United States Court of Appeals,
Eleventh Circuit.
No. 95-8371.
MACON-BIBB COUNTY INDUSTRIAL AUTHORITY, Plaintiff-Appellant,
v.
NORD BITUMI, U.S., INC., Defendant-Appellee.
March 13, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. CIV-89-95-2-MAC(CHW), Claude W. Hicks,
Jr. Magistrate Judge.
Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL*, Senior
Circuit Judges.
PER CURIAM:
This is an alleged subrogation claim by the fire insurer of
a property owner against the allegedly negligent tenant of the
property. On consent of the parties, United States Magistrate
Judge Claude W. Hicks, Jr. decided the case. See 28 U.S.C. §
636(c)(1). (Section 636(c)(3) allows appeal from the magistrate
judge's judgment to be taken directly to this Court). Judge Hicks
held that under the terms of the lease, the parties agreed to a
waiver of subrogation and entered a summary judgment for the
defendant. We affirm, essentially for the reasons set forth in the
Order from which this appeal is taken, the material parts of which
are incorporated herein as an Appendix. 1 See Tuxedo Plumbing &
*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
1
There has been a suggestion that our decision should be
stayed pending the Georgia Supreme Court's consideration of
Southern Trust Insurance Co. v. Center Developers, Inc., 217
Heating Co. v. Lie-Nielson, 245 Ga. 27, 262 S.E.2d 794, 795 (1980).
AFFIRMED.
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
GEORGIA MACON DIVISION
Macon-Bibb County Industrial Authority, Plaintiff,
v.
Nord Bitumi, U.S., Inc., Defendant.
Civil Action No. 89-95-2-MAC(CWH)
Before the U.S. Magistrate Judge
ORDER
. . . . .
On April 1, 1984, plaintiff and defendant entered into a
five-year lease and option agreement. On October 1, 1984, while
the defendant was in possession of the leased premises, a fire
damaged the property; the INDUSTRIAL AUTHORITY contends that this
fire was caused by the negligence of defendant NORD BITUMI and/or
its employees. On April 9, 1985, plaintiff was paid $104,955 for
its loss by its insurer, St. Paul Surplus Lines Insurance Company,
pursuant to an agreement styled as a loan receipt. The total loss
was $109,955; there was a $5,000 insurance deductible.
Thereafter, St. Paul caused this lawsuit to be filed in the name of
its insured, MACON-BIBB COUNTY INDUSTRIAL AUTHORITY, seeking to
recover from NORD BITUMI through its subrogation rights the money
it paid to its insured for damages resulting from the fire.
Ga.App. 215, 456 S.E.2d 608 (1995). It seems more efficient to
issue this opinion and let the matter pend on a Petition for
Rehearing if the parties are so advised.
In its motion for summary judgment, defendant NORD BITUMI,
U.S., INC. contends that under the language of the lease the
plaintiff waived its subrogation rights. The INDUSTRIAL AUTHORITY
disagrees.
The lease in question contains the following relevant
provisions:
10(a) Lessor's Insurance. Lessor agrees that it will, at its
own expense, except as hereinafter provided, keep the premises
insured against loss or damage by fire with extended coverage
endorsement in an amount sufficient to prevent Lessor from
being a co-insurer under the terms of the applicable policies,
but, in any event, in an amount not less than eighty percent
(80%) of the full replacement value of the property of which
the premises are a part as determined from time to time. If,
during the term of this Lease or any renewal thereof, the cost
of Lessor's fire and extended coverage insurance should be
increased as a result of Lessee's occupancy, then Lessee shall
pay such increase.
10(b) Lessee's Insurance. Lessee agrees to maintain, at its
own expense, such fire and extended coverage insurance on
Lessee's personal property and improvements located on the
premises, in amounts as it may deem advisable....
12(a) Indemnity by Lessee. Lessee agrees to indemnify and
hold harmless Lessor from and against all claims of whatever
nature arising from any act, omission, or negligence of
Lessee, or Lessee's contractors, licensees, agents or
employees, or arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any
person, occurring during the terms of this Lease in or about
the premises, including the streets and roads upon the
property of Lessor used by Lessee for access to and from the
premises, or arising from any accident, injury or damage
occurring outside the premises where such accident, damage or
injury results, or is claimed to be resulted, from any act or
omission on the part of the Lessee or its contractors,
licensees, agents or employees....
12(c) Liability Insurance Requirements. For the foregoing
purpose, the Lessee agrees during the term hereof to maintain
adequate public liability and other insurance with reputable
insurance companies approved by Lessor, and upon request, to
furnish Lessor with certificates of insurance evidencing such
fact. The insurance coverage to be maintained by Lessee shall
be as follows:
(i) Comprehensive general liability insurance against
claims for bodily injury, death and property damage
occurring in or about the premises, affording minimum
single limit protection of One Hundred Thousand Dollars
($100,000) with respect to personal injury or death and
property damage occurring or resulting from one
occurrence; and
(ii) Workmen's Compensation and employer's liability
insurance in accordance with the statutory requirements
of the State of Georgia.
This is a diversity case; thus, under Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), Georgia
law is applied to decide the substantive issues. Under Georgia
law, the construction of a contract is a question of law for the
court. O.C.G.A. § 13-2-1. See also Early v. Kent, 215 Ga. 49, 108
S.E.2d 708 (1959) (where the terms of the contract are plain and
unambiguous, construction is for the court rather than the jury)
and Sims' Crane Service, Inc. v. Reliance Ins. Co., 514 F.Supp.
