LBM Realty, LLC v. Mannia
| Decision Date | 19 December 2012 |
| Docket Number | No. 71A03–1205–PL–231.,71A03–1205–PL–231. |
| Parties | LBM REALTY, LLC, d/b/a Summer Place Apartments, Appellant, v. Hillary MANNIA, Appellee. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Charles R. Shedlak, South Bend, IN, Attorney for Appellant.
Tracey S. Wetzstein, Merrillville, IN, Attorney for Appellee.
After a fire broke out at an apartment building owned by LBM Realty, LLC d/b/a Summer Place Apartments (“LBM”), LBM's insurance company, Greater New York Mutual Insurance Company (“Insurer”), paid LBM's fire loss claim and then filed an insurance subrogation action, in LBM's name, against LBM's tenant, Hillary Mannia (“Mannia”), who is alleged to have negligently started the fire on her balcony patio. Mannia filed a Trial Rule 12(B)(6) motion to dismiss LBM's claims of breach of contract and negligence, and the trial court granted her motion. LBM now appeals from the trial court's dismissal of its complaint against Mannia.
We reverse and remand.
Whether the trial court erred by granting Mannia's motion to dismiss LBM's complaint.
LBM owns the Summer Place Apartments (“the Apartments”) in Granger, Indiana. In March 2010, Mannia signed a one-year lease agreement (“the Lease”) and rented an apartment from LBM. Debra Mannia (“Debra”) was also listed as a “Resident” under the Lease, and she signed the Lease along with Mannia. 1 (App. 5, 11, 13). The Lease contained the following relevant provisions:
VII. Insurance. In the event the Leased Premises are totally destroyed by fire, rain, wind, or other cause beyond the control of Owner [LBM], or are condemned and ordered torn down by the properly constituted authorities of the state, county or city, then in either of these events this Lease shall cease and terminate as of the date of such destruction. If the Leased Premises are damaged by fire, rain, wind or other cause, beyond the control of Owner, so as to render the same partially untenantable or partially unfit for the use or purpose for which the same are hereby let, and partially fit for the use or purpose for which the same are hereby let, and are repairable within a reasonable time, then this Lease shall remain in full force and effect; but there shall be an abatement in rent in the portion that the damaged portion of the Leased Premises bears to the whole of said Leased Premises. Owner recommends the Resident obtain renter's insurance.
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XIII. Rules. Owner has supplied Resident with a written or printed set of rules, the receipt and reasonableness of which are expressly acknowledged by Resident.[ 2] Resident shall be bound by and shall comply with, these rules as if they were included in the text of this Lease. Resident further agrees to the adoption by Owner of reasonable amended rules during the Term of this Lease, which amended rules delivered [sic] to Resident in the manner described above for notices and which amended rules shall be binding upon Resident upon delivery. Owner shall have no liability, whatsoever, to Resident, any member of Resident's family, or guest of Resident for any violation of rules by any other resident or guest thereof. Resident receives no rights from these rules.
XIV. Save Harmless Clause. Resident shall indemnify and save harmless Owner from and against any and all claims or actions for damages to persons or property, or for loss of life, and against any and all losses, costs, damages, charges, penalties and expenses, arising out of or in connection with any accident or other occurrence due directly or indirectly to the use and occupancy of the Leased Premises, or any common or related area, by the Resident. This indemnity extends to any and all claims in which it is asserted that Owner itself has been negligent or otherwise at fault.
XV. Waste. The occurrence of any of the following constitutes the commission of waste by Resident:
A. The occurrence or threat of physical damage to the Premises, common areas, or other property of Owner;
B. The occurrence or threat of physical injury to, or damage to the property of, other persons lawfully in the Leased Premises, common areas, other living units, or other property of Owner including Owner's employees and agents;
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E. Other acts or omissions which are or may be likely to cause damage or injury to Owner, Owner's property, Owner's reputation, or other persons.
