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Case Notes
Contractual Allocation of Damage Risk Thwarts Insurer's Subrogation Claim
A landlord's insurer was not entitled to recovery where the lease allocated the risk of building damage to the landlord and required it to obtain insurance, which then covered both the landlord's and tenant's potential liability, leaving the insurance company without subrogation rights against the tenant. Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018).
The commercial landlord and tenant entered into a lease which stated that the landlord would obtain insurance for the building and the tenant would insure any of its personal property located within the building. The landlord did obtain such insurance from The Cincinnati Insurance Company (CIC). The building was damaged by fire during the lease term and CIC paid the landlord $227,653 for the building's damages.
This action arose when CIC two years later filed a complaint against the tenant to recover the amount it had paid to the landlord. The tenant filed a motion for judgment on the pleadings, arguing that the landlord had agreed to hold the tenant harmless by contracting to insure the building itself, and that because the landlord was not entitled to recovery, and the insurer stood in its shoes, the subrogation action was barred as a matter of law. The trial court denied the motion and the tenant appealed.
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