does not apply the suit between those parties rather claims by third parties against them that's typically what an indemnity provision does most importantly does not unambiguously state that the prevailing party in suits between those two can recover attorney's fees from the other and when you're dealing with an indemnity provision strict construction is required additionally the lower court because it's clear that the surety that the other party to this appeal is not a party to the subcontract is the applicable statute which makes one way attorney's fees bilateral is fifty seven one of five and it only applies when the party seeking fees both prevails and is a party to the contract containing the fee provision fifty seven one zero five as a statute must be strictly construed fifty seven one of five by itself cannot be used to expand the scope of a fee provision or to convert an indent an indemnity provision into a fee provision in addition the sureties never actually performed under the sub contracts they didn't step into the shoes of the subcontractor to be subject to the obligations and rights this court in d v s acquisition versus brown and eleventh circuit two thousand and sixteen case looked at the default position under which indemnity clauses are generally enforced and that they're limited to coverage of claims by third parties and it mirrors the so called american rol with each party bearing their own fees this court in the eleventh circuit in sukar looked at the law that applies and determine that when you have an indemnity provision courts require that there be a contract to have contractual entitlement to attorney's fees and indemnity clause you must manifest in some clear way an agreement to reimburse the other for attorney's fees for a specific matter from performance under the agreement etc the eleventh circuit held in looking at the strict construction application that the indemnity cause must be construed to apply only to third party claims and did not limit the attorney's  a prevailing party there is an applicable state court case mccarthy brothers vs tilbury which is the closest factually that you can get in that case there was a subcontractor that sued a general at the trial level the surety raise the exact arguments that were raised before the district court and that are that are here that entitlement to prevailing party attorneys fees based on the language of the sub contract to which the sure he was not a party in that case in mccarthy there actually was a prevailing party attorneys fees provision which was incorporated into the bond in this case you have just an indemnity provision that does not have prevailing party but in the mccarthy brothers case the first district court of appeal reversed the trial court and held that the sub contractor security was not entitled to recover attorney's fees on the prevailing party basis because they were not a party to the sub contract even though that incorporation by reference argument had been made in that case the vomits upon they are incorporate the subcontract it did ok so that argument was raised in the first district court of appeal squarely rejected it and additionally they specifically just to me the surety said i have no liability my bonds not lombard i'm getting out of this thing i'm over here i have no liability i don't know how when you didn't perform under the bond or indemnification agreement i have to compare it to the one in macarthur where they had the same language this one's a little broader and some of them obscene you could in you have two different ways to accomplish this they could do that not get into all of this of the business right you could which is what would be the best florida case for they don't step in the shoes that's the bulk of the subcontractor here that would be in the car of the brothers that looked exactly at this particular issue with  yes your honor mccarthy brothers versus tilbury contract so i still that case in the other case or the other the only other case that that we've cited in rely on is the sue car case from the eleventh circuit but it didn't deal specifically with construction related bonds in addition there are there are cases that are sided on the other side of from the eleventh circuit a d f international which has three differences one is that the the so the contract provision for inde had a failure to perform as opposed to arising from so it was more of it in the in the sense of a breach of the contract the second is that the indemnity provision had the language that it was not limited including but not limited to claims made by third parties which the eleventh circuit panel in that case seized on and say quote in light of this sentence it is impossible to construe the provision as being limited to third party claims so in that case there's no tension with fifty seven one hundred five because in the a t f vs baker mellon case both parties to that agreement are in the dispute in this case you have the surety seeking to become a party when strict construction says you can't ask a question about the paragraph on indemnification the wording of it i know that this is not an argument you're making but i think opposing counsel and i think doesn't counsel actually has said that what i'm about to ask you is not a correct interpretation but i just i'm not understanding exactly the way this is phrased in the middle of this paragraph it says well let me go through to the fullest extent permitted by law subcontractor shall indemnify and hold harmless the contractor its officers directors or employees and the owner from and against all claims damage losses and expenses including but not limited to and so he says including but not limited to their attorney's fees arising out of in connection with or resulting from the performance of work under the sub contract agreement and here it is including but it doesn't say including but not limited to if caused in whole or in part by any of mission defaulter contract performance or nonperformance by contractor or its officers directors agents or employees and then it says when any such claim damages loss or expense is attributable to bodily injury sickness disease or death or to injury to or destruction of tangible property then it goes from there so it seems like that language is limiting the applicability paragraph even without getting into attorney's fees to situations where we have bodily injury sickness disease or death or injury or two or destruction of tangible property  i am understanding your colleague to say no that's not right it doesn't limit it does it's not limited because it is including including mean can mean including but not limited to but i note that above in the parent that it does say including but not limited to attorney's fees but uses the phrase including here without but not limited to so my question to you is what does when any such claim damage los etc modify the act omission to fault or contract performance or nonperformance by the contract that's what that modifies because in florida in order for for one party to be indemnified for their own issues they have to comply with certain statute which is cited at the bottom seven twenty five point zero six but to answer your question the when it limits the clause above it dealing with the amount of indemnity provided here under bears a reasonable commercial relationship at sarah ok so you're saying after the including it's including even