*1 charge implicates departments govern- Yet the those of state (g). two ment.

What that, jury’s it concern should find that defendant act, mentally committing insane or ill when defendant would order. it released without court Of that was assured Moore’s deprived insanity case. He was not of his or of the defense defense of illness, permitted anyway he mental eschewed but was as an guilt outright. alternative to the more ominous verdict of court’s instruction, particularly charge taken the context of its entire verdicts, the defenses and the fulfilled judicially-recog- alternative (b) purpose jury nized legislated charge reason, I respectfully For this dissent. Presiding Judge McMurray, am Judge authorized state Andrews, Judge join Ruffin this dissent.

Decided March

Reconsideration denied March Kane,

Daniel B. appellant. Lanier, Stephen Cox, F. Attorney, Stephen District C. Assistant Attorney, District appellee.

A94A2583. SOUTHERN TRUST INSURANCE COMPANY DEVELOPERS,

v. CENTER INC. et al. A94A2584. MAY DEPARTMENT STORE et al. v. CENTER

DEVELOPERS, INC. et al. A94A2585. HARTFORD & ACCIDENT INDEMNITY COMPANY DEVELOPERS,

v. CENTER INC. et al. A94A2586. ALLSTATE INSURANCE COMPANY v. CENTER

DEVELOPERS, et al. INC. A94A2587. NATIONWIDE MUTUAL INSURANCE COMPANY DEVELOPERS,

v. CENTER INC. et al. A94A2588. JEWELERS MUTUAL INSURANCE COMPANY DEVELOPERS, CENTER INC. et al. A94A2589. OF ASSOCIATION APRIL LOTZ MARCUS v. et al. A94A2590. HARTFORD ACCIDENT & INDEMNITY COMPANY DEVELOPERS,

v. CENTER INC. et al. A94A2591. HOME INSURANCE COMPANY v. CENTER

DEVELOPERS, et al. INC. Presiding Judge.

McMurray, These companion tenant, nine cases arise out suits Asso- (Case ciation of April Marcus Wear Men’s Outlet No. d/b/a (Case tenant, Department Store May A94A2589), of a by the owner (collec- insurer of a tenant A94A2584), subrogated or else No. defend- premises, owner of commercial against the tively “plaintiffs”), A. (“Promenade”), Charles Associates, defendant Ltd. Promenade ant Promenade,” Jr., “General Partner of Lotz, is the who De- Center management company, defendant Promenade’s *2 Electric, (“Center”). was Belco named each case Also velopers, Inc. Inc. cases, Systems, Henry Sign (“Belco”), in four while Inc. alia, inter that complaints alleged, named. The (“Henry”) also was by two fires at the damaged and contents were premises the tenants’ Georgia, and that Smyrna, Shopping Plaza Center Loehmann’s agents or their negligence of defendants fires were electrical applicable in violation of faulty signs neon maintaining claim for paid it has its insured’s alleges also that Each insurer codes. incurred as a result interruption losses damage and business property of the tenant subrogated rights and has become of fire A94A2583, Insurance Trust In No. Southern payment. extent of Case tenant, In Case No. Argus, Inc. subrogee of the Company is the tenant], A94A2584, is' “the owner of May Department Store & A94A2585, Accident Loehmann’s, In Hartford Inc. . . .” Case No. Hair, tenant, In Case Inc. Indemnity Company subrogee is the of of the A94A2586, Company subrogee is the Insurance No. Allstate A94A2587, In Na- tenant, Things, Inc. Case No. Bags Natalie’s ‘N’ tenant, Bennie’s subrogee of the Insurance is the tionwide Company is A94A2588, Insurance In Jewelers Mutual Shoes. Case No. tenant, World, Plaza Diamonds. Inc. subrogee of the Kid’s d/b/a A94A2590, Indemnity Company & Accident Case No. Hartford Line, tenant, In Case No. The Finish Inc. subrogee of the A94A2591, subrogee of the ten- Company is the the Home Insurance Oklahoma, ant, Inc. Factory Outlet Shoes of discovery, After de- allegations. Defendants the material denied A94A2589) (in A. Promenade, Center, Charles Case No. fendants Lotz, Jr., summary on the basis of judgment moved for any respective expressly tenant had waived which each each other agreed claim with Center to hold of and had fire insurance respective their permitted harmless to the extent appeals fol- policies. motions and these granted The trial court these separate appeals are request parties, lowed. At the of the the nine opