ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellant's motion for rehearing and the replies thereto, we vacate our prior opinion and substitute the following. Appellant (third-party plaintiff below) appeals from a final order dismissing with prejudice Counts I-IV of the Sixth Amended Third Party Complaint, in construction contract litigation, contending that the trial court erred in dismissing its claims for contractual indemnity against three subcontractors in Counts I, II, and IV, and in dismissing its claim for common law indemnity in Count III. We reverse as to Counts I, II, and III, but affirm as to Count IV.

Counts I, II, and IV, seeking contractual indemnity, were apparently dismissed in part on the ground that the indemnity contract between the general contractor and subcontractor did not contain either a monetary limitation on the extent of damages, or specific consideration for indemnity as required by Section 725.06, Florida Statutes (1972). That section reads as follows:

725.06 Construction contracts; limitation on indemnification. — Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract or its performance shall be void and unenforceable unless:

(1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or

(2) The person indemnified by the contract gives a specific consideration to the indemnitor for the indemnification that shall be provided for in this contract and section of the project specifications or bid documents, if any.

Appellant argues, among other things, that Section 725.06 applies only to indemnification against one's own negligence and thus does not have any application to the specific facts at bar. We agree.

Specifically, Section 725.06 states in relevant part as applied to the factual scenario before us: "Any portion of any agreement or contract for, or in connection with, any construction, . . . between . . . [a] general contractor . . . [and] subcontractor . . ., wherein any party [general contractor/indemnitee] . . . obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party [general contractor/indemnitee] arising from the contract . . . shall be void . . . unless . . ." We interpret this statute to apply only in circumstances wherein a party by contract seeks to obtain indemnification from another party for its own active negligence. Under circumstances in which a party seeking indemnity is shown to be actively negligent, we consider that the legislature intended that before such party may be indemnified for its own negligence, it must satisfy either of the two above exceptions set forth in Section 725.06.

In reaching this conclusion, we are not unaware of the general rule that although contracts of indemnification which protect an indemnitee against its own negligence are valid in Florida, they are generally looked upon with disfavor. Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla. 1979); Harrison Associates, Inc. v. Florida Power Light Co., 162 So.2d 298 (Fla. 3rd DCA) cert. den. 166 So.2d 754 (Fla. 1964). Moreover, in a very recent opinion, Cothron, Inc. v. Upper Keys Marine Construction, Inc., 480 So.2d 136 (Fla. 3rd DCA 1985), the Third District Court of Appeal determined that Section 725.06 only governs a situation wherein the general contractor/indemnitee seeks indemnification from the subcontractor for the general contractor's negligence. Cf. Westinghouse Electric Corp. v. Turnberry Corp., 423 So.2d 407 (Fla. 4th DCA 1982) rev. den. 434 So.2d 889 (Fla. 1983) (section 725.06 found applicable to an agreement that specifically stated in clear and unequivocable terms that the subcontractor was to be indemnified for its own wrongdoing); A-T-O, Inc. v. Garcia, 374 So.2d 533 (Fla. 3rd DCA 1979) (section 725.06 held to apply and therefore voided an indemnity agreement whereby an employer agreed to indemnify A-T-O (manufacturer's buyer) against the consequences of A-T-O's own negligence). In cases, however, wherein the subcontractor enters into a contractual agreement to indemnify the general contractor for negligence caused by the subcontractor, Section 725.06 has no application. Cothron, Inc. v. Upper Keys Marine Construction, Inc., 480 So.2d at 137.

Therefore, the proper inquiry in this case is whether the indemnity provisions at bar come within the statute; that is whether the clauses provide indemnification to the indemnitee (general contractor-appellant) for its own negligence. We find that in two of the appellee's indemnification agreements (Mid-South Glass Co. and Western Waterproofing Co.), Section 725.06 does not apply since the clauses do not absolve the indemnitee (appellant) for its own negligence. Rather the clauses state:

SIXTH: The Subcontractor shall assume the defense of and indemnify and save harmless the Contractor, the Owner, their officers and employees from all claims, liability, loss, damage, or injuries of every kind (except as hereinafter excluded) resulting from the performance or failure to perform the work by the Subcontractor; provided, however, this paragraph shall not apply to claims, liability, loss, damage or injuries based upon the negligence or alleged negligence of the aforesaid indemnities except in connection with their general supervision of the work performed by the Subcontractor.

