THE GAP, INC., APPELLANT,
v.
BRAZILIAN BEAT TOUR, INC., ETC., ET AL., APPELLEES
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The Gap, a shopping center tenant, sued its landlords and an adjacent tenant for water damage caused by negligent maintenance. The court affirmed the trial court's dismissal based on mutual waiver provisions in the lease that barred recovery for property damage covered by standard fire and extended coverage insurance.
The court held that The Gap's claims were barred by the mutual waiver provisions of the lease. Because water damage from negligent maintenance falls within the scope of fire and extended coverage insurance, The Gap waived its right to recover from the landlord and other tenants for such damage under the express terms of the lease.
[1] A lease provision waiving recovery for damage to property arising from any cause insured against under a standard fire insurance policy bars claims between landlord and t…
[2] A tenant's right to self-insure under a lease does not negate a mutual waiver of subrogation rights against the landlord for insured perils.
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Join FLexlaw to unlock all legal intelligence“Landlord and tenant each hereby waives any and all rights of recovery against the other or against any other tenant or occupant of the Complex or against the officer, employees, agents, representatives, customers and business visitors of such other party or of such other tenant or occupant of the Complex,/or loss of or damage to such waiving party or its property or the property of others under its control, arising from any cause insured against or required to be insured against under the standard form of fire insurance policy with all permissible extension endorsements covering additional perils or under any other policy of insurance carried by such waiving party in lieu thereof.”
The lease provision that created the mutual waiver of recovery rights for insured losses, which barred The Gap's claims
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Join FLexlaw to unlock all legal intelligenceThe Gap was a tenant at a shopping center and suffered water damage to its merchandise allegedly caused by negligent maintenance of common areas and a…
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SCHWARTZ, Chief Judge.
The Gap, a tenant at a shopping center, sued the landlords and the upstairs tenant for water damage to its merchandise which was allegedly caused by the negligent maintenance of the common areas and the adjacent premises. We agree with the trial court that the actions were barred by the mutual waiver provisions of the lease:
9.08 Waiver. Landlord and tenant each hereby waives any and all rights of recovery against the other or against any other tenant or occupant of the Complex or against the officer, employees, agents, representatives, customers and business visitors of such other party or of such other tenant or occupant of the Complex,/or loss of or damage to such waiving party or its property or the property of others under its control, arising from any cause insured against or required to be insured against under the standard form of fire insurance policy with all permissible extension endorsements covering additional perils or under any other policy of insurance carried by such waiving party in lieu thereof. Tenant shall obtain and furnish evidence to landlord of the waiver by Tenant’s Fire and Extended Coverage carrier of any right of subrogation against landlord. [e.s.]
9.05 Fire Insurance-Fixtures and Equipment. Tenant, at all times during the term hereof and at Tenant’s cost and expense, shall maintain in effect policies of insurance covering Tenant’s fixtures and equipment located on the demised premises, in an amount not less than Ninety (90%) Percent of their actual cash value, providing protection against any peril included within the classification “Fire and Extended Coverage”_ So long as Tenant is The Gap, Inc., Tenant may self-insure the risks set forth in this paragraph 9.05.
See Insurance Co. of N. America v. E.L. Nezelek, Inc., 480 So. 2d 1338 (Fla. 4th DCA 1985), review denied, 491 So. 2d 279 (Fla.1986); United States Fire Ins. Co. v. Norlin Industrs., Inc., 428 So. 2d 325 (Fla. 1st DCA 1983); Fairchild ex rel. State Farm Fire & Casualty Co. v. W.O. Taylor Commercial Refrigeration & Elec. Co., 403 So. 2d 1119 (Fla. 5th DCA 1981); Housing Inv. Corp. v. Carris, 389 So. 2d 689 (Fla. 5th DCA 1980); Smith v. Ryan, 142 So. 2d 139 (Fla. 2d DCA 1962). The cases cited by The Gap, which deal with the quite different problem of the validity and scope of provisions indemnifying against third party actions, do not apply. See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla.1979); University Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507 (Fla.1973).
Affirmed.
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H.T. Chittum Bayside, Inc. v. Bayside Ctr. Ltd. P'ship, 706 So. 2d 1381 (Fla. 3d DCA 1998)…PER CURIAM. Affirmed. See The Gap, Inc. v. Brazilian Beat Tour, Inc., 689 So. 2d 1205 (Fla. 3d DCA 1997).…
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BUY Direct Jewelers, Inc. v. Briar BAY Shopping Ctr., 789 So. 2d 1206 (Fla. 3d DCA 2001)…PER CURIAM. Affirmed. See The Gap, Inc. v. Brazilian Beat Tour, Inc., 689 So. 2d 1205 (Fla. 3d DCA 1997); Meyer v. Caribbean Interiors, Inc., 435 So. 2d 936 (Fla. 3d DCA 1983).…
Authorities Cited
- Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973)
- Charles POE Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla. 1979)
- Smith v. Ryan, 142 So. 2d 139 (Fla. 2d DCA 1962)
- Hous. Inv. Corp. of Fla. v. Carris, 389 So. 2d 689 (Fla. 5th DCA 1980)
- Milty A. Fairchild v. W. O. Taylor Commercial Refrigeration & Elec. Co., Inc., 403 So. 2d 1119 (Fla. 5th DCA 1981)
- U.S. Fire Ins. Co. v. Norlin Indus., Inc., 428 So. 2d 325 (Fla. 1st DCA 1983)