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XVIII. Exterior of Building, Adjacent Areas and Storage. “Premises” shall mean only that portion of Owner's property contained within the interior walls of the dwelling unit described herein, and shall not be construed to include any storage shed or closet, balcony, patio, garden, exterior wall or grounds adjacent thereto. During the Term of this Lease, Resident shall have an addendum for use of any balcony or patio (whether fenced or open) directly accessible from the Leased Premises and any storage shed or closed located thereon, subject to the restrictions set out in this Lease. Resident shall keep such areas in a clear, and orderly condition at all times. Resident shall have the risk of loss to any property stored or placed in any storage shed or closet available for use, the use of which shall be strictly limited to storage only. Resident shall not store any flammable, noxious or hazardous materials in any storage shed or closet at any time, shall keep the storage shed or closet clean and shall remove all items from there upon vacation of the Premises.
XIX. Miscellaneous Provisions. Resident, for themselves, their heirs, legal representatives, hereby covenant and agree that:
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E. Resident has examined the Leased Premises, is satisfied with the physical condition, and Resident's [sic] taking possession is conclusive evidence of receipt of them in good order and repair, except as otherwise specified. Resident hereby acknowledges that no representation as to condition or repair has been made except as in contained in this Lease and Resident acknowledges that no warranty of condition or promise to decorate, alter, repair, or improve the Leased Premises has been made except such as expressly contained in this Lease. At the end of the term, Resident shall return the Leased Premises to Owner in the same good condition, reasonable wear and tear excepted. Resident is and shall be responsible and liable for any injury or damage done to the Leased Premises, common areas or any property of Owner caused by resident, any occupant, or any other person whom Resident permits to be in or about the Leased Premises. Resident shall pay the expense of replacingall glass broken and shall replace all keys lost or broken, and maintain the premises in such condition, order and repair as the same are in commencement of the Lease Term or may be put in during the Lease Term, reasonable wear and tear excepted.
Resident shall permit no waste of the Leased Premises nor allow the same to be done, but Resident shall take good care of the same....
XX. Entire Agreement. The terms and conditions contained in this Lease, together with Addendum to Lease attached her[e]to, the Rules and Regulations, the Application For Lease, the Move–In Inspection form and any other agreements which by reference herein are made a part of this Lease, will be conclusively deemed the agreement between the Resident and the Owner, and no modification, waiver, or amendment of the Lease or any of its terms, conditions, or covenants, shall be binding upon the parties unless made in writing and signed by the parties sought to be bound. If there is more than one Resident, their liability and obligation shall be joint and several.
(App. 7, 8–11) (italicized emphasis added; bolded emphasis in original).
On July 3, 2010, a fire occurred at the Apartments, resulting in damages totaling $743,402.86. On May 6, 2011, LBM filed a complaint against Mannia, alleging claims of breach of contract and negligence. Specifically, in regard to the breach of contract claim, LBM alleged that Mannia had breached her contract with LBM when she:
a. Carelessly and improperly disposed of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises; and/or
b. Carelessly and improperly allowed guests to dispose of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises[;] and/or
c. Otherwise failed to comply with her obligation to return the premises in the same condition as when she moved in, reasonable wear and tear excepted.
(App. 2). In regard to its negligence claim, LBM alleged that Mannia had:
a. Carelessly and improperly disposed of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises; and/or
b. Carelessly and improperly allowed guests to dispose of smoking materials by placing same in a plastic bottle and in close proximity to the vinyl siding on the balcony patio wall of the leased premises; and/or
c. Otherwise acted carelessly and negligently.
(App. 3). LBM, in compliance with Trial Rule 9.2, attached a copy of the Lease to its complaint.
On December 15, 2011, Mannia filed a Trial Rule 12(B)(6) motion to dismiss LBM's claims in “this subrogation action against [her] to recoup the money it paid for the property dam[a]ge.” (App. 20).3In Mannia's brief in support of her motion to dismiss, she discussed the three approaches used by trial courts in the country to resolve the question of whether a landlord's insurer can file a subrogation action against a negligent tenant. These approaches include: (1) the no-subrogation (or implied co-insured) approach, in which, absent an express agreement to the contrary, a landlord's insurer is precluded from filing a subrogation claim against a negligent tenant because the tenant is presumed to be a co-insured under the landlord's insurance policy; 4 (2) the...
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