017 (“the
Incident”). (Compl. { 22). During the time period from April 13, 2017 to June 22, 2017,
Plaintiff's Insured suffered business interruption and certain other losses in the amount of
$256,750.57. (Compl. § 24).
As a direct and proximate result of the Incident and resulting damages, and in accordance
with the terms and conditions of the policy of insurance between Boca Aircraft and Evanston,
Plaintiff issued payments totaling $256,750.57 to or on behalf of its insured. (Compl. § 25).
Thereafter, on March 4, 2021, Plaintiff, Evanston, instituted the present action in Palm Beach
County via the filing of a Civil Action Complaint. Plaintiff brings two counts against Signature
Flight, including Negligence and Breach of Contract, as Plaintiff alleges that the Incident was
caused by the negligence, carelessness, negligent acts, and/or omissions of Defendant, Signature
We (At any
rugnt. (Compl. ¥j 29).For the reasons set forth below, Plaintiff respectfully requests that Signature Flight’s
Motion for Judgment on the Pleadings be denied as a matter of law.
Il. LEGAL STANDARD
“A motion for judgment on the pleadings pursuant to Florida Rule of Civil Procedure
1.140(c) is a very limited procedural device.” Ray v. Elks Lodge No. 1870 of Stuart, 649 So. 2d
292, 293 (Fla. 4th DCA 1995). Judgment on the pleadings may be granted only if, on the facts
as so admitted, the moving party is clearly entitled to judgment. Taylor v. Hanlex Dev., LLC,
274 So. 3d 512, 513 (Fla. Sth DCA 2019); Ray, 649 So. 2d at 293. It is improper for a trial court
to enter judgment on the pleadings where factual questions remain. Hart v. Hart, 629 So. 2d
1073, 1074 (Fla. 2d DCA 1994); Turner v. Turner, 599 So. 2d 765, 766 (Fla. 5th DCA 1992).
On a motion for judgment on the pleadings, all material allegations of the opposing party's
pleading are to be taken as true, and all those of the movant which have been denied are taken as
false. Krieger v. Ocean Props., Ltd., 387 So. 2d 1012, 1013 (Fla. 4th DCA 1980). Pleadings are
to be liberally construed and should not be dismissed unless “it appears to a certainty that
plaintiff is entitled to no relief under any state of facts which could be proved in support of the
claim.” Ellison v. Ft. Lauderdale, i75 So. 2d 198, 200 (Fia. 1965) (quoting Voiume 2, Moore's
Federal Practice, 2d Ed., § 12.08, p. 2244-2245).
Tl. LEGAL ARGUMENT
For the following reasons, Defendant, Signature Flight, is not entitled to judgment as a
matter of law:
A. Provisions in Lease Agreements are Void and Unenforceable to the Extent they
Purport to Limit or Preclude Any Liability of Landlord Arising under Law
Exculpatory clauses are disfavored and will be strictly construed against the party
claiming to be relieved of liability. Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2dDCA 1990); Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 634 (Fla. Ist
DCA 1991). While exculpatory clauses that purport to release a party from liability for its own
negligence are disfavored, these clauses are enforceable where “the language unambiguously
demonstrates a clear and understandable intention to be relieved from liability so that an
ordinary and knowledgeable person will know what he or she is contracting away.” Sanislo v.
Give Kids the World, Inc., 157 So. 3d 256, 271 (Fla. 2015); see Hertz Corp. v. David Klein Mfg.,
Inc., 636 So. 2d 189, 191 (Fla. 34 DCA 1994) (exculpatory clause failed because “it does not
clearly express the precise acts for which [defendant] seeks to avoid liability”).
However, in the landlord/tenant context, Florida courts recognize an exemption to
exculpatory clauses. A provision in a rental agreement is void and unenforceable to the extent
that it purports to limit or preclude any liability of the landlord to the tenant . . . arising under
law. Fla. Stat. Ann. § 83.47 (1)(b). If such a void and unenforceable provision is included in a
rental agreement entered into, extended, or renewed after the effective date of this part and either
party suffers actual damages as a result of the inclusion, the aggrieved party may recover those
damages sustained after the effective date of this part. Fla. Stat. Ann. § 83.47 (2).
