A Party Cannot Use Indemnity Clause to Create Basis for Attorney’s Fees Unless Clause Clearly Expresses that Intent
In a recent case (discussed here) a party moved for attorney’s fees under an indemnification provision. The party claiming attorney’s fees was the indemnitor (party giving the indemnification) claiming that it should be entitled to attorney’s fees based on Florida Statute 57.105(7) which allows the trial court to award attorney’s fees in a reciprocal manner. The problem, however, was the case had nothing to do with indemnity, which is really when a claim is made against you (an indemnitee) by a third party and you are looking to pass that claim through to the indemnitor. While the trial court granted attorney’s fees, it was reversed on appeal. The morale is that if you want an attorney’s fees provision in your contract, include a prevailing party attorney’s fees. Make this a key negotiating point.
Below is the appellate court’s analysis for rejecting the argument that the indemnity provision created a basis to recover attorney’s fees by the party serving as the indemnitor in the contract at-issue:
The provision relied upon is an indemnity clause, which does not extend to fees between the parties. The provision is clearly labeled as an indemnification clause, which is indicative of the provision’s meaning.
“Generally in Florida, indemnity provisions apply only to third-party claims.” “Florida courts have held that indemnification clauses . . . apply only to liability for claims brought by third parties, and not to suits between the contracting parties.” “[A] party to a contract cannot use an indemnity clause to shift attorney fees between the parties unless the language of the clause shows an intent to clearly and unambiguously shift the fees.”
The indemnity provision in this case does not clearly and unambiguously state that it applies to attorney’s fees for suits between the parties. In International Fidelity, the Eleventh Circuit, while applying Florida law, found that an indemnity provision did not extend to suits between the contracting parties. …
Similarly, in the instant case, … the indemnity provision in the RFP does not clearly or unambiguously state that it provides fees for disputes between the parties. The RFP could have included a prevailing party fee provision if it intended to cover fees for disputes between the parties. Thus, we find that even if there was a contract between the parties, which there was not, the trial court erred in granting fees to [the party serving as the indemnitor] because the indemnification provision did not provide for fees between [the party serving as the indemnitor] and the [party serving as the indemnitee].
Community Redevelopment Agency of the City of West Palm Beach v. Vita Lounge, LLC, 50 Fla.L.Weekly D2448a (Fla. 4th DCA 2025) (internal citations omitted).
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
