*1 standard applicable remand the adoptive proceedings which any heard rights E. can be parental in future. Since the before A.’s proof conducted may be opportunity beyond a will have an of “evidence grandparents terminated is that placement of their challenge the DHSS’s doubt.” reasonable we proceedings, at future grandchildren aspects of the court’s in all other I concur remaining contention need not address decision. proc- of a due they deprived have been that to review Rule ess and determination.
DHSS’s
Thus, superior court’s dis- we affirm the grandparents’ for lack of the missal A., however, E.
jurisdiction. case of superior court for a rede- to the
we remand I section of in accordance with
termination rights parental opinion of whether her this COMPANY, an INSURANCE ALASKA be terminated. Appellant, Corporation, Alaska PART, IN IN AFFIRMED REVERSED PART, AND REMANDED. COMMUNICATIONS, RCA ALASKA BOOCHEVER, J., participating. INC., Corporation, an Alaska Appellee. Justice, concurring Chief dissenting in part, part. in 4299. No. important A.’s In order to assure that E. Supreme Alaska. Court of care, control
rights custody, terminat- permanently are not her children 20, 1981. Feb. applicable with compliance strict ed absent majority re- statutory requirements, superior matter to the court for
mands the making finding, based on evidence, convincing E. A.’s
clear and likely of her children is
abandonment Although agree I that a remand
continue. indicated, disagree I the court’s re- with
is she
jection E. A.’s is contention hearing un- adjudicatory to a new
entitled provisions of the Indian Child Wel-
der Act, (Supp. 25 U.S.C.A.
fare §§ For, view,
1980).1 my contemplated subsequent proceeding
remand constitutes
affecting placement custody or Thus,
subject children.2 I conclude that subchapter, 1980) provides: 1912(f) (Supp. None of U.S.C.A. § 1911(a), except sections may rights parental No termination of title, proceeding under shall affect a this proceeding the absence of ordered in placement, termina- law for care State foster determination, supported by evidence be- place- parental rights, preadoptive tion ment, doubt, including testimony yond reasonable adoptive placement which ini- or witnesses, qualified expert the contin- completed prior one hundred tiated custody parent ued of the child 8,1978, days eighty shall but after November likely to result in serious Indian custodian any subsequent proceeding apply physical damage to the child. emotional subsequent proceedings af- matter or same placement fecting custody of the same 1980) (Supp. provides: 2. 25 U.S.C.A. child. *2 policy, thereby precluding of the landlord’s exercising from sub- insurer the landlord’s the tenant. rogation rights against Co., Inc. Bachner Rental [hereinafter Alaska Com- Bachner], and RCA as landlord munications, RCA],as ten- Inc. [hereinafter ant, one-year commercial entered into a 1, 1976, warehouse on October lease for a commencing December possession with year, Bachner previous May three-year policy for purchased a had appellant in- coverage and extended surer, Company Alaska Insurance [herein- interest in four AIC], protecting its after warehouses, including the struc- commercial ad- procure did not question. ture in RCA covering its leased fire insurance ditional warehouse, name added nor was RCA’s as an additional along with Bachner pre-existing policy with AIC. on the January, During the second week structure, rented fire occurred in the water dam- causing extensive smoke and subsequently de- building and the age, for the fire paid AIC Bachner molished. policy, and pursuant to the insurance subrogee of an action as then commenced RCA, acting Bachner, contending that had through employees, trial, for a moved the fire. At RCA Aschenbren- Matt O’Meara and Peter J. theory summary judgment on the partial Saveli, Fairbanks, ner, Aschenbrenner & Bachner, an that, RCA was as lessee of appellant. AIC, thereby precluding implied insured of Timothy Bump, Dennis M. Byrnes R. exercising subroga- appellant AIC from Thorsness, Gantz, & Brun- Hughes, Powell granted a superior court rights. tion din, Anchorage, appellee. We judgment for RCA. partial summary affirm. J., Before C. and CON- rule that “an established It is well NOR, MATTHEWS, JJ. BURKE and means of subro recover insurer cannot insured.” Graham gation against its own OPINION 1351, 1356 1972). Rockman, (Alaska CONNOR, Justice. doctrine, equitable subrogation is an Since determining its apply in equity principles In this is whether a Sammons, 198 availability. Cagle, Inc. v. “implied