Accordingiy, a landiord is not permitted to exempt himself from responsibility for
damage resulting from the landlord’s negligence if such an exemption effectively immunizes the
landlord from liability for breach of a positive statutory duty to protect person or property of the
tenant or the public generally, where violation of such duty constitutes negligence per se. Rose
v. ADT Sec. Servs., Inc., 989 So.2d 1244, 1249 (Fla. Ist DCA 2008) (citing John’s Pass Seafood
Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979); see Loewe v. Seagate Homes, Inc., 987 So.2d
758, 760 (Fla. Sth DCA 2008) (a release or exculpatory clause that attempts to prospectively
inonlate a nasty fen Hahilit, fae winloting 9 ctatite av aedinanne anantad ta neatant tha anhlia jo
inSuiave @ parry wom wWavuiry 101 Vidwaung a Stave OF Oraiiance Cnaciea tG proce uie Puc iS.generally unenforceable as against public policy); Voice Stream Wireless Corp. v. US.
Comme’n, Inc., 912 So.2d 34, 38 (Fla. 4th DCA 2005) (“a party cannot waive liability imposed
by statutory provisions that are intended to protect both an individual and the public because to
do so would be contrary to public policy”); Holt v. O'Brien Imports of Fort Myers, Inc., 862
So.2d 87, 89 (Fla. 2d DCA 2003) (“[A]n individual cannot waive the protection of a statute that
is designed to protect both the public and the individual”); see also, 11 Fla. Jur.2d Contracts §
126 (“[W]here public policy would be frustrated by permitting the enforcement of an
exculpatory clause that effectively immunizes a party from liability from breach of a positive
statutory duty to protect the well-being of others, the exculpatory clause will not be enforced.”).
“In Florida, the violation of a fire code is considered to be negligence per se.” John’s
Pass Seafood Co., 369 So.2d at 618 (citing Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla.
3d DCA 1975); see Del Risco v. Indus. Affiliates, Ltd., 556 So. 2d 1148, 1149 (Fla. 3d DCA
1990) (“The violation of a fire safety provision of a county or municipal code constitutes
negligence per se, whether found in a Fire Code or the South Florida Building Code.”).
In the seminal case of John’s Pass Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA
1979), the District Court ot Appeal ot Fiorida, Second District, addressed the question ot
whether a commercial lessor can exonerate himself from liability to his lessee for failure to
comply with a fire code mandated by municipal ordinance. Id. at 617. In John’s Pass Seafood
Co., the plaintiff/lessee rented a slip at defendant/lessor’s dock to moor his fishing boat. One
night a fire occurred on another boat and spread to the plaintiff’s boat. Jd. The plaintiff sued the
defendant for damage to his boat for failing to provide fire extinguishers and other firefighting
equipment pursuant to municipal code. /d. As an affirmative defense, the defendant pled the
avictanne af a cianad anraamant in whinh the nlointiff neared ta hald the dafandant harmless
exisence Gr a SigneG agiccimein i Wien ule Praia agreca wo WOiG ule GcicnGant Warmnuessfrom all liability occasioned by the use of the dock, even if the harm was caused by the
defendant’s negligence. Jd. Upon grounds of public policy, the trial court refused to permit the
lease agreement to be introduced into evidence at trial. Jd. Subsequently, the jury returned a
verdict for the plaintiff. Jd.
In affirming the trial court’s decision, the District Court of Appeal of Florida, Second
District, held that the exculpatory clause in the lease agreement between the plaintiff and
defendant was ineffective and could not immunize the defendant from liability to the plaintiff for
the defendant’s failure to comply with a fire code mandated by municipal ordinance, in light of
the fact that such violation constituted negligence per se. Id. at 618. The District Court of
Appeal reasoned that “the public policy of this state would be frustrated by permitting
enforcement of exculpatory clauses of this nature as they relate to statutes or ordinances the very
purpose of which is to insure the safety of the persons inhabiting the leased premises.” Id.
B. The Subrogation Waiver in the Lease is Void and Unenforceable
In the present case as in John’s Pass Seafood Co., Plaintiff alleges that Defendant,
Signature Flight, as landlord of Hangar 2, violated multiple fire and safety codes causing
damages to Plaintiff's Insured. Snecifically, Plaintiff alleges that Signature Flight violated
Sections 13.1.7 and 13.1.8 of the 5" Edition (2014) of the Florida Fire Prevention Code and the
Boca Raton Code of Ordinances by failing to replace the broken tank diaphragm concentrate
vent line of the fire suppression system. (Comp. fff 29 & 39) (Plaintiff’s Reply to Signature
Flight’s Affirmative Defenses). Plaintiff further alleges that Defendant, Signature Flight, had a
non-delegable duty to comply with said fire codes by ensuring that the fire suppression system
was fully operational. (Comp. ff] 15, 28 & 38) (Plaintiffs Reply to Signature Flight’s
Affirmative Defenses). As articulated in John’s Pass Seafood Co., violation of said fire andsafety codes constitutes negligence per se and thus, the subrogation waiver in the Lease is
ineffective. John’s Pass Seafood Co., 369 So.2d at 618.
In support of its argument that the subrogation waiver bars Plaintiffs claims against
Signature Flight, Defendant relies upon Fairchild v. W. O. Taylor Commercial Refrigeration &
Elec. Co., 403 So. 2d 1119 (Fla. Sth DCA 1981). However, Fairchild does not involve a
landlord/tenant relationship and the plaintiff in Fairchild did not allege that the defendant
breached a positive statutory duty designed to protect person or property of a tenant, where
violation of such duty constitutes negligence per se; thereby, invalidating the subrogation waiver
contained in the contract. Jd. at 1120. Additionally, the Fairchild court actually reversed the trial
court and held that the subrogation waiver contained in the contract for the installation of an air-
conditioning unit did not bar the plaintiff’s subrogation claim. Jd. at 1120. In so holding, the
Fairchild Court reasoned with respect to the subrogation waiver that “a limitation of liability for
one’s negligent acts will not be inferred unless the intention is expressed in unequivocal terms”
and “if intended by [the defendant] as a perpetual exculpation of liability for his negligence, this
provision in the construction contract was so obscure and indefinite as to be unenforceable.” Id.
(emphasis added).
Here, Signature Flight attempts to insulate itself for liability through the subrogation
waiver contained in section 5 of the Lease. However, as Florida courts have repeatedly
articulated, a landlord cannot waive liability imposed by statutory provisions that are intended to
protect both an individual and the public because to do so would be contrary to public policy.
See John’s Pass Seafood Co., 369 So.2d at 618 & Loewe, 987 So.2d at 760. As such, Signature
Flight cannot exonerate itself from liability for failure to comply with a fire code mandated by
tha Dlacide Tire Dravantian Cada and muniainal ardinanne whisk aanctititas naclinanna nav oo
ule P10riGa Fire a Teveru0n VOUe ale TiumiCipar Graimance, Windia COMsuLuLeS Teg UZeCe per’ se.John’s Pass Seafood Co., 369 So.2d at 618. Accordingly, the subrogation waiver in the Lease is
null and void and Signature Flight’s Motion for Judgment on the Pleadings must fail as a matter
of law.
C. The Waiver Contained in Section 12.01 of the Lease is Null and Void as
Signature Flight’s Violation of the Fire Code is Negligence Per Se
As explained in detail above, an exculpatory clause in a lease agreement is void and
unenforceable to the extent it purports to immunize the lessor from liability for the lessor’s
failure to comply with a fire code, in light of the fact that such violation constitutes negligence
per se. See John’s Pass Seafood Co., 369 So.2d at 618 & Fla. Stat. Ann. § 83.47 (1)(b). As in
John’s Pass Seafood Co., Plaintiff, herein, alleges that Defendant, Signature Flight, as landlord
of Hangar 2, violated Sections 13.1.7 and 13.1.8 of the 5" Edition (2014) of the Florida Fire
Prevention Code and the Boca Raton Code of Ordinances by failing to replace the broken tank
diaphragm concentrate vent line of the fire suppression system. (Comp. §f[ 29 & 39) (Plaintiff’s
Reply to Signature Flight’s Affirmative Defenses). Plaintiff further alleges that Defendant,
Signature Flight, had a non-delegable duty to comply with said fire codes by ensuring that the
fire suppression system was fully operational. (Comp. f¥ 15, 28 & 38) (Plaintiff's Reply to
Signature Flight’s Affirmative Defenses). As articulated in John’s Pass Seafood Co., violation
of said fire and safety codes is negligence per se. John’s Pass Seafood Co., 369 So.2d at 618.
