dissenting.
I respectfully dissent. I cannot agree with the majority’s conclusion that this case is distinguished from Marchman & Sons v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983), because here no valid cause of action ever arose for the plaintiffs against the landlord. In my view, although the tenants and the landlord agreed not to sue each other before the loss occurred, the lease provision creating that agreement was unenforceable as a matter of law. Therefore, no valid distinction exists between this case and Marchman & Sons; the plaintiffs had a valid cause of action against the landlord, and the landlord and the “product defendants” were joint tortfeasors amongst whom a right of contribution existed.
*497My conclusion that the lease provision is unenforceable is based upon OCGA § 13-8-2 (b), which for reasons of public policy prohibits in certain contracts any provision “purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee.” The statute’s prohibition has been held applicable to leases. Borg-Warner Ins. Fin. Corp. v. Executive Park Ventures, 198 Ga. App. 70, 71 (400 SE2d 340) (1990).
An exception exists when the intent of the parties is not to indemnify or hold harmless any party from liability for its sole negligence but to shift the risk of loss to an insurer. See Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27 (262 SE2d 794) (1980); McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496 (343 SE2d 513) (1986). This exception, taken from a rule long recognized in other jurisdictions, was first set forth in Georgia in Tuxedo Plumbing. It applies “ ‘where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain. . . .’ [Cits.]” Tuxedo Plumbing, supra at 28.
To come under this exception, therefore, the parties’ intention to make insurance coverage part of the bargain must be clearly evinced in the lease. In every case in which Georgia appellate courts have held this exception applicable, the contract specifically required one or both of the parties to purchase insurance coverage. See, e.g., Tuxedo Plumbing, supra; Vasche v. Habersham Marina, 209 Ga. App. 263, 264-265 (1) (433 SE2d 671) (1993); Whipper v. McLendon Movers, 188 Ga. App. 249 (1) (372 SE2d 820) (1988); McAbee Constr. Co., supra; Island Villa Dev. v. Bonner Roofing &c. Co., 175 Ga. App. 713 (334 SE2d 41) (1985). Moreover, in all the foreign authorities relied upon in Tuxedo Plumbing, from which the Georgia rule creating the exception was first taken, the contracts explicitly mandated insurance coverage. Id. at 28-29.
Although I agree with the majority that no “magic words” should be required, the crucial inquiry is whether the parties have made sufficiently clear their intent to shift the risk to an insurance carrier so as to invoke the exception to OCGA § 13-8-2 (b), by requiring insurance coverage. It is not this court’s function to assume such intent; when a mandatory insurance provision is absent from the contract, we may not and should not presume that the parties intended nonetheless that insurance must be provided. Central Warehouse &c. Corp. v. Nostalgia, Inc., 210 Ga. App. 15, 16-17 (1) (435- SE2d 230) (1993). This is not a blind insistence upon “magic words.”
In this case, an insurance requirement could have been inserted in the lease easily. Despite the landlord’s assertion to the contrary, however, such a provision is absent. Consequently, in my view, it is *498clear that the exception created in Tuxedo Plumbing does not apply. It follows, therefore, that here, as in Central Warehouse, supra, the exculpatory clause in the lease violates the public policy codified in OCGA § 13-8-2 (b); it is void and unenforceable as a matter of law.
Decided December 5, 1994. Long, Weinberg, Ansley & Wheeler, M. Diane Owens, Margie M. Eget, for appellants. Drew, Eckl & Farnham, Clayton H. Farnham, M. Reid Aeree, Jr., Todd A. Schweber, Mozley, Finlayson & Loggins, William D. Harrison, Bennett, Callahan & Schloegel, Michael T. Bennett, for appellees.Because no contractual prohibition against it existed, the plaintiffs did have a valid claim against the landlord, and the landlord and the “product defendants” are joint tortfeasors. Marchman & Sons, supra, teaches that plaintiffs’ claim need not have been reduced to judgment and that the release does not affect the contribution rights among joint tortfeasors. As a result, it appears to me that the trial court’s denial of the landlord’s motion for summary judgment against the “product defendants” was eminently correct. I would affirm the judgment.
I am authorized to state that Judge Johnson and Judge Ruffin join in this dissent.