Cincinnati Ins. v. Control Serv. Technology , 111 Ohio App. 3d 801 ( 1996 )

I concur fully in the opinion of this court, which I consider to be well reasoned. I write separately only to identify a crucial step in my reasoning process, not inconsistent with anything expressed in the opinion of the court, that leads me to conclude that paragraph j. of the lease between the parties need not be construed as a waiver or limitation of the lessee's liability for fire damage to the premises occasioned by its negligence.

Because a contractual provision relieving a party of liability for its own negligence is in derogation of common law, a paragraph in a contract should not lightly be construed to so provide. Ambiguity should be resolved against the party seeking to be relieved from the consequences of its negligent conduct. If the provision in the contract can be reasonably construed otherwise, no waiver should be found.

In my view, paragraph j has an apparent purpose that can be given full force and effect without construing it as a waiver of the lessee's liability for its own negligence. That purpose is to provide for the continuation of the lease if fire damage is not so extensive that it would be commercially impractical to continue the lease. In other words, even though the fire damage to the premises is the result of the lessee's negligence, to which the lessee will have to respond in damages, it may be important to the lessee to be able to force the lessor to restore the premises, so that the lease can continue, rather than simply to pocket the damages paid by the lessee and walk away from the lease, allowing it to terminate in view of the unsuitability of the premises. Market conditions may have resulted in the leased space having a value substantially in excess of the rent payable under the lease. The location may have great commercial value to the tenant, again making the space worth substantially more than the rent payable. Paragraph j permits the tenant to require the landlord to restore the premises, something the landlord would not otherwise be required to do, and this may be of value to the tenant independently of the tenant's obligation, or lack of obligation, to respond in damages for a fire caused by the tenant's negligence.

In this case, unlike in United States Fire Ins. Co. v.Phil-Mar Corp. (1956), 166 Ohio St. 85, 1 O.O.2d 212,139 N.E.2d 330, upon which the lessee principally relies, the apparent purpose of the lease provision relied upon by the lessee is not necessarily inconsistent with liability by the lessee for fire damage to the premises caused by its own negligence. Therefore, the reasoning expressed in Phil-Mar does not apply, and the provision in the case before us need not be construed as being irreconcilable with the lessee's liability for its negligence.

GRADY, J., concurs in the foregoing concurring opinion.