Beveridge v. Savage , 285 Neb. 991 ( 2013 )

Nebraska Advance Sheets
BEVERIDGE v. SAVAGE 991
Cite as 285 Neb. 991R eid Beveridge, appellant, v. John Savage
and Jill Savage, appellees.
___ N.W.2d ___
Filed May 24, 2013. No. S-12-1007.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. Contracts. Contract interpretation presents a question of law.
3. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
4. Contracts: Insurance: Subrogation: Presumptions: Landlord and Tenant:
Negligence. Absent an agreement to the contrary, the law presumes that a tenant
is coinsured under a landlord’s fire insurance policy and that, therefore, a land-
lord’s insurer cannot maintain a subrogation action against a tenant for damage to
the insured property that is caused by the tenant’s negligence.
5. Contracts: Insurance: Landlord and Tenant. When fire insurance is provided
for a dwelling, it protects the insurable interests of all joint owners, including
the possessory interests of a tenant absent an express agreement by the latter to
the contrary.
6. Contracts: Words and Phrases. A contract is ambiguous when a word, phrase,
or provision in the contract has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings.
7. Contracts. Ambiguous contracts are construed against the drafter.
Appeal from the District Court for Cass County: Randall L.
R ehmeier, Judge. Affirmed.
Christopher A. Sievers and Joseph F. Gross, Jr., of
Timmermier, Gross & Prentiss, for appellant.
T. Cody Farrens and Douglas Phillips, of Klass Law Firm,
L.L.P., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
This case presents the question whether the terms of a
lease between a landlord and tenant permit an action by the
Nebraska Advance Sheets
992 285 NEBRASKA REPORTS
landlord’s insurer against the tenant for fire damages allegedly
caused by the tenant’s negligence.
Reid Beveridge, a landlord, and John Savage, a tenant,
signed a lease agreement for a rental property that required
him to obtain a “liability and renter[’]s insurance [policy]
($100,000) at Tenant’s expense.” The house was damaged by
fire caused by a child using a lighter. Beveridge’s insurer paid
for the loss.
This subrogation action was brought against John Savage
and Jill Savage in Beveridge’s name. The district court con-
cluded the Savages were coinsureds under Beveridge’s fire
insurance policy and that neither Beveridge nor the insurer
could bring a subrogation action against the Savages. It dis-
missed the action, and Beveridge appeals. We affirm.
SCOPE OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Swift v. Norwest Bank-Omaha West, ante p. 619, ___
N.W.2d ___ (2013).
[2,3] Contract interpretation presents a question of law.
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149(2012). We independently review questions of law decided by
a lower court. Id.FACTS
Beveridge owned a house in Plattsmouth, Nebraska.
Beveridge and John Savage executed a residential lease for the
property. The lease provided:
[5.]a. Tenant agrees to promptly repair at Tenant’s
expense any damage to the property which may occur by
reason of his/her negligence . . . .
b. Specifically, but not by the way of limitation dam-
age caused by failure to properly operate or monitor the
operation of heating and/or air conditioning system and
appliance is the responsibility of the Tenant.
Nebraska Advance Sheets
BEVERIDGE v. SAVAGE 993
Cite as 285 Neb. 9916. Tenant is responsible to maintain the entire prop-
erty . . . . The Tenant will pay the first fifty dollars
($50.00) of all repairs. The maximum amount that may
be charged to the tenant during one anniversary year is
$200.00 unless the repairs were needed due to Tenant
negligence. . . .
....
13. The Tenant shall provide a liability and renter[’]s
insurance [policy] ($100,000) at Tenant’s expense.
(Emphasis in original.) The Savages obtained a renter’s protec-
tion policy of insurance. Beveridge was insured by a separate
policy on the property.
The Savages lived in the house with Jill Savage’s 6-year-old
son. While left unattended in the basement, the child used a
lighter to set a couch on fire, which caused significant damage
to the house. Beveridge’s insurer paid $161,545.01 to cover
the full cost of reconstruction, plus $7,824.18 for lost rent.
This subrogation action was brought against the Savages in
Beveridge’s name.
Both parties moved for summary judgment. In entering
summary judgment in favor of the Savages, the district court
relied upon Tri-Par Investments v. Sousa, 268 Neb. 119, 680
N.W.2d 190 (2004). The court concluded that the lease provi-
sion requiring the tenant to obtain $100,000 in liability and
renter’s insurance did not permit Beveridge or his insurer to
bring a subrogation action against the Savages. It concluded
that the Savages were coinsureds under Beveridge’s fire insur-
ance policy and that the insurer could not subrogate against its
coinsureds. The court sustained the Savages’ motion for sum-
mary judgment and dismissed the action.
Beveridge moved to alter or amend the judgment, the district
court overruled the motion, and Beveridge appealed. Pursuant
to statutory authority, we moved the case to our docket. See
Neb. Rev. Stat. § 24-1106 (Reissue 2008).
ASSIGNMENT OF ERROR
Beveridge assigns, restated and summarized, that the district
court erred in granting the Savages’ motion for summary judg-
ment, because the court incorrectly concluded the lease did not
Nebraska Advance Sheets
994 285 NEBRASKA REPORTS
contain an express provision allowing the landlord’s insurer to
bring a subrogation action against the tenant.
ANALYSIS
The issue is whether the terms of the lease expressly rebut
the presumption that the landlord and tenant are coinsureds
under the landlord’s fire insurance policy.
Beveridge claims that John Savage agreed to be held
responsible for damages caused by negligence and expressly
agreed to purchase insurance to protect against “those perils.”
See brief for appellant at 8. He asserts that the language of
the lease stating that “[t]he Tenant shall provide a liabil-
ity and renter[’]s insurance [policy] ($100,000) at Tenant’s
expense” required Savage to purchase insurance for fire and
other perils.
He claims that paragraphs 5, 6, and 13 of the lease agree-
ment dispense with any uncertainty by specifically outlining
that the tenant is responsible for damage caused by the ten-
ant’s negligence. And more important, the lease requires the
tenant to purchase separate insurance. Because the tenant was
required to obtain separate insurance, Beveridge claims the ten-
ant is not a coinsured under his policy.
The Savages assert that whether a right of subrogation
exists turns on whether the lease contains “an ‘express agree-
ment’ transferring the risk of loss in the event of a fire to the
Tenants.” See brief for appellees at 3. They claim the lease
does not meet this requirement because it does not specifically
mention or address a right of subrogation. They argue that the
lease does not contain an express agreement transferring the
risk of loss to the tenant in the event of a fire.
Our decision in Tri-Par Investments v. Sousa, 268 Neb. 119,
680 N.W.2d 190 (2004), is controlling. In Tri-Par Investments,
the landlord’s insurer brought a subrogation action against the
tenant for negligence and breach of lease, seeking to recover
for damages caused by fire and loss of rent. At the time of
the fire, Colette Sousa was renting a house from Tri-Par
Investments, L.L.C. (Tri-Par), which maintained a homeown-
er’s policy of insurance on the house. Its insurer paid for most
Nebraska Advance Sheets
BEVERIDGE v. SAVAGE 995
Cite as 285 Neb. 991of the fire damage to the home and, thereafter, initiated a sub-
rogation action in the name of Tri-Par against Sousa. The peti-
tion alleged that Sousa was negligent in failing to supervise
several minor children and prevent one of the minor children
from playing with or using matches or a lighter. It also alleged
that Sousa breached the lease by failing to pay for or repair
the fire damage and by failing to take care of the buildings and
premises and keep them safe from danger of fire. The district
court determined that for subrogation purposes, Sousa and
Tri-Par were coinsureds, and because an insurer has no subro-
gation rights against its own insured, the court granted Sousa’s
motion for summary judgment to the extent of the insurer’s
claim for subrogation.
[4,5] In affirming the district court’s order, we formally
adopted the rule from Sutton v. Jondahl, 532 P.2d 478 (Okla.
App. 1975): “[A]bsent an agreement to the contrary, the law
presumes that a tenant is coinsured under a landlord’s fire
insurance policy and that therefore, a landlord’s insurer cannot
maintain a subrogation action against a tenant for damage to
the insured property that is caused by the tenant’s negligence.”
Tri-Par Investments, 268 Neb. at 124, 680 N.W.2d at 195
(citing Sutton, supra). When fire insurance is provided for a
dwelling, it protects the insurable interests of all joint owners,
including the possessory interests of a tenant absent an express
agreement by the latter to the contrary. Tri-Par Investments,
supra; Sutton, supra.We pointed out that the Sutton rule prevents landlords
from engaging in gamesmanship when drafting leases by
providing them the necessary incentive, if they so desire, to
place express subrogation provisions in their leases. The lease
required Sousa to repair all damages done to the premises or
pay for the same, keep the buildings free from danger of fire,
and return the property in a condition as good as it was when
received. But there was no express provision in the lease that
placed the tenants on notice that they must obtain insurance
coverage for the realty if they wished to protect themselves
from personal liability in the event they negligently started
a fire. We held that Sousa and her landlord were implied
Nebraska Advance Sheets
996 285 NEBRASKA REPORTS
coinsureds for purposes of subrogation and that the landlord
could not maintain a subrogation action against Sousa on
behalf of the insurer.
