Lithko Contracting v. XL Insurance Amer., 318 A.3d 1221

Amazon (as tenant) contracted with Duke Baltimore LLC (as landlord/general contractor) to construct and lease a warehouse in Baltimore City.
The Development Agreement (general contract) included a waiver of subrogation between Amazon and Duke but did not expressly mention subcontractors as direct beneficiaries.
Duke then entered into subcontracts with several subcontractors to perform work on the warehouse; these subcontracts also contained waiver of subrogation clauses derived from the Development Agreement.
After weather damage to the warehouse, Amazon's insurer (XL Insurance) indemnified Amazon and then filed a subrogation action against the subcontractors, alleging negligence.
The subcontractors argued that the contractual waivers precluded XL's claims; the trial court agreed and granted summary judgment to the subcontractors, but the appellate court reversed, finding the waiver ambiguous as to subcontractors.
Procedurally, the case is before the Supreme Court of Maryland on certiorari review of the appellate court’s reversal of summary judgment for the subcontractors.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the waiver of subrogation in the Development Agreement precludes claims against subcontractors	XL: Waiver only applies between Amazon and Duke	Subs: They are intended third-party beneficiaries of the waiver	Waiver unambiguously applies only to Amazon and Duke; subcontractors cannot enforce it
Whether subcontracts’ waiver clauses cover Amazon’s claims	XL: Amazon is not a party to the subcontracts; language is ambiguous	Subs: Plain language waives subrogation by Amazon against subcontractors	Clause is ambiguous; extrinsic evidence is needed to determine whether Amazon intended to waive subrogation
Whether requirement to include subrogation waivers in all subcontracts creates a project-wide waiver	XL: No project-wide waiver unless expressly stated	Subs: Such requirement signals intent for project-wide waiver	No project-wide subrogation waiver exists solely from a contract-wide requirement
Whether public policy favors enforcing blanket subrogation waivers	XL: Parties are free to contract as they wish	Subs: Public policy favors risk allocation through waivers	Public policy supports enforcement of agreed waivers, but not the imposition of waivers on non-parties

Gables Constr., Inc. v. Red Coats, Inc., 468 Md. 632 (Md. 2020) (explains doctrine and policy behind waivers of subrogation in construction contracts)
John L. Mattingly Constr. Co. v. Hartford Underwriters Ins. Co., 415 Md. 313 (Md. 2010) (scope and interpretation of project-wide waivers of subrogation)
Credible Behav. Health, Inc. v. Johnson, 466 Md. 380 (Md. 2019) (objective theory of contract interpretation and ambiguity)
CX Reinsurance Co. Ltd. v. Johnson, 481 Md. 472 (Md. 2022) (test for intended versus incidental third-party beneficiaries)
Calomiris v. Woods, 353 Md. 425 (Md. 1999) (court’s role in not rewriting contracts absent ambiguity or public policy grounds)