Accordingly, the exculpatory clause in section 12.01 of the Lease is ineffective as
Signature right is not periutiea to exempi itself trom responsioiily io Piamitii’s msured for
damage resulting from Signature Flight’s negligence since such an exemption effectively
immunizes Signature Flight from liability for breach of a positive statutory duty to protect person
or property of the tenant or the public generally, where violation of such duty constitutes
negligence per se. See John’s Pass Seafood Co., 369 So.2d at 618; Fla. Stat. Ann. § 83.47(1)(b). Since the section 12.01 waiver is unenforceable and a motion for judgment on the
pleadings pursuant to Florida Rule of Civil Procedure 1.140(c) is “a very limited procedural
device,” Signature Flight’s Motion for Judgment on the Pleadings must be denied as a matter of
law. Ray, 649 So. 2d at 293.
IV. CONCLUSION
Based upon the foregoing, Plaintiff, Evanston Insurance Company as subrogee of Boca
Aircraft Maintenance LLC, respectfully requests that this Honorable Court enter an order
denying Defendant, Signature Flight Support LLC’s Motion for Judgment on the Pleadings, and
for such other relief as this Honorable Court deems just and proper.
Law Office of Stephen Barker
By: ___/s/ Stephen £. Barker
Ctanhan Rarbar Lonnie
owpaen warner, wsquic
Florida Bar No: 55357
901-A Clint Moore Road
Boca Raton, FL 33486
561-886-8352
slb@stephenbarkerlaw.com
Counsel for Plaintiff
Of Counsel:
Michael F. Wallace, Esquire
Law Offices of Robert A. Stutman, P.C.
20 East Taunton Road, Suite 403
Berlin, New Jersey 08009
Telephone: (856) 767-6800 ext. 14
Facsimile: (856)767-6810
e-mail: wallacem@stutmanlaw.comCERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 5, 2021, the foregoing has been filed through the
Florida eFiling Portal, which will send a true and correct copy to all attorneys of record.
Law Office of Stephen Barker
By: __/s/ Stephen £. Barker
Stephen Barker, Esquire
Florida Bar No: 55357
901-A Clint Moore Road
Boca Raton, FL 33486
561-886-8352
slb@stephenbarkerlaw.com
Counsel for Plaintiff
10
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Filing # 132103591 E-Filed 08/05/2021 12:24:22 PM IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA EVANSTON INSURANCE COMPANY: a/s/o Boca Aircraft Maintenance, LLC 7 CIVIL ACTION No.: 2021CA002991 Plaintiff, v. SIGNATURE FLIGHT SUPPORT, LLC fik/a SIGNATURE FLIGHT SUPPORT CORPORATION, CINTAS CORP., CINTAS CORPORATION NO. 2, : CINTAS CORPORATE SERVICES, INC., : And LIFELINE FIRE PROTECTION, INC. Nate donee Deciaais. PLAINTIFF’S RESPONSE IN OPPOSITION TO SIGNATURE FLIGHT SUPPORT. LLC’S MOTION FOR JUDGMENT ON THE PLEADINGS NOW COMES Plaintiff, Evanston Insurance Company as subrogee of Boca Aircraft Maintenance, LLC, by and through undersioned counsel, and hereby submits the following Response in Opposition to Defendant, Signature Flight Support, LLC f/k/a Signature Flight Support Corporation’s Motion for Judgment on the Pleadings. I. BACKGROUND On or about July 1, 2009, Plaintiff's Insured, Boca Aircraft Maintenance LLC (“Boca Aircraft”), entered into a lease agreement with Premier Aviation of Boca Raton, LLC for the rental of an airline hangar located at 3300 Airport Road, Hangar 2, Suite 121, Boca Raton, Florida 33431 (“Hangar 2”). (Compl. 11). At all times relevant hereto and pursuant to the lease agreement between Boca Aircraft and Premier Aviation of Boca Raton, Boca Aircraft occupied Hangar 2. (Compl. { 14). On January 13, 2015, Boca Aircraft executed a sublease with Signature Flight Support, neat. tr Ra N (At AN HC 4 OF a nt at tata LLL (Ue Lease J. (LONIpL 7] 19). VeLenaail, oignaure rigol, operaicu, Manayea, Mamuinea, CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED NaINEINNA 49.94.99 DNA Pty. PAL DLA VUUINE TT, PL, VUOL II mDnNUeey, ULLIAN, YUorUiZue! 