some of the contractors conduct not only the sub losses the sub contractor cost including the contractor right third party claims rising and it's every ok thank you it's a weird prevailing party or even a one sided attorney's fees provision which is the point that we've tried to raise so it is normal to have this type of indemnity clause it's not normal to try to stretch it to be what it's not which is a bilateral common law it's always been the case and i've actually got some georgia a may not georgia florida case is that your only state can recover under to the extent you've performed are  certainly under fifty seven one of five if there's no bond and there's no contract and there's no fees over i'd like these last bits to just distinguish some of the cases that have been cited by my opponent in the merchants case merchants bonding that they are not dealing with an indemnity provision but a you know unilateral fee provision in the ajax paving vs hardaway case the only issue in that case is whether a voluntary dismissal makes the other party prevailing party the surety wasn't involved in seeking under that case in the gibbs case that actually held contractual attorneys fees must be strictly construed and did not allow attorney's fees under the indemnity provision they used the prevailing party provision and finally the is brief here makes two two points one is that indemnity without having a separate prevailing parties fee provision makes clear the intent of the parties just indemnity not attorney's fees the court should not rewrite what this provision to stretch it to my opponent's natural request it would also have a chilling effect on the industry if all of a sudden what everybody thought was a clear indemnity provision now became we got a lot of subcontract i really have no law belittling we have no contractual obligation here at on i understand the bonnet corporate side contract we have no obligation under the sub contract go decision which is a decision that was pulled out i think two or three months ago from washington and in that case and i do apologise i'm going to have to read from from the case briefly  performing the surety was acting in the shoes of his principal under the sub contract therefore the series and the fees under a surety bond with a principle which itself incorporated the terms of subcontract the significance is this your honor the surety raised the defenses of its principle the lack of notice it raised actually two to two issues it was it went from the lack of if there is a three day cure notice in the sub contract again bond so you have the first your notice requirement and then yes as a as a as a follow on you have the other notice i was a court of the under the under the bun but this court found that the three day cure notice was the the significant factor what makes this even more relevant is that based on this court's decision c p m in state court litigation with aim j v went out and got a summary judgment on liability under res the surety did for us in federal court we get a summary judgment on a liability as a result of that we have factually illegally stepped into the shoes and prevailed on behalf of c p m in this litigation and florida law because i've got cases trans america v barnette biker you familiar with that ok and home insurance versus larkin and i thought you were going to go you sa there has to be the surety has to perform well as kinko said that when when a surety denies liability like like like it is now it's still performing under the bonnet is saying there is no coverage under the bond based on journalist on the sub contract so we don't have to rely on equable sergei should principles it is sufficient for this for the surety to try this one merchants bonding are you familiar with merchant defenses it would be entitled to attorneys look at look at that case closely because it basically said that they awarded tarnas fees to the surety they don't know your own because there was no prevailing party of it basically this was a construction dispute where they had competing claims and ultimately the court said you know what you both you both are right you both reached a contract we're not paying anyone anything and then indictive the court goes on the said i thought the surety prevailed on the defense there and so there was no liability at all under the bond that was the c p s defenses we showed that there was a wrongful termination arising out of their failure to give notice under the sub contract and c p m has gone out and gotten a summary judgment on liability based on the sure his work this port to look at the state court proceedings and our motion for judicial judicial notice because it is is crystal clear that m j b is filing suit against third parties invoking the same saying were entitled to recover attorney's fees under section one point i was doing and what are you talking about the state court litigation there's there's two cases there's one federal court which is that the dec action that we're involved in and am j v filed in in state court a claim against c p m our principle in that case what seeking resulting from the same fact if i thought that because notice wasn't given because they went in and brought in their own news right that there's stuff they didn't they didn't allow the cure so what are they after the sub for now though they felt to actually sum up a simultaneously one is a deck action against the judicial judicial notice has there been judgment entered in that state court action i think you're telling us it was there was a summary judgment on liability the issue of there's two counts in that action there's the wrongful termination the the rulings but it is what it is and it's not all of that leaving aside judge holes issues and leaving aside whatever inconsistent statements they made and that litigation to me i look at nine point five the indemnification provision you're talking about and are case law in florida case law and it seems to me that strictly a provision that says looking to a situation where a third party is suing the sub of the subs and deficient work in that particular scenario then you all come in as the surety you bay defend it and the general says look i'm out even if i was a little bit negligent i'm out it's all on you and best i can tell our case law says this only talks about third party claims against the so we have something different here we do have the something different here we have those two different parts of the contract twelve point two terminations of the eleven point two claims of the contractor against as those provisions are what we're dealing with here where the sob didn't do something bailed on you you didn't they didn't give three days notice all that's there there's no attorney provision there if there's no attorney for the provision there why are we reaching back to another clause which  brief in one of the footnotes it's very telling they quote and say this is a standard indemnity clause and if they bail it out in a footnote i want you to compare the footnote version of what they say is a traditional indemnity clause to what we the cases that they cite because i don't think that they're applicable you start off with a broad coverage i think judge arose among i think you had the including language and you had sort of hang up there the first the first part of this i this is walk us through this how does this get to be a first party line between the saab