co-in- is an commercial tenant 254 N.W.2d fire insurance Neb. sured” under its landlord’s Mortgage Corp. Lumber v. Universal lease re- River policy, when a 262 N.W.2d keep Corp., 82 Wis.2d quires the landlord obtain Baugh-Belarde recognized in (1978). As we on the leased effect an insurance College Co. v. Utilities premises covering fire. Un- Construction loss because of 1977), quoting (Alaska case, 561 P.2d der the facts of this we hold Brothers, v. Pinski is, Home Insurance Co. legal implications, co-insured that all facilities and c. warrants (1972), Inc., 160 Mont. condition, good are in in appurtenances insurer to sue permit “[t]o required to main- repairs that all covered the insur á sured for buildings in an tain the equity violate basic would ... ance condition for adequate and suitable public well as violate sound principles, as be at shall *3 policy.” expense cost and ... Lessor’s sole Therefore, find tenant if we arising damages from [except] those co-insured can be considered a part this case on the of negligence the direct landlord, exercise of the insurer cannot any portion said fa- to of the Lessee against tenant. subrogation a right of cility. . . . have years a number of courts recent to and cause of action landlords
denied a THE OF LESSEE: II. COVENANTS insurers, subrogation to of carry fire when the landlord covenants to premises, leased and the on the insurance premises for use said b. Lessee shall damage allegedly negli due to the
fire purposes and will lawful business gence express of the tenant.1 Absent an expiration at the premises said leave provision establishing the ten in the lease good a lease in as condition this liability negligently loss from ant’s received, excepting fair wear and fires, the trend been to find started has or caused loss tear and/or for the the insurance obtained was fire, earthquake or other explosion, parties, of both and that mutual benefit provided that such casualty; the shoes tenant “stands in negligent act by the was not caused for the limited of defeat landlord Lessee, its claim.” v. Mor Rizzuto ing agents. . .. 951, 688, ris, 592 690 Wash.App. 22 P.2d indemnify hold c. agrees Lessee v. (1979), citing Springs Realty, Rock Inc. against from and Lessor harmless 270, (Mo.1965); Waid, 278 Mon 392 S.W.2d arising loss, damage liability Hart, 843, Va. v. 216 224 S.E.2d terey Corp. act 142, (1976). reasoning think 146 We clients; agents, employees, foregoing cases is sound. issue is whether the lease The central III. OF LES- MUTUAL COVENANTS clearly establishing the contains a AND LESSEE SOR negligently fire liability caused bar, be- damage. In the case at the lease following
tween the contains the automatically b. That this lease shall significance whose and construc- penalty Lessee with no terminate dispute: tion is in be- space the leased event “I. OF THE LESSOR: COVENANTS fire due to or other unusable comes
cause; Hart, 843, Monterey Corp. Spring v. 216 224 Liberty Va. Ins. Mut. Fire Co. v. Auto 142, Co., (1976); v. 860, Cal.Rptr. Supply Cal.App.3d S.E.2d 146-47 59 131 688, 951, (1979). (1976); Cerny-Pickas 211, P.2d 22 592 690-91 Co. v. C. & 214-15 Co., 100, 393, Goldman, R. Jahn 7 131 103- Mills, Ill.2d N.E.2d Inc. v. 184 See also General Hampshire (1956); v. Fox denied, New Ins. Co. 04 1950), cert. 359, (8th 340 F.2d 365 Cir. Theatres, Inc., 720, Midwest 203 532, Kan. 457 947, (1951); 95 L.Ed. 71 S.Ct. 683 U.S. Springs Realty, 133, (1969); Co., Inc. Penney Cal.App.3d J. C. 7 Gordon v. Waid, Unit (Mo.1965); (1970); v. Mut. 392 S.W.2d 278 Hardware Cal.Rptr. 86 606 Oldsmobile-Cadillac, Fire Ins. v. ed States Co. Phil-Mar 166 White Cas. v. Bob Co. Inc., Sutton Ill.App.3d St. 139 N.E.2d Ohio Ill.Dec. Jondahl, (Okl.App.1975); (1977). N.E.2d view, redelivery In our agrees pay by fire. all taxes and c. AIC, against levied indemnity provisions assessments made relied on ob- upon property. said Lessor shall conjunction with insur- when read in during in force keep tain and c., establish clearly ance clause of III. fail to policies term this RCA’s for fire covering damages insurance negligence.2 own premises providing protection type We believe that in a situation including against perils all and risks pub- as a matter of it would undesirable but limited to classifications permit the risk loss from lic fire, coverage, extended vandalism to fall and malicious mischief. Lessee the tenant rather than the landlord’s agrees usage if its leased Keeton, Law insurer.3 R. Insurance See increase the insur- 4.4(b), ordinary at 210 Since *4 premises any ance hazard