If there is a clear provision in a lease requiring the tenants
to obtain fire insurance for the realty, tenants will be on notice
that they must obtain insurance coverage for the realty if they
wish to protect themselves from personal liability in the event
they negligently start a fire. See Buckeye State Mut. Ins. Co. v.
Humlicek, 284 Neb. 463, 822 N.W.2d 351 (2012). On the other
hand, if there is not such a provision in the lease, then tenants
do not need to obtain separate insurance coverage and can rely
on the fire insurance obtained by the landlord. Id.With these principles set forth, we examine the lease in the
case at bar to determine if it expressly provided that for pur-
poses of fire insurance covering the premises, Beveridge and
the Savages were not coinsureds under Beveridge’s fire insur-
ance policy. The interpretation of a lease is a question of law
that we decide independently of the district court. See Blakely
v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
To rebut the presumption, the lease must expressly require the
tenant to obtain fire insurance on the realty.
[6,7] The lease required Savage to obtain a “liability and
renter[’]s insurance [policy] ($100,000) at Tenant’s expense.”
“Liability insurance describes a wide variety of different insur-
ance coverages.” 1 Steven Plitt et al., Couch on Insurance 3d
§ 1:34 at 1-68 (2009). The lease does not state what “liability”
is to be covered. Therefore, it is not clear as to the tenant’s
obligations and what liability the tenant is to insure. A contract
is ambiguous when a word, phrase, or provision in the contract
has, or is susceptible of, at least two reasonable but conflicting
interpretations or meanings. Bedore v. Ranch Oil Co., 282 Neb.
553, 805 N.W.2d 68 (2011). The requirement that the tenant
obtain liability insurance is ambiguous as to whether the tenant
is to obtain fire insurance or is a coinsured under the land-
lord’s fire insurance policy. Ambiguous contracts are construed
against the drafter. See Brockley v. Lozier Corp., 241 Neb.
449, 488 N.W.2d 556 (1992). Accordingly, the lease’s require-
ment that the tenant obtain liability insurance is insufficient to
Nebraska Advance Sheets
BEVERIDGE v. SAVAGE 997
Cite as 285 Neb. 991overcome the presumption that the tenant is a coinsured under
the landlord’s fire insurance policy.
The lease also required the tenant to obtain renter’s insur-
ance. “Renter’s insurance is a ‘contents’ policy which cov-
ers tenant’s possessions, such as furniture, appliances, per-
sonal belongings, and household goods.” Aleatra P. Williams,
Insurers’ Rights of Subrogation Against Tenants: The Begotten
Union Between Equity and Her Beloved, 55 Drake L. Rev. 541,
571 (2007). “However, renter’s insurance does not typically
cover the structure of the leased premises.” Id. at 572.
The lease provision requiring the tenant to obtain renter’s
insurance did not require the tenant to insure the building
against loss by fire. The lease’s requirement that the tenant
obtain renter’s insurance is insufficient to overcome the pre-
sumption that a tenant is a coinsured under the landlord’s fire
insurance policy.
Finally, there is no lease provision stating that Beveridge or
his insurer had a right of subrogation against the Savages for
damages caused by fire as a result of negligence. There was
no provision which gave the tenant notice that he must obtain
insurance coverage for the realty in the event his negligence
caused damage to the house by fire. Tenants reasonably expect
that the owner of the building will provide fire insurance pro-
tection for the realty on both of their behalves. See Buckeye
State Mut. Ins. Co. v. Humlicek, 284 Neb. 463, 822 N.W.2d
351 (2012).
In the case at bar, the provisions of the lease were insuf-
ficient to overcome the presumption that the Savages were
coinsureds under Beveridge’s fire insurance policy. Because
the Savages were coinsureds, Beveridge and his insurer cannot
bring a subrogation action against them.
An appellate court will affirm a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Swift v. Norwest Bank-Omaha West, ante p. 619, ___
N.W.2d ___ (2013). There is no issue of material fact, and the
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998 285 NEBRASKA REPORTS
Savages are entitled to judgment as a matter of law. There is
no merit to any of Beveridge’s assigned errors.
CONCLUSION
Because the terms of the lease do not overcome the pre-
sumption that the tenant is coinsured under the landlord’s fire
insurance policy, Beveridge and his insurer cannot bring a sub-
rogation action against the Savages. The district court did not
err in sustaining the Savages’ motion for summary judgment.
We affirm the judgment of the district court.
Affirmed.