(emphasis supplied)

The order of dismissal, as it applies to counts I and II, is therefore reversed.

As to Count IV, regarding contractual indemnity against subcontractor Cast-Crete, we were unable to locate the purported indemnification agreement, and following the rule recognizing the correctness of a decision below unless clear error is shown, we uphold the dismissal of the contractual indemnity as to Count IV.

As to the claim against Cast Crete for common law indemnity, we reverse. "Indemnity can only be applied where the liability of the person seeking indemnity is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed." Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 493 (Fla. 1979). Cast Crete, a subcontractor, argues that the general contractor, Tuttle, on whose behalf appellant issued a performance bond, is not merely vicariously liable because by the provisions of the purchase order agreement between Tuttle and Cast Crete, Tuttle established its duty to inspect and approve the plans and samples for materials submitted by Cast Crete, and Tuttle "had arranged by subcontract for its designated architect-engineer to judge, appraise and approve the materials themselves." For this reason, Cast Crete contends, Tuttle failed to set forth sufficient ultimate facts upon which relief could be granted, because an essential element of a claim for common law indemnity is freedom from active negligence.

It appears from the record that there is no subcontract between Tuttle and the architect, who was actually the owner's representative. Nor was there any formal agency relationship between Tuttle and the architect. As to Tuttle's dealings with Cast Crete, however, there is the possibility of an agency by estoppel, on the theory that Tuttle held the architect out as its agent by virtue of the inspection/approval language in the purchase order agreement between Tuttle and Cast Crete. The elements of an agency by estoppel are: (1) a representation by the principal; (2) reliance on the representation by a third person; and (3) change of position by that third person in reliance on the representation. 2 Fla.Jur.2d "Agency and Employment" s. 7. If such a relationship exists in the present case, Tuttle would not be free of all but vicarious liability if the defects could have been found during the inspection/approval by the architect, and the action for common law indemnity would be defeated. There is also the possibility of a latent defect in the materials supplied by Cast Crete, however. The purchase order agreement speaks of inspection/approval of plans/samples in terms of size, color, and texture. This may or may not cover a possible defect in porousness of the materials, which is the defect alleged in the Sixth Amended Third Party Complaint. "The general rule as to waiver of defects by an acceptance does not apply to latent defects," 13 Am.Jur.2d "Building and Construction Contracts" s. 55. Thus there is also a possibility that Tuttle was merely vicariously liable for latent defects in the materials.

"When considering a motion to dismiss for failure to state a cause of action, factual allegations of the complaint must be taken as true and all reasonable inferences are assumed in favor of the plaintiff." Cutler v. Board of Regents, 459 So.2d 413, 414 (Fla. 1st DCA 1984).

For the reasons stated above, we reverse the dismissal of Counts I, II, and III and affirm the dismissal of Count IV for contractual indemnity. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

ERVIN, JOANOS and BARFIELD, JJ., concur.

PER CURIAM.

ON MIDSOUTH'S AND WESTERN WATERPROOFING'S MOTIONS FOR REHEARING

PER CURIAM.

Appellees MidSouth and Western Waterproofing (subcontractors), in their motions for rehearing, argue that we overlooked the last portion of the indemnity clause, which states, "[P]rovided, however, this paragraph shall not apply to claims, . . . based upon the negligence or alleged negligence of the . . . [subcontractor] except in connection with their general supervision of the work performed by the subcontractors" (emphasis supplied), as furnishing support for their interpretation of the clause that it does seek to indemnify the general contractor from its own negligence. A literal reading of Section 725.06 requires us, according to the subcontractors, to apply the statute to the clauses at issue, since the statute on its face applies broadly to one seeking indemnity from its own negligence. Therefore, the subcontractors contend the clauses at issue are void as they do not contain either a monetary limitation or specific consideration, as required by section 725.06.