of the in by meaning of “loss fire” includes and usual lease, way during of the the term said it contra- negligent origin,4 fires of would Lessee the cost shall bear additional a com- expectations the of dict reasonable of realized Lessor. insurance the insur- tenant to allow the landlord’s mercial agrees provide ade- to Lessee proceed against er it after the landlord to quate to verify documentation lease to fire provide had contracted in the any insurance in- premium additional premises. on insurance the leased crease is due to of in fact Lessee’s use 690-91; Morris, Monterey v. 592 P.2d premises.” said leased Hart, agree Corp. v. 224 at 147. We S.E.2d the of an AIC contends that absence Jondahl, v. 532 with the court in Sutton exemption negligent express liability for which (Okl.App.1975), P.2d 478 stated: c., b., the paragraphs inclusion of I. II. equity justice fundamental “Basic of clearly and II. c. the lease establish equitable doctrine of sub- upon which the liability RCA’s for fire caused require is when rogation established negligence. analysis In the last the dwelling for provided fire insurance is is question give primacy we should whether the interests of all protects it insurable redelivery (II. b.) indemnity (II. to the including in- joint possessory owners the lessee, c.) insur covenants the to the express of a absent an c., terests tenant ance clause of wherein the lessor III. contrary. to the latter to the promises covering, agreement insurance inter obtain alia, affording coverage such company to The the leased negli- correctly by alleging majority payments for the that a of the fire loss *5 construing by the ex considered courts Justice, dissenting. Chief emption clauses.” agreement general prin- I am in with the (1979). Wash.App. e., majority opinion out ciple set in the —i. Rizzuto was decided after trial id. Wash.
that, “[ajbsent express provision an in the App. based “the liability for establishing lease the tenant’s parties.” testimony of all the undisputed fires, loss from started Id., P.2d at The trend has been to find that the insurance summary case is on from a instant was the mutual both obtained for benefit of genu judgment, I think still and there are parties, and that the tenant in the ‘stands regarding ine of material fact issues limited shoes of the insured landlord parties. intent of the ” defeating claim.’ However, to in- here the chose express provision establishing
clude an by fires liability for majority negligence.
tenant’s own opinions no has held
cites which court general an principle overrules such
express provision, I would allow it not loss, against lessor harmless from and
1. “The
result
and hold
damage
whether
desired
negligent
(that
liability arising
given
from the
be
the benefit of
lessee
clients;”
judi-
lessee,
agents,
insurance)
by
lessor’s
should
reached
act of
imposition
11(b),
Paragraph
requires
cial
of such a rule
the absence
which
the lessee
statutory
expiration
sanctions is debata-
administrative
to “leave said
at the
received,
Probably
good
except-
ble.
so rule if
the courts
not
in as
a condition
lease
provisions together
ing
and insurance
and tear
fair wear
and/or
clearly express
agreement
fire,
by
explosion, earthquake
an
that the lessor’s
or other
caused
casualty;
subrogation.” R.
insurer shall
Keeton,
provided
have
4.4(b),
Law §
Insurance
at 210
act
caused
employees
” my opinion,
agents
....
I think that there are two clear
provisions clearly
unambig-
establishing
lessee
these
the tenant’s
for loss
responsible
negligence: Paragraph
uously
to be
covenanted
fires started
its own
negligence.
11(c),
indemnify
“[ljessee agrees
which
states
AIC
notes
1,
placed empha-
tenant,
supra,
many
gence
loss-
cited
also
of the
fire
cases
note
commercial
exculpatory portion
costly litigation.
sis
the
on
a “surrender”
For similar
will result in
es
reasons,
“re-delivery”
distinguishable
Baugh-Belarde
is
clause which
Co.
we held
Constr.
1211,
the
in the
bar.
College
Corp.,
surrender clause
case at
1215
v.
Utilities
Annot.,
786,
generally
15
7
1977),
pro-
See
A.L.R.3d
(Alaska
policy
that a builder’s risk
b.,
(1967
Supp. 1979).
phrase
II.
&
subrogating against
the insurer from
hibited
casualty
“provided that such
was not caused
general
insured
contrac-
sub-contractors
agent,
the
the
act of
tor.
appear
not
clients” does
in those
cases cited in note 1 which have denied a land-
Goldman,
359,
Mills,
184 F.2d
Inc. v.
4. General
subrogate.
right
insurer
lord’s
the
to
Neverthe-
denied,
(8th
1950), cert.
340 U.S.
Cir.
less,
we do not find this
the lease
532,
(1951); Cerny
71