and the contractor ok the first the first provision is the broad coverage the broad coverage encompasses everything that deals with the performance emissions the fault of the contractor or not performance by the contractor blah blah blah when any such claims are basically third party claims ok so this is known in the industry as a coverage for wrongful acts  caused by the end here am j v resulting on third party claims so this is your third party claim provision the fact that it references including means that the excuse me means that the language above must be broader than the subset you have broad coverage and then you have a subset that deals with third party claims and there in fact the next sentence beyond that is is a exclusion to that subset which basically deals with we're not going to cover these gross negligence or intentional acts so you have broad coverage you've got the subset for the third mean it let me let's get to some specific question here so what you're really you're trying to get me back to the point it's not just a third party klein it could be a client between the sub and the general that's what you're trying to get me to based on the body language above you are and so let's have a real scenario let's say the and the general the sub says hey you're not paying me enough for my work you know are you don't like their work you say it wasn't good enough to pay for so there's a klein and you go to court and it turns out the sub i got it wrong the general lands because the sub did something wrong the general went on explain me how it's going to work you're trying to get into the century an absurd of the absurd conclusion that  can lose right and yet prevail in attorney's fees and that's how we distinguish all of their cases you look at century you look at penthouse you look at sue car b s b n r f a r r f m the five cases that they rely on rely on o including language down below because it's not applicable to the facts of this case if you if and i would agree with mike mike my colleague if this case involves wrongful acts leading to third party claims and then there's basically the eleventh circuit has two lines of me that and you know granted p b s and and sukar unpublished so they're not precedential but even so it doesn't seem to me that those cases are decided necessarily on the principle that there were wrongful acts it seems to me like they're decided on the principle that we're talking about that indemnification clause is usually intended to deal with third parties and third parties only and that is different from the prevailing parties attorneys fees clause of course we although although there can be an exception to that but it just has to be clear it has to be you know clear right i can remember the and i'm with you one hundred percent when you look at the indemnity agreements in those cases it doesn't have the broad coverage our provision has the broad coverage that deals specifically with the issue in the case the reach of the performance of the sub that there was a part of the indemnification clause of the district court hadn't addressed and that sent in said the foregoing obligations of the subcontractor shall include but are not limited to my debt in denver if i'm defending and holding harmless from claims made by third parties against any of the indemnified party and so we said that that second sentence clearly says that indemnification is not limited to third party claims but that doesn't seem to be the case here i'm with you hundred percent on this one as well if you look at that case it's that it made it impossible that language that additionally made it impossible to have any other construction that that sentence is not necessary to make make it make it clear and unambiguous because if you look i agree you don't have to use that sentence to make your not ambiguous but i think you in the facts in that case that that was what made it clear and unambiguous while the first sentence was was good enough for the district court and if you look at the case that it relies on it's the cone decision and the co decision has yet been a feeling was that we have so this court relied on home to say that by first sentence was good enough and that's all we have here that sentence is good enough and if you want to go one step further i would say i would say that once we use the word including and we have the third the wrongful acts caused inter party language after the including that's the equivalent of that sense of that sentence and in a t f in that in the a t f is it including but not limited or party claims you were saying including which is creates a subset of a broader coverage so i think that my language is equivalent to the language in a t f and that second sentence if you are going and to to wrap things up unless you have any further questions it was to thank you we have one more i'm looking at merchant's bonding which you just said well that's all about equitable subrogation i don't see the word  so far as this you're looking at as as a surety look at me for a second as c p m because i stand in the shoes of c p s so we're for purposes of this case in this appeal we are we are too so if c p m would have prevailed on its lack of just if you are going to reverse just i'm not i'm not still kind of first we don't we have an i would say i don't know no i just got to remind the court that we have an offer of judges so you have to remain so we have an offer judgment issue that used to be i don't want to lose my opportunity to run back to state court say ok working backwards the indemnity provision does not unambiguously provide a clear agreement to reimburse the the other for attorney's fees so that's the first point what do you say about your colleagues argument there because there's a subset it's like the phrase or that the clause that was an issue in a t f it's not it's  because the language in a t f was a failure to perform so the subset had no issue the eleventh circuit panel on a t f seized on that one sentence including but not limited to and they said not limited to that's what we're going to rely on and the sukar case which came later in time pointed out to the absurdity of the position i think the judge carnes raised which is hey if this indemnity clauses and force the way you're arguing that means the attorneys fees t all in void and everything that is sought to be incorporated in the basis for attorney's fees would be known void some of the cases that we cited included mortgage cases where nonparty said they filed lawsuits and so forth and then it was determine that they were non parties to the contract and as a result they were not allowed to use the fifty seven one if i were supreme reciprocity the third point is that in the state court cases which are not part of the record because they were considered before the district court in the court properly denied judicial notice there has been no entry of entitlement there's not been a state court adjudication that nine point five operates as a prevailing party attorneys fees in those other cases which are not in this record those are based on third party claims in this case at the district court level and the counter claim that we raised we did not cite nine point five as a basis for attorney's fees that is in the record so we would encourage your honor to reverse the district court unless you have any other questions all right thank you thank you rob we'll be in recess until tomorrow