12.222 Fitand controlled the activities in Hangar 2. (Compl. § 15). Prior to April 13, 2017, Defendant, Signature Flight, retained Defendant, Cintas, to inspect, maintain, service, and/or repair the fire suppression system in Hangar 2. (Compl. § 16). Cintas, in turn, retained Defendant, Lifeline, as a subcontractor to inspect, maintain, service, and/or repair the fire suppression system in Hangar 2. (Compl. § 17). Prior to April 13, 2017, the City of Boca Raton Fire Rescue Services responded to an alarm at Hangar 2, which was set off by the fire suppression system. (Compl. § 19). The City of Boca Raton Fire Rescue Services subsequently conducted an inspection of the fire suppression system in Hangar 2 and determined that the system was leaking and not operating properly. (Compl. { 20). Thus, on April 13, 2017, the City of Boca Raton tagged Hangar 2 as off limits until the necessary repairs were made to the fire suppression system. (Compl. { 21). Beginning on April 13, 2017, Boca Aircraft was not permitted to re-enter and utilize Hangar 2 until June 22, 2017 (“the Incident”). (Compl. { 22). During the time period from April 13, 2017 to June 22, 2017, Plaintiff's Insured suffered business interruption and certain other losses in the amount of $256,750.57. (Compl. § 24). As a direct and proximate result of the Incident and resulting damages, and in accordance with the terms and conditions of the policy of insurance between Boca Aircraft and Evanston, Plaintiff issued payments totaling $256,750.57 to or on behalf of its insured. (Compl. § 25). Thereafter, on March 4, 2021, Plaintiff, Evanston, instituted the present action in Palm Beach County via the filing of a Civil Action Complaint. Plaintiff brings two counts against Signature Flight, including Negligence and Breach of Contract, as Plaintiff alleges that the Incident was caused by the negligence, carelessness, negligent acts, and/or omissions of Defendant, Signature We (At any rugnt. (Compl. ¥j 29).For the reasons set forth below, Plaintiff respectfully requests that Signature Flight’s Motion for Judgment on the Pleadings be denied as a matter of law. Il. LEGAL STANDARD “A motion for judgment on the pleadings pursuant to Florida Rule of Civil Procedure 1.140(c) is a very limited procedural device.” Ray v. Elks Lodge No. 1870 of Stuart, 649 So. 2d 292, 293 (Fla. 4th DCA 1995). Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment. Taylor v. Hanlex Dev., LLC, 274 So. 3d 512, 513 (Fla. Sth DCA 2019); Ray, 649 So. 2d at 293. It is improper for a trial court to enter judgment on the pleadings where factual questions remain. Hart v. Hart, 629 So. 2d 1073, 1074 (Fla. 2d DCA 1994); Turner v. Turner, 599 So. 2d 765, 766 (Fla. 5th DCA 1992). On a motion for judgment on the pleadings, all material allegations of the opposing party's pleading are to be taken as true, and all those of the movant which have been denied are taken as false. Krieger v. Ocean Props., Ltd., 387 So. 2d 1012, 1013 (Fla. 4th DCA 1980). Pleadings are to be liberally construed and should not be dismissed unless “it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Ellison v. Ft. Lauderdale, i75 So. 2d 198, 200 (Fia. 1965) (quoting Voiume 2, Moore's Federal Practice, 2d Ed., § 12.08, p. 2244-2245). Tl. LEGAL ARGUMENT For the following reasons, Defendant, Signature Flight, is not entitled to judgment as a matter of law: A. Provisions in Lease Agreements are Void and Unenforceable to the Extent they Purport to Limit or Preclude Any Liability of Landlord Arising under Law Exculpatory clauses are disfavored and will be strictly construed against the party claiming to be relieved of liability. Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2dDCA 1990); Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 634 (Fla. Ist DCA 1991). While exculpatory clauses that purport to release a party from liability for its own negligence are disfavored, these clauses are enforceable where “the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away.” Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 271 (Fla. 2015); see Hertz Corp. v. David Klein Mfg., Inc., 636 So. 2d 189, 191 (Fla. 34 DCA 1994) (exculpatory clause failed because “it does not clearly express the precise acts for which [defendant] seeks to avoid liability”). However, in the landlord/tenant context, Florida courts recognize an exemption to exculpatory clauses. A provision in a rental agreement is void and unenforceable to the extent that it purports to limit or preclude any liability of the landlord to the tenant . . . arising under law. Fla. Stat. Ann. § 83.47 (1)(b). If such a void and unenforceable provision is included in a rental agreement entered into, extended, or renewed after the effective date of this part and either party suffers actual damages as a result of the inclusion, the aggrieved party may recover those damages sustained after the effective date of this part. Fla. Stat. Ann. § 83.47 (2). Accordingiy, a landiord is not permitted to exempt himself from responsibility for damage resulting from the landlord’s negligence if such an exemption effectively immunizes the landlord from liability for breach of a positive statutory duty to protect person or property of the tenant or the public generally, where violation of such duty constitutes negligence per se. Rose v. ADT Sec. Servs., Inc., 989 So.2d 1244, 1249 (Fla. Ist DCA 2008) (citing John’s Pass Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979); see Loewe v. Seagate Homes, Inc., 987 So.2d 758, 760 (Fla. Sth DCA 2008) (a release or exculpatory clause that attempts to prospectively inonlate a nasty fen Hahilit, fae winloting 9 ctatite av aedinanne anantad ta neatant tha anhlia jo inSuiave @ parry wom wWavuiry 101 Vidwaung a Stave OF Oraiiance Cnaciea tG proce uie Puc iS.generally unenforceable as against public policy); Voice Stream Wireless Corp. v. US. Comme’n, Inc., 912 So.2d 34, 38 (Fla. 4th DCA 2005) (“a party cannot waive liability imposed by statutory provisions that are intended to protect both an individual and the public because to do so would be contrary to public policy”); Holt v. O'Brien Imports of Fort Myers, Inc., 862 So.2d 87, 89 (Fla. 2d DCA 2003) (“[A]n individual cannot waive the protection of a statute that is designed to protect both the public and the individual”); see also, 11 Fla. Jur.2d Contracts § 126 (“[W]here public policy would be frustrated by permitting the enforcement of an exculpatory clause that effectively immunizes a party from liability from breach of a positive statutory duty to protect the well-being of others, the exculpatory clause will not be enforced.”). “In Florida, the violation of a fire code is considered to be negligence per se.” John’s Pass Seafood Co., 369 So.2d at 618 (citing Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1975); see Del Risco v. Indus. Affiliates, Ltd., 556 So. 2d 1148, 1149 (Fla. 3d DCA 1990) (“The violation of a fire safety provision of a county or municipal code constitutes negligence per se, whether found in a Fire Code or the South Florida Building Code.”). In the seminal case of John’s Pass Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979), the District Court ot Appeal ot Fiorida, Second District, addressed the question ot whether a commercial lessor can exonerate himself from liability to his lessee for failure to comply with a fire code mandated by municipal ordinance. Id. at 617. In John’s Pass Seafood Co., the plaintiff/lessee rented a slip at defendant/lessor’s dock to moor his fishing boat. One night a fire occurred on another boat and spread to the plaintiff’s boat. Jd. The plaintiff sued the defendant for damage to his boat for failing to provide fire extinguishers and other firefighting equipment pursuant to municipal code. /d. As an affirmative defense, the defendant pled the avictanne af a cianad anraamant in whinh the nlointiff neared ta hald the dafandant harmless exisence Gr a SigneG agiccimein i Wien ule Praia