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Youell v. The Cincinnati Insurance Co.

Court of Appeals of Indiana

December 28, 2018

Robert Youell and Best One Giant Tire, Inc., Appellants-Defendants,
v.
The Cincinnati Insurance Company a/s/o Greg Dotson, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable James B. Osborn, Judge Trial Court Cause No. 49D14-1708-CT-30209

          ATTORNEYS FOR APPELLANTS Thomas J. Jarzyniecki, Jr. Jennifer M. Van Dame Kightlinger & Gray, LLP Indianapolis, Indiana Crystal G. Rowe Kightlinger & Gray, LLP New Albany, Indiana

          ATTORNEYS FOR APPELLEE Catherine Siebecker Doug Fisher Law Offices The Cincinnati Insurance Company Indianapolis, Indiana

          VAIDIK, CHIEF JUDGE.

         Case Summary

         [¶1] A landlord and a tenant entered into a commercial lease that provided that the landlord would insure the building and the tenant would insure its personal property inside the building. When the property was later damaged by fire, the landlord's insurance covered the loss. The landlord's insurer later filed a subrogation action against the tenant to recover the amount paid. The tenant filed a motion for judgment on the pleadings, arguing that the landlord's agreement to obtain property insurance was an agreement to provide both parties with the benefits of insurance and expressly allocated the risk of loss in case of fire to insurance, thereby barring a subrogation action as a matter of law. The trial court denied the motion, and the tenant now appeals. We reverse and remand.

         Facts and Procedural History

         [¶2] In 2013, Greg Dotson ("Landlord") leased a commercial building on West Washington Street in Indianapolis to Robert Youell and Best One Giant Tire, Inc. (referred to collectively as "Tenant"). The Commercial Lease Agreement addressed insurance as follows:

8. Insurance
A. If the Leased Premises or any other party [sic] of the Building is damaged by fire or other casualty resulting from any act or negligence of Tenant or any of Tenant's agents, employees or invitees, rent shall not be diminished or abated while such damages are under repair, and Tenant shall be responsible for the costs of repair not covered by insurance.
B. Landlord shall maintain fire and extended coverage insurance on the Building and the Leased Premises in such amounts as Landlord shall deem appropriate. Tenant shall be responsible, at its expense, for fire and extended coverage insurance on all of its personal property, including removable trade fixtures, located in the Leased Premises.
C. Tenant and Landlord shall, each at its own expense, maintain a policy or policies of comprehensive general liability insurance with respect to the respective activities of each in the Building with the premiums thereon fully paid on or before due date, issued by and binding upon some insurance company approved by Landlord, such insurance to afford minimum protection of not less than $1, 000, 000 combined single limit coverage of bodily injury, property damage or combination thereof. Landlord shall be listed as an additional insured on Tenant's policy or policies of comprehensive general liability insurance, and Tenant shall provide Landlord with current Certificates of Insurance evidencing Tenant's compliance with this Paragraph. Tenant shall obtain the agreement of Tenant's insurers to notify Landlord that a policy is due to expire at least [ten] (10) days prior to such expiration. Landlord shall not be required to maintain insurance against thefts within the Leased Premises or the Building.

         Appellants' App. Vol. II p. 15 (emphasis added). In accordance with the lease, Landlord maintained property insurance on the building through a policy with The Cincinnati Insurance Company (CIC).

         [¶3] On August 8, 2015, a fire occurred at the building. Pursuant to Landlord's insurance policy, CIC paid Landlord $227, 653 for damages to the building. In August 2017, CIC, as subrogee of Landlord, filed a complaint against Tenant to ...


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