The opinion of the court was delivered by: ELFVIN
This cause of action is for personal injury allegedly sustained by Patricia Jones, a resident of the Western District of New York, at the Tri-Circle D Ranch, a facility at Walt Disney World in Lake Buena Vista, Florida. The accident occurred on the morning of March 22, 1973. Plaintiff Patricia Jones was a customer at the Tri-Circle D Ranch for the purpose of going on a horseback ride tour of the ranch. Upon purchasing a ticket to participate in the tour, she signed a "Waiver and Hold Harmless Agreement" which reads in full as follows:
" WAIVER AND HOLD HARMLESS AGREEMENT
"In renting a horse from Walt Disney World Co., I agree to assume the risks inherent in horseback riding. I hereby waive any and all claims or causes of action which I may now or hereafter have against Walt Disney World Co. arising out of any injuries I may sustain as a result of that horseback riding, and I will hold Walt Disney World Co. harmless against any and all claims resulting from such injuries.
"This waiver and agreement to in-demnify shall be binding upon me and my heirs, personal representatives and assigns.
s/Patricia J. Jones (Seal)
As her mount, she was offered a bay gelding by the name of "Buddy". After mounting, Patricia Jones rode over to a group of other customers who were waiting to leave the corral for the tour. It was then, as contended by plaintiff, that Buddy suddenly and without warning began to spin, roll about and violently buck, throwing her to the ground and causing her injuries.
Subject matter jurisdiction is grounded on diversity of citizenship with a claim of more than the statutory amount. "Quasi-in-rem" jurisdiction was obtained through the procedure of attachment of an insurance policy. Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966).
After removing the action from state court, defendant moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint on grounds of its failure to state a claim or, in the alternative, to grant summary judgment under Rule 56 on the ground that there is no genuine issue as to any material fact. If the cause of action were not to be dismissed and summary judgment were not to be granted, defendant moved to transfer this action to the United States District Court for the Middle District of Florida under 28 U.S.C. § 1404(a).
Defendant contends that Patricia Jones, in clear and unequivocal language, agreed to waive any claims or causes of action which she had or would have against defendant arising out of any injuries sustained as a result of the horseback riding.
Florida Law is controlling on the question of the interpretation to be given the agreement. Referenced authorities from New York and other jurisdictions by both plaintiffs and defendant -- especially Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960) -- while informative, are in no way controlling.
As to the indemnification aspect of the agreement, it is clear that under Florida Law the intent to indemnify the indemnitee for his own negligence must be specifically provided for in the indemnity contract. University Plaza ...