concurring specially.
I concur in the majority opinion except that it does not expressly rule on the question addressed in Division 3 (c) of the dissent. Applying the principles of contract interpretation cited in the dissent and other applicable rules of construction including others contained in OCGA § 13-2-2, there is no conflict in the leases identified such that summary judgment was improper.
Reading the loss and damage provision together with the waivers of subrogation provision in the Men’s Wear lease reveals that the parties intended the waivers to be effective only to the extent of insurance. Landlord remained liable for its own negligence or that of its employees, agents, or assigns, to the extent it was not covered by insurance. By inserting the typed exception, the parties were merely explicitly recognizing the public policy expressed in OCGA § 13-8-2 (b) which, as construed by the Supreme Court in Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (1) (262 SE2d 794) (1980), allows the shifting of the risk of loss to the insurance company. The risk remains the landlord’s to the extent it is not cast upon the insurer, which is being paid a premium to carry it. Where the loss from negligence exceeds the amount of coverage, the landlord does not, and cannot, avoid it by contract with the tenant. An attempt to do so would violate OCGA § 13-8-2 (b), which prohibition the parties expressly honored.
The typed additional language in the Shoe Secrets lease has the same effect; the parties just stated it differently. The printed all-encompassing loss and damage provision is limited by the typed exception which states that the landlord is not relieved of liability for its negligent acts. Reference is then immediately made to the rider containing a waiver of subrogation provision, which protects tenant from any right of recovery of the landlord subrogated to the landlord’s insurer for losses caused by the tenant. The standard printed “waivers of subrogation” provision waives the rights of recovery of the parties, and by implication the subrogated insurers, to the extent of insurance coverage. Reading all of this together, it is plain that the landlord’s liability for negligence remains only to the extent not covered by insurance.
I am authorized to state that Presiding Judge Pope, Judge Andrews, Judge Johnson and Judge Ruffin join in this special concurrence.