JERALD D. ZWAK AND MYRNA ZWAK, HIS WIFE, APPELLANTS,
v.
ED BROWN AKA BERN BROWN AKA ED BROWN DESIGNERS AND BUILDERS ET AL., APPELLEES
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In this contract dispute, the Zwaks sued Ed Brown and his sureties for incomplete home improvement work. After judgment for Brown, the trial court awarded attorney's fees for the sureties' defense as costs against the Zwaks. The appellate court affirmed, holding that Brown's indemnification obligation to the sureties made their defense costs proper recoverable costs.
The court affirmed the award of attorney's fees as costs. Because Brown was contractually obligated to indemnify and hold harmless the sureties, and defending the suit was part of satisfying that obligation, the sureties' defense costs were proper costs for which Brown should be reimbursed.
[1] A party who is contractually obligated to indemnify and save harmless a surety is entitled to recover attorney's fees incurred in defending the surety in litigation arisi…
[2] Attorney's fees incurred in defending a surety, when the principal is contractually obligated to indemnify the surety, may be taxed as costs in favor of the principal.
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Join FLexlaw to unlock all legal intelligence“Brown was by his contract obligated to save harmless the Sureties herein and part of saving the Sureties harmless was defending the suit brought by the Zwaks.”
Establishes the legal basis for awarding the sureties' defense costs—the contractor's contractual indemnification obligation
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Zwaks contracted with Ed Brown for home improvements. When Brown claimed completion, the Zwaks refused payment and sued Brown and his sureties (Mo…
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Appellants, Jerald D. Zwak and Myrna Zwak, his wife, contracted with Ed Brown, also referred to as Bern Brown, and also referred to as Ed Brown Designers and Builders, for certain improvements and additions to be made to their home. Zwak, upon Brown advising him that he had completed the contract, refused to pay Brown. Zwak brought suit against Brown and his Sureties, Morrison Assurance Company and American Fire & Casualty Company, claiming that the work was incomplete and the workmanship poor.
The case was tried before the judge without a jury and at the conclusion a judgment in favor of Brown was entered. Subsequently, Brown filed a motion to tax costs. In these costs he asked for attorney’s fees for the defense of Morrison Assurance Company and American Fire & Casualty Company in the sum of $800.00 each. After a hearing on the motion, the trial judge entered its order awarding attorney’s fees as part of the costs.
Appellants urge that it was error for the trial judge to include the Sureties’ attorney’s fees as part of the costs. The trial judge in his order set forth the following :
“As his costs in this action as a successful party defendant the Court hereby assesses as a Final Judgment in favor of Bern Brown and against plaintiffs, Jerald D. Zwak and Myrna Zwak, his *359wife, the sum of $1,600.00, said sum being composed of the two awards of attorney’s fees hereinabove awarded to the defendant Surety Companies.”
We believe the court was correct in awarding the attorney’s fees as costs. Brown was by his contract obligated to save harmless the Sureties herein and part of saving the Sureties harmless was defending the suit brought by the Zwaks. This was a proper cost incurred by Brown for which he should be reimbursed.
For these reasons the judgment is affirmed.
PIERCE, C. J., and HOBSON, J., concur.
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Zwak v. Ed Brown aka Bern Brown aka Ed Brown Designers & Builders, 253 So. 2d 876 (Fla. 1971)…Certiorari denied. 251 So. 2d 358. ROBERTS, C. J., and BOYD, McCAIN and DEKLE, JJ., concur. ERVIN, J., dissents.…