Safeco Insurance Companies v. Weisgerber

767 P.2d 271, 115 Idaho 428, 1989 Ida. LEXIS 2
CourtIdaho Supreme Court
DecidedJanuary 16, 1989
Docket17418
StatusPublished
Cited by20 cases

This text of 767 P.2d 271 (Safeco Insurance Companies v. Weisgerber) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Safeco Insurance Companies v. Weisgerber, 767 P.2d 271, 115 Idaho 428, 1989 Ida. LEXIS 2 (Idaho 1989).

Opinions

HUNTLEY, Justice.

Safeco Insurance Companies (Safeco) brought a subrogation action against Chris Weisgerber to recover amounts paid to Stanley and Anita LaFrenz on account of a fire allegedly caused by the negligence of Chris Weisgerber, the tenant in a residence rented to him by the LaFrenzes. Weisger-ber moved for summary judgment upon the ground that a landlord’s insurer has no right of subrogation against a negligent tenant. The district court granted summary judgment to defendant. Safeco appeals. We affirm.

I.

On December 23, 1983, a home owned by the LaFrenzes and rented to Weisgerber was damaged by fire. The LaFrenzes possessed a general homeowner’s policy issued by Safeco. Following the fire Safeco paid $28,762.08 for repairs to the house and replacement or compensation for personal property damaged or destroyed in the fire.

The parties to the rental agreement do not dispute the fact that they never mentioned the question of insuring the premises against loss by fire during any discussions or negotiations regarding the rental agreement. Weisgerber had a renter’s policy with Farm Bureau Insurance which included insurance for his own personal property. Weisgerber states that he did not obtain fire insurance on the real property because the landlords never requested that [429]*429he do so and he did not feel it was his responsibility to obtain such insurance.

On June 11, 1982, Weisgerber signed the rental agreement. Paragraph 5(b) of the agreement required Weisgerber to maintain the premises in a good state and condition of repair, “damage by ... fire excepted.”

II.

The issue presented on appeal is whether the trial court erred in granting summary judgment to Weisgerber upon the basis that an insurance carrier for a landlord has no right of subrogation against a tenant to recover for damages to leased premises caused by the negligence of the tenant.

The question of whether a landlord’s insurer has a cause of action by way of subrogation against a negligent tenant is an issue of first impression in the state of Idaho. Decisions from other jurisdictions which have considered the question overwhelmingly embrace the view, relied upon by the district court in awarding summary judgment to Weisgerber, that the landlord/homeowner obtains insurance that is held for the benefit of both landlord and tenant, thereby giving the tenant the status of a co-insured, absent an express agreement to the contrary.1

III.

In Pendlebury v. Western Casualty & Surety Co., 89 Idaho 456, 406 P.2d 129 (1965), this Court held a fire insurance carrier cannot maintain a subrogation action against its insured for loss of the insured premises due to the insured's negligence.

The following cases, most of which are discussed in more detail, infra, have held that the tenant has the status of a coin-sured with the landlord, absent an express agreement to the contrary. Sutton v. Jondahl, 532 P.2d 478 (Okla.App.1975); Alaska Ins. Co. v. RCA Alaska Communications, Inc., 623 P.2d 1216 (Alaska 1981); Liberty Mutual Fire Ins. Co. v. Auto Spring Supply Co., 59 Cal.App.3d 860, 131 Cal.Rptr. 211 (1976); Rizutto v. Morris, 22 Wash.App. 951, 592 P.2d 688 (1979); Cascade Trailer Court v. Jim Beeson, et al., 50 Wash.App. 678, 749 P.2d 761 (1988) (rev. denied May 31, 1988); McGinnis ex rel. C.I.E. Service Corp. v. LaShelle, 166 Ill.App.3d 131, 116 Ill.Dec. 631, 519 N.E.2d 699 (1988); Aetna Ins. Co. v. Craftwall of Idaho, Inc., Case No. 82-3073 (D.C.Idaho, 1983) (reversed and remanded at 757 F.2d 1030 (9th Cir.1985) with directions to the district court to determine the parties’ intent regarding the provision of fire insurance for the leased premises involved, or, if unable to ascertain the parties’ intent, to certify to the Idaho Supreme Court the question whether a tenant Will be presumed to be a coinsured of the landlord absent any indication of the parties’ intent).

