Southern Trust Insurance v. Center Developers, Inc.

Smith, Judge,

concurring specially in part and dissenting in part. I concur in certain portions of the majority’s judgment, but for different reasons. I respectfully dissent as to other portions of the ma*223jority opinion.

1. I agree with the majority’s holding in Division 3, albeit for a different reason: Glazer v. Crescent Wallcoverings, 215 Ga. App. 492 (451 SE2d 509) (1994), is inapplicable to the May Company claim; and summary judgment was therefore inappropriate as to the May Company.

The “loss and damage” clause in the May Company lease provides that “subject to the provisions of Section 11.3 [the ‘waiver of subrogation’ clause], tenant covenants and agrees that all personal property of tenant . . . which is on the demised premises shall be so at tenant’s sole risk (to the extent permitted by law), except for damage thereto resulting from landlord’s negligence, wilful act or default under this lease.” This clause shows an intent to hold the landlord liable for its own negligence, but makes the clause “subject to” the “waiver of subrogation” clause. This conflict also creates an issue of fact regarding the parties’ intent, and that issue of fact makes a grant of summary judgment improper.

The majority also holds in Division 3, however, that the Interested Underwriters and the London Institute, the May Company’s insurers, are non-parties to this appeal. Majority opinion at 218-219. Appellee concedes that this is incorrect, and I would hold that summary judgment was inappropriate as to them for the reasons stated above and in Division 3, infra.

2. I also agree with the majority’s disposition of Case Nos. A94A2583 and A94A2590, dealing with the Argus and Finish Line leases. Summary judgment was improper in these cases because the trial court appears to have mistakenly inferred an intent to shift the risk of fire loss to insurance; it appears to have made that inference from the lease requirement that the tenants purchase liability insurance. It also appears from the record, however, that the trial court was under the same misapprehension as to most of the leases.

3. I dissent as to Division 1 of the majority opinion.

(a) OCGA § 13-8-2 (b) provides in pertinent part that, as a matter of public policy, any provision in an agreement relating to the construction or maintenance of a building that purports to indemnify the promisee for damages resulting from the promisee’s sole negligence is unenforceable. However, it has long been the rule in Georgia that “ ‘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.’ [Cits.]” Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (262 SE2d 794) (1980).

Until recently, cases interpreting OCGA § 13-8-2 (b), as applied *224to leases, inferred the intent “to look solely to the insurance” only where the purchase of such insurance was required under a lease. In Glazer, a majority of this court held that an explicit “waiver of subrogation” clause will usually suffice to show such an intent. Although I dissented in Glazer, I recognize that the rationale in Glazer must be applied, if applicable, in this case. Despite the presence of “waiver of subrogation” clauses, it is apparent to me that several of the leases in this case not only do not evince an intent to look solely to insurance to cover certain losses, they fairly demonstrate the parties’ intent to limit the application of the “waiver of subrogation” clause. For that reason, I cannot agree with the majority that any of these cases is controlled by the holding in Glazer.

(b) All of these leases have a “loss and damage” clause as well as a “waiver of subrogation” clause. In four leases, the form “loss and damage” clause is intact. Its language holds the landlord harmless from liability based on claims of the tenant for damage to the tenant’s property, including subrogation claims by the tenant’s insurance carrier, “unless such damage shall be caused by the willful act or gross neglect of landlord.” (Emphasis supplied.) The language in these three leases appears to me to except damage caused by wilful acts or gross neglect of the landlord from the operation of the waiver of subrogation clause. A question of fact remains for jury determination whether the damages sought here were the result of such “gross neglect.” I therefore cannot agree that summary judgment was appropriate.

(c) Certain other leases have typewritten phrases interlined into the form “loss and damage” clause. In the Mens Wear lease, for instance, typewritten language was inserted into the first sentence, so that it now reads: “Landlord shall not except through its own negligence or the negligence of its employees, agents or assigns, be liable for any damage to property of tenant or of others located on the premises. . . .” In the Shoe Secrets lease, a sentence was added at the end of the “loss and damage” clause. The sentence reads as follows: “The foregoing to the contrary notwithstanding, landlord shall not be relieved of liability in the event of loss or damage caused by the acts of negligence of the landlord. 8.02 (a) — See 6 on rider.” Number 6 on the rider is an entirely new “waiver of subrogation” clause that appears to waive subrogation only as to the insurance the lease requires the tenant to purchase — i.e., liability insurance and plate glass insurance. These insertions create a conflict between the “loss and damage” clause and the form “waiver of subrogation” clauses, and that conflict undermines the inference that the parties intended to exculpate the landlord from liability for its own negligence and shift the risk of loss to insurance. We may not consider the form “waiver of subrogation” clauses in isolation; we must endeavor *225to construe these leases as a whole, and we must give them constructions that will honor all their parts and the intent of the parties. OCGA § 13-2-2 (4); see Alimenta Processing Corp. v. South Ga. Pecan Co., 185 Ga. App. 330 (364 SE2d 84) (1987). This is particularly true in cases where typewritten provisions have been inserted into form leases. In such cases, the typewritten provisions control over the preprinted language. OCGA § 13-2-2 (7); Ft. Oglethorpe Assoc. v. Hails Constr. Co., 196 Ga. App. 663, 664 (2) (396 SE2d 585) (1990). In these cases, it is at least true that a genuine issue of material fact exists regarding whether the form “waiver of subrogation” clause was intended to control, or whether the typewritten provisions holding the landlord liable for its own negligence was intended to limit the waiver of subrogation for claims involving the landlord’s negligence. In my view, summary judgment was therefore inappropriate as to these leases as well.

Decided February 28, 1995 Reconsideration denied March 31, 1995 McPhail & Marmur, Jon B. McPhail, Sari B. Marmur, for appellants. Duncan & Mangiafico, George E. Duncan, Jr., Leslie P. Becknell, for appellees.