Noah Uhry and Kimble Mckay (St. Petersburg, FL) (Premises Liability) Our office was retained to represent Third-Party Defendant, Southwest Construction Services, Inc., in a trip and fall case. Southwest was performing concrete masonry services on the subject property. The Plaintiff fell when exiting a side door to the building that led to the parking lot. Plaintiff claimed that there was a ramp outside the door when she came into work that morning, but that the ramp was demolished when she went to take her lunch break. She was expecting the ramp to still be there, which is what caused her fall. Kellogg and Kimsey was the general contractor on the subject property at the time of Plaintiff’s fall. At first, Kellogg and Kimsey was the only party named in the suit. However, Kellogg and Kimsey filed a Third-Party Complaint against Southwest alleging breach of contract for a failure to indemnify Kellogg and Kimsey. Our office took an aggressive approach and obtained all relevant contracts, change orders, time and material tickets, and work orders to fully investigate the claim being made by Kellogg and Kimsey against our Client.
Next, we deposed the corporate representative of Kellogg and Kimsey to determine why Southwest was brought into the suit. Through our effective deposition questioning, we were able to determine that Kellogg and Kimsey was relying solely on hearsay testimony and did not have any actual evidence that Southwest was involved in construction near the door where Plaintiff fell. During global settlement negotiations between Plaintiff and the Defendant and Third-Party Defendants, our office made it clear that Southwest had no involvement in the construction near the door where Plaintiff fell. Plaintiff reached a global settlement with the Defendant and Third-Party Defendants, with Southwest contributing nothing towards the global settlement.
However, Kellogg and Kimsey was still determined to place liability on Southwest and continued to pursue indemnification from Southwest after Plaintiff’s claim was settled. Our office drafted a Motion for Final Summary Judgment in favor of Southwest and attached as exhibits thereto, Kellogg and Kimsey’s corporate representative’s deposition transcript in which he admitted to solely relying on hearsay testimony for the basis of why Southwest was brought into this claim. We also attached the change orders, work orders, and time and material tickets for Southwest’s work at the project to the Motion for Final Summary Judgment, which prove that Southwest did not conduct any work near door where Plaintiff allegedly fell. Kellogg and Kimsey’s response motion included an affidavit that stated that Southwest was instructed by Kellogg and Kimsey’s foreman to not remove any dirt from the area near the door where Plaintiff fell, but that dirt was ultimately removed, without specifying who removed the dirt. In response, our office filed a competing affidavit from Southwest’s foreman stating definitively that Southwest did not remove any dirt from in front of the door where Plaintiff fell.
At the Summary Judgment hearing we argued that Kellogg and Kimsey was relying on hearsay testimony, and a stacking of inferences in an attempt to place the blame on Southwest. We showed the Court the time and material tickets, change orders, and the affidavit from Southwest’s foreman which showed definitively that Southwest had not performed any work in front of the door where Plaintiff fell. Kellogg and Kimsey was not able to produce any admissible evidence that Southwest had performed work in front of the door where Plaintiff fell. As a result, Southwest’s Motion for Final Summary Judgment was granted.
There was a prevailing party clause to the contract between Southwest and Kellogg and Kimsey that allows for attorney’s fees and costs to be paid to the prevailing party of any action between the two. Thus, our office is currently pursuing attorney’s fees and taxable costs against Kellogg and Kimsey pursuant to the contract.