1033, 1036 (S.D.Ga.1981) (construction and interpretation of
written contract is a matter of law for the court and properly
subject to disposition on summary judgment), aff'd 667 F.2d 30
(11th Cir.1982). (Note: subsequent history, not in the original).
Under Georgia law, where parties to a business transaction
mutually agree that insurance will be provided as a part of the
bargain, such agreement must be construed as providing mutual
exculpation to the bargaining parties who must be deemed to have
agreed to look solely to the insurance in the event of loss and not
to liability on the part of the opposing party. Tuxedo Plumbing &
Heating Co. v. Lie-Nielson, 245 Ga. 27, 262 S.E.2d 794, 795 (1980).
See Pettus v. APC, Inc., 162 Ga.App. 804, 293 S.E.2d 65 (1982);
Central Warehouse & Development Corp. v. Nostalgia, Inc., 210
Ga.App. 15, 435 S.E.2d 230, 232 (1993). See also Frank Briscoe Co.
v. Georgia Sprinkler Co., 713 F.2d 1500, 1504 (11th Cir.1983).
Upon review of all matters brought to the attention of the
court by counsel for the parties, the undersigned is convinced,
particularly in light of the provisions of clause ten set out
above, that under Georgia law there has been a waiver of
subrogation by the parties in this case. The court specifically
finds from the lease agreement itself that the parties mutually
agreed to provide insurance coverage as a part of their bargain.
The provisions of the lease speak for themselves and are
unambiguous; both the INDUSTRIAL AUTHORITY and NORD BITUMI
contemplated that in the event of fire damage such as that which
occurred in October of 1984, they would look to the insurance
coverage required by the terms of the lease to reimburse them for
any fire loss. Indeed, NORD BITUMI was even required under the
agreement (as part of the bargain) to pay for any increase in the
fire and extended coverage insurance on the premises resulting from
its occupancy.2
Plaintiff's argument that the indemnity clause (clause twelve
set out above) shows that the parties intended for the plaintiff to
still be able to pursue negligence claims against the defendant for
damages to the premises is unavailing. The presence of an
indemnification clause in a contract has not been found to override
2
Under O.C.G.A. § 13-2-2, parol evidence is inadmissible to
add to, take from, or vary a written contract; words in the
contract generally bear their usual and common significance;
and, the construction which will uphold a contract in whole and
in every part is preferred. See also Hornsby v. Holt, 257 Ga.
341, 359 S.E.2d 646, 648 (1987) (under the parol evidence rule,
in the absence of fraud, accident, or mistake, this court is not
to go beyond the written terms of the contract to ascertain the
parties intent).
a waiver of subrogation created as a result of a mutual insurance
requirement. See cases cited above, notably Tuxedo.
To support its argument that there was no "mutual exculpatory
agreement," plaintiff INDUSTRIAL AUTHORITY relies heavily on the
decision of the Court of Appeals of Georgia in Alimenta Processing
Corp. v. South Georgia Pecan Co., 185 Ga.App. 330, 364 S.E.2d 84
(1987). In that case, the court found "a contrary intent ... so
obviously expressed" in the lease contract between the parties.
However, unlike Alimenta, this is not a case "where a contrary
intent is so obviously expressed." Moreover, as noted by the
dissent in Alimenta, the presence in Tuxedo of hold harmless
language similar to the Alimenta release provisions relied upon by
the majority in Alimenta, did not alter the Supreme Court of
Georgia's decision in Tuxedo. See Alimenta, supra, 364 S.Ed.2d at
86-87 (McMurray, J., dissenting) (noting also that the language in
question further demonstrates the parties' intention to look to the
insurance for protection against loss).
A careful reading of paragraphs 12(a) and 12(c) of the lease
contract herein reveals these provisions were written to protect
the plaintiff from third party claims arising from the defendant's
(and defendant's agent's) negligence "in or about" and "outside"
the premises. The provision in question does not specifically
mention any recovery for fire damage occurring to the premises
itself; it deals only with the protection from third party
negligence claims. See Vasche v. Habersham Marina, 209 Ga.App.
263, 433 S.E.2d 671, 673 (1993) wherein the court distinguished
between provisions in a rental agreement covering damage caused by
a marina's negligence in launching and retrieving boats and loss
occasioned by the theft of boats.
In addition, paragraph 12(c) of the lease agreement entitled
Liability Insurance Requirements (emphasis added) evinces the
intention of the parties that coverage afforded by liability
insurance coverage rather than the parties themselves would pay for
any losses covered by liability insurance. See McAbee Construction
Co. v. Georgia Kraft Co., 178 Ga.App. 496, 343 S.E.2d 513, 514-15
(1986). This dovetails nicely with paragraph 10(a) which reflects
the same intention insofar as fire insurance coverage is concerned.
Under the circumstances outlined above, MACON-BIBB COUNTY
INDUSTRIAL AUTHORITY cannot recover from NORD BITUMI, U.S., INC.
for liability mutually agreed by the parties to be covered by
insurance, and St. Paul Surplus Lines Insurance Company suing in
the name of the INDUSTRIAL AUTHORITY under the terms of the loan
receipt given upon payment of insurance proceeds cannot have rights
superior to its insured. See Tuxedo, supra, 262 S.E.2d at 795.
. . . . .
SO ORDERED, this 8th day of MARCH, 1995.
/s/ Claude W. Hicks, Jr.
United States Magistrate Judge