agreca wo WOiG ule GcicnGant Warmnuessfrom all liability occasioned by the use of the dock, even if the harm was caused by the defendant’s negligence. Jd. Upon grounds of public policy, the trial court refused to permit the lease agreement to be introduced into evidence at trial. Jd. Subsequently, the jury returned a verdict for the plaintiff. Jd. In affirming the trial court’s decision, the District Court of Appeal of Florida, Second District, held that the exculpatory clause in the lease agreement between the plaintiff and defendant was ineffective and could not immunize the defendant from liability to the plaintiff for the defendant’s failure to comply with a fire code mandated by municipal ordinance, in light of the fact that such violation constituted negligence per se. Id. at 618. The District Court of Appeal reasoned that “the public policy of this state would be frustrated by permitting enforcement of exculpatory clauses of this nature as they relate to statutes or ordinances the very purpose of which is to insure the safety of the persons inhabiting the leased premises.” Id. B. The Subrogation Waiver in the Lease is Void and Unenforceable In the present case as in John’s Pass Seafood Co., Plaintiff alleges that Defendant, Signature Flight, as landlord of Hangar 2, violated multiple fire and safety codes causing damages to Plaintiff's Insured. Snecifically, Plaintiff alleges that Signature Flight violated Sections 13.1.7 and 13.1.8 of the 5" Edition (2014) of the Florida Fire Prevention Code and the Boca Raton Code of Ordinances by failing to replace the broken tank diaphragm concentrate vent line of the fire suppression system. (Comp. fff 29 & 39) (Plaintiff’s Reply to Signature Flight’s Affirmative Defenses). Plaintiff further alleges that Defendant, Signature Flight, had a non-delegable duty to comply with said fire codes by ensuring that the fire suppression system was fully operational. (Comp. ff] 15, 28 & 38) (Plaintiffs Reply to Signature Flight’s Affirmative Defenses). As articulated in John’s Pass Seafood Co., violation of said fire andsafety codes constitutes negligence per se and thus, the subrogation waiver in the Lease is ineffective. John’s Pass Seafood Co., 369 So.2d at 618. In support of its argument that the subrogation waiver bars Plaintiffs claims against Signature Flight, Defendant relies upon Fairchild v. W. O. Taylor Commercial Refrigeration & Elec. Co., 403 So. 2d 1119 (Fla. Sth DCA 1981). However, Fairchild does not involve a landlord/tenant relationship and the plaintiff in Fairchild did not allege that the defendant breached a positive statutory duty designed to protect person or property of a tenant, where violation of such duty constitutes negligence per se; thereby, invalidating the subrogation waiver contained in the contract. Jd. at 1120. Additionally, the Fairchild court actually reversed the trial court and held that the subrogation waiver contained in the contract for the installation of an air- conditioning unit did not bar the plaintiff’s subrogation claim. Jd. at 1120. In so holding, the Fairchild Court reasoned with respect to the subrogation waiver that “a limitation of liability for one’s negligent acts will not be inferred unless the intention is expressed in unequivocal terms” and “if intended by [the defendant] as a perpetual exculpation of liability for his negligence, this provision in the construction contract was so obscure and indefinite as to be unenforceable.” Id. (emphasis added). Here, Signature Flight attempts to insulate itself for liability through the subrogation waiver contained in section 5 of the Lease. However, as Florida courts have repeatedly articulated, a landlord cannot waive liability imposed by statutory provisions that are intended to protect both an individual and the public because to do so would be contrary to public policy. See John’s Pass Seafood Co., 369 So.2d at 618 & Loewe, 987 So.2d