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September 06, 2024
Right to Subrogation Limited by Lease

Lessors Should be Entitled to Waive Insurer’s Right of Subrogation
Post 4867

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In a subrogation action, Plaintiff Philadelphia Indemnity Insurance Company (Philadelphia), as subrogee of Renaissance Realty Group, Inc. (Renaissance), appealed from the circuit court’s partial grant of defendant Norinaica Gonzalez’s motion to dismiss.

In Philadelphia Indemnity Insurance Company, a/s/o Renaissance Realty Group, Inc. v. Norinaica Gonzalez, 2024 IL App (1st) 230833, No. 1-23-0833, Court of Appeals of Illinois, First District, Sixth Division (August 23, 2024)

BACKGROUND

On September 25, 2019, Renaissance and Gonzalez entered into a written lease agreement (hereinafter “Lease”) for an apartment (“Unit 601”) in a multi-unit building located on the 1500 block of West Belmont Avenue in Chicago.

The Lease contains multiple provisions relevant to the resolution of Philadelphia’s claims. On the first page of the Lease, Unit 601 is described as the “Leased Address (Premises)” and Tenant was required to maintain the Premises in a clean, presentable and safe condition at all times.

On January 20, 2021, Philadelphia sued Gonzalez as subrogee to Renaissance. Therein, Philadelphia alleged that on August 7, 2020, a small fire started in Gonzalez’s kitchen in Unit 601, which caused “a substantial amount of smoke” and activated the building’s sprinkler system. The sprinkler system caused significant water damage to both Unit 601 and other units, totaling over $200,000.

THE INSURANCE CLAIMS

Renaissance submitted an insurance claim to Philadelphia, which paid “in excess of $50,000 to cover” repairs and lost rental income. Philadelphia alleged Gonzalez was liable to reimburse Philadelphia, as subrogee to Renaissance, for this coverage. Specifically, count I of the complaint alleged Gonzalez negligently caused the fire that resulted in the property damage. Count II alleged that Gonzalez breached the Lease because it required her to pay for any damages caused by her negligence, but she violated this term by refusing to reimburse Philadelphia.

Gonzalez moved to dismiss the complaint arguing she was an implied coinsured of Renaissance’s policy pursuant to the Illinois Supreme Court’s holding in Dix Mutual Insurance Co. v. LaFramboise, 149 Ill.2d 314 (1992), and thus could not be sued by Philadelphia in subrogation.

On June 30, 2021, Philadelphia responded, arguing in relevant part that the Lease terms demonstrated the parties’ intent not to make Gonzalez an implied coinsured.

The trial court found Philadelphia could not “seek compensation for damage beyond” Unit 601. Philadelphia moved for summary judgment regarding the damages arising from Unit 601 only, which it alleged totaled $18,831.04. The circuit court granted Philadelphia’s motion for summary judgment as to liability only on Counts I and II for damages to Unit 601, with the total of those damages to be determined at trial.

ANALYSIS

This case presents a matter of contractual interpretation, as a lease is a contract and, as such, it is governed by the rules which govern contracts generally. Where a contract’s terms are clear and unambiguous, the appellate court must enforce those terms without reference to extrinsic sources.

The key factor in determining whether the parties intended to exculpate the tenant from liability for negligently caused fire damage to the leased premises is the allocation of insurance burdens as evidenced by the lease. When the provisions of the lease either explicitly or implicitly indicate that the lessor will obtain insurance against the risk of fire loss to its building, the tenant will normally not be liable for negligently causing fire damage to that building unless the parties’ contrary intent is clear. Such a rule gives effect to the parties’ probable and customary intent that the landlord is to look to the insurance he has agreed to procure for indemnification for fire loss.

The Court of Appeals found that Philadelphia and Gonzalez did not intend for Gonzalez to be generally liable for negligently caused fire damage outside of Unit 601. If the parties had intended for Gonzalez to be liable for negligent conduct in other areas besides Unit 601, they would have done so with lease terms making her liable for negligently causing damage to the “property,” “common area,” or “elsewhere in the building.” The Lease does not do so.

Philadelphia’s final claim is that equitable principles dictate that it should have a right to recover on a subrogation claim against Gonzalez. This argument fails because Philadelphia cannot overcome a core tenet of the equitable remedy of subrogation-a subrogee can have no greater right than the subrogor and can enforce only such rights as a subrogor could enforce per the Lease Renaissance has no right to recover against Gonzalez for damages outside of Unit 601, and, therefore, neither does Philadelphia as subrogee to Renaissance’s rights.

Because the Lease shows the parties’ intended Gonzalez not to be liable for damages outside of Unit 601the circuit court’s limitation on Philadelphia’s recoverable damages was affirmed.

ZALMA OPINION

Suing, in subrogation, a tenant of an insured generally causes problems between insured’s and the insurer. For that reason most commercial property policies include a provision that the insured may waive the insurer’s right to subrogation against a tenant. Since the landlord did not waive the court made a Solomon-like decision and only held her responsible for damage to her unit in the building. The Court of Appeals did justice and the insured and its tenant resolved the dispute. Many courts, including Illinois, include an exclusion not written, that Philadelphia’s insurance was issued for the mutual benefit of the insured and the tenant.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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February 21, 2025
No Coverage for Criminal Acts

Concealing a Weapon Used in a Murder is an Intentional & Criminal Act

Post 5002

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In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.

FACTUAL BACKGROUND

Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...

00:08:09
February 20, 2025
Electronic Notice of Renewal Sufficient

Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000

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Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.

In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.

The court’s reasoning focused on two main points:

1 whether the ...

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February 19, 2025
Post Procurement Fraud Prevents Rescission

Rescission in Michigan Requires Preprocurement Fraud
Post 4999

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Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission

This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).

In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.

The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...

00:07:58
February 07, 2025
From Insurance Fraud to Human Trafficking

Insurance Fraud Leads to Violent Crime
Post 4990

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CRIMINAL CONDUCT NEVER GETS BETTER

In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.

FACTS

In September 2020, Givens matched with J.C. on the dating app “Tagged.” J.C., who was 20 years old at the time, had known Givens since childhood because their mothers were best friends. After matching, J.C. and Givens saw each other daily, and J.C. began working as a prostitute under Givens’s direction.

Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...

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February 06, 2025
No Mercy for Crooked Police Officer

Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989

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Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.

In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.

FACTUAL BACKGROUND

On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...

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February 05, 2025
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE

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To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988

EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE

In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.

FACTS

The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not

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