If we were to accept these arguments, the result would be, despite the parties' voluntary agreements, to deny the contractor his contractual remedy of idemnification because the contract does not contain either of the statutory conditions. We decline to construe the contracts at bar along the lines argued by subcontractors. Rather, we regard the contractual clause on review, as limited to the issue of whether the lower court correctly dismissed appellant's complaint for indemnity, as susceptible to the interpretation that the contract calls for the subcontractors to indemnify the general contractor in situations only where the latter is vicariously negligent. A pertinent portion of one of the clauses at issue illustrates our position:

The subcontractor shall assume the defense of and indemnify . . . the contractor . . . from all . . . liability . . . resulting from the performance or failure to perform the work by the subcontractor, provided, however, this paragraph shall not apply to claims, liability, . . . based upon the negligence of the aforesaid indemnities except in connection with their general supervision of the work performed by the Subcontractor.

(emphasis supplied)

From our reading of the above clause, it is impossible to ascertain whether Tuttle, the general contractor, sought to have itself indemnified for its own active or derivative negligence, caused by a breach of its affirmative duty to supervise all construction work. If it sought the former, clearly it would be barred by the provisions of section 725.06, because it did not comply with the statutory conditions. If the latter, then it is, under our view, entitled to indemnity. In fact, appellant's final amended third-party complaint, while alleging certain counts predicated on contractual indemnity, tracked the language of common law indemnity. For example, pertinent allegations in count I of appellant's amended complaint are as follows:

19. That if the defects and damages alleged in the [Plaintiff's] Amended Complaint exist, said defects and damages resulted solely from the breach of said duty and the poor workmanship and use of defective materials of WESTERN (to wit: irregularities and defects in the placement, length, and installation of weep holes or drainage tubes and in the quantity, quality, and installation of the sealant and caulking of the gasket joints and precast panels), and its failure to complete its work in accordance with said plans and specifications, said defective performance occurring between September 2, 1975, and the completion date of WESTERN'S work, said date not now known to FEDERAL but known to WESTERN.

20. That if the defects and damages alleged in the Amended Complaint exist, this Defendant may be liable to Plaintiff for resulting damages if it is found that the alleged defects and damages constitute a breach of TUTTLE'S contract with Plaintiff.

21. That any such liability will be vicarious, constructive, derivative, or technical, and the damages alleged in Plaintiff's Amended Complaint are the result of WESTERN'S breach of duty as alleged above.

(emphasis supplied) If, for example, a later set of facts reveals that Tuttle was on actual — as opposed to constructive — notice of the defects, which it alleged were the proximate cause of the resulting injuries to the original plaintiff, appellant would be considered actively negligent, and therefore barred from indemnification. See Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA 1963), as modified, Winn-Dixie Stores, Inc. v. Pepsi-Cola Bottling Co. of Jacksonville, 160 So.2d 102 (Fla. 1964); Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla.2d DCA 1976).

It is hornbook law that in ruling upon a motion to dismiss all well-pleaded facts must be accepted as true, "[w]ith the fundamental question being whether a cause of action would be established by proving such allegations." Robert L. Turchin, Inc. v. Gelfand Roofing, Inc., 450 So.2d 554, 556 (Fla. 3d DCA 1984). Moreover, a party seeking indemnity need only allege facts showing that he was not actively negligent but is potentially only vicariously, constructively, derivatively or technically liable, and that the duty he allegedly breached was actually the duty of another who breached that duty. Id.

To conclude, we are of the view that the appellant's amended complaint, and the contracts attached thereto, sought indemnification for only the contractor's derivative negligence. Accordingly, by reason of the interpretation we have placed upon the contracts, we regard the complaint as having stated a cause of action and deny the motions for rehearing.

ERVIN, JOANOS and BARFIELD, JJ., concur.