at 760. As such, Signature Flight cannot exonerate itself from liability for failure to comply with a fire code mandated by tha Dlacide Tire Dravantian Cada and muniainal ardinanne whisk aanctititas naclinanna nav oo ule P10riGa Fire a Teveru0n VOUe ale TiumiCipar Graimance, Windia COMsuLuLeS Teg UZeCe per’ se.John’s Pass Seafood Co., 369 So.2d at 618. Accordingly, the subrogation waiver in the Lease is null and void and Signature Flight’s Motion for Judgment on the Pleadings must fail as a matter of law. C. The Waiver Contained in Section 12.01 of the Lease is Null and Void as Signature Flight’s Violation of the Fire Code is Negligence Per Se As explained in detail above, an exculpatory clause in a lease agreement is void and unenforceable to the extent it purports to immunize the lessor from liability for the lessor’s failure to comply with a fire code, in light of the fact that such violation constitutes negligence per se. See John’s Pass Seafood Co., 369 So.2d at 618 & Fla. Stat. Ann. § 83.47 (1)(b). As in John’s Pass Seafood Co., Plaintiff, herein, alleges that Defendant, Signature Flight, as landlord of Hangar 2, violated Sections 13.1.7 and 13.1.8 of the 5" Edition (2014) of the Florida Fire Prevention Code and the Boca Raton Code of Ordinances by failing to replace the broken tank diaphragm concentrate vent line of the fire suppression system. (Comp. §f[ 29 & 39) (Plaintiff’s Reply to Signature Flight’s Affirmative Defenses). Plaintiff further alleges that Defendant, Signature Flight, had a non-delegable duty to comply with said fire codes by ensuring that the fire suppression system was fully operational. (Comp. f¥ 15, 28 & 38) (Plaintiff's Reply to Signature Flight’s Affirmative Defenses). As articulated in John’s Pass Seafood Co., violation of said fire and safety codes is negligence per se. John’s Pass Seafood Co., 369 So.2d at 618. Accordingly, the exculpatory clause in section 12.01 of the Lease is ineffective as Signature right is not periutiea to exempi itself trom responsioiily io Piamitii’s msured for damage resulting from Signature Flight’s negligence since such an exemption effectively immunizes Signature Flight from liability for breach of a positive statutory duty to protect person or property of the tenant or the public generally, where violation of such duty constitutes negligence per se. See John’s Pass Seafood Co., 369 So.2d at 618; Fla. Stat. Ann. § 83.47(1)(b). Since the section 12.01 waiver is unenforceable and a motion for judgment on the pleadings pursuant to Florida Rule of Civil Procedure 1.140(c) is “a very limited procedural device,” Signature Flight’s Motion for Judgment on the Pleadings must be denied as a matter of law. Ray, 649 So. 2d at 293. IV. CONCLUSION Based upon the foregoing, Plaintiff, Evanston Insurance Company as subrogee of Boca Aircraft Maintenance LLC, respectfully requests that this Honorable Court enter an order denying Defendant, Signature Flight Support LLC’s Motion for Judgment on the Pleadings, and for such other relief as this Honorable Court deems just and proper. Law Office of Stephen Barker By: ___/s/ Stephen £. Barker Ctanhan Rarbar Lonnie owpaen warner, wsquic Florida Bar No: 55357 901-A Clint Moore Road Boca Raton, FL 33486 561-886-8352 slb@stephenbarkerlaw.com Counsel for Plaintiff Of Counsel: Michael F. Wallace, Esquire Law Offices of Robert A. Stutman, P.C. 20 East Taunton Road, Suite 403 Berlin, New Jersey 08009 Telephone: (856) 767-6800 ext. 14 Facsimile: (856)767-6810 e-mail: wallacem@stutmanlaw.comCERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 5, 2021, the foregoing has been filed through the Florida eFiling Portal, which will send a true and correct copy to all attorneys of record. Law Office of Stephen Barker By: __/s/ Stephen £. Barker Stephen Barker, Esquire Florida Bar No: 55357 901-A Clint Moore Road Boca Raton, FL 33486 561-886-8352 slb@stephenbarkerlaw.com Counsel for Plaintiff 10