One cogent rationale for concluding that a tenant is a coinsured of the landlord is expressed in Sutton v. Jondahl, supra.

This principle is derived from a recognition of a rational reality, namely, that both landlord and tenant have an insurable interest in the rented premises — the former owns the fee and the latter has a possessory interest. Here the landlords (Suttons) purchased the fire insurance from Central Mutual Insurance Company to protect such interests in the property against loss from fire. This is not uncommon. And as a matter of sound business practice, the premium paid had to be considered in establishing the rent rate on the rental unit. Such premium was chargeable against the rent as an overhead or operating expense. And of course it follows then that the tenant actually paid the premium as part of the monthly rental.... To suggest the fire insurance does not extend to the insurance interest of an occupying tenant is to ignore the realities of urban apartment dwelling and single-family dwelling renting.
[430]*430Prospective tenants ordinarily rely upon the owner of the dwelling to provide fire protection for the realty (as distinguished from personal property) absent an express agreement otherwise. Certainly it would not likely occur to a reasonably prudent tenant that the premises were without fire insurance protection or if there was such protection it did not inure to his benefit and that he would need to take out another fire policy to protect himself from any loss during his occupancy. Perhaps this comes about because the companies themselves have accepted coverage of a tenant as a natural thing. Otherwise their insurance salesmen would have long ago made such need a matter of common knowledge by promoting the sale to tenants of a second fire insurance policy to cover the real estate.

Sutton, supra, 532 P.2d 478.

In Cascade Trailer Court v. Jim Beeson, et al., supra, 749 P.2d 761, the court affirmed the decision of the trial court granting summary judgment to the tenants and holding that the tenants were implied coinsureds with the landlord under the landlord’s fire policy, thus defeating the subrogation claim against them. The court responded to the criticism of the Sutton rationale found in Page v. Scott, supra, 567 S.W.2d 101,2 and stated its analysis as follows:

We are not persuaded by Cascade’s general arguments attacking the rationale of Sutton v. Jondahl, 532 P.2d 478

Free access — add to your briefcase to read the full text and ask questions with AI

Related

American Family Mutual Insurance Co. v. Auto-Owners Insurance Co.
2008 SD 106 (South Dakota Supreme Court, 2008)
Union Mutual Fire Insurance v. Joerg
2003 VT 27 (Supreme Court of Vermont, 2003)
Hanover Insurance v. Honeywell, Inc.
200 F. Supp. 2d 1305 (N.D. Oklahoma, 2002)
Fire Insurance Exchange v. Hammond
99 Cal. Rptr. 2d 596 (California Court of Appeal, 2000)
56 Associates Ex Rel. Paolino v. Frieband
89 F. Supp. 2d 189 (D. Rhode Island, 2000)
Empire Lumber Co. v. Thermal-Dynamic Towers, Inc.
971 P.2d 1119 (Idaho Supreme Court, 1998)
Continental Ins. Co. v. Kennerson
661 So. 2d 325 (District Court of Appeal of Florida, 1995)
Edward E. v. Clayton
529 N.W.2d 523 (Nebraska Supreme Court, 1995)
Bannock Building Co. v. Sahlberg
887 P.2d 1052 (Idaho Supreme Court, 1994)
GNS PARTNERSHIP v. Fullmer
873 P.2d 1157 (Court of Appeals of Utah, 1994)
Paley v. Zoltek Corp.
1 Mass. L. Rptr. 517 (Massachusetts Superior Court, 1994)
Kansas City Fire & Marine Insurance Co. v. Rogers
1994 OK CIV APP 3 (Court of Civil Appeals of Oklahoma, 1994)
Dix Mutual Insurance v. LaFramboise
597 N.E.2d 622 (Illinois Supreme Court, 1992)
Community Credit Union of New Rockford v. Homelvig
487 N.W.2d 602 (North Dakota Supreme Court, 1992)
Neubauer v. Hostetter
485 N.W.2d 87 (Supreme Court of Iowa, 1992)
Aetna Casualty & Surety Co. v. Barasch
603 A.2d 380 (Supreme Court of Vermont, 1992)
Safeco Insurance Companies v. Weisgerber
767 P.2d 271 (Idaho Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
767 P.2d 271, 115 Idaho 428, 1989 Ida. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safeco-insurance-companies-v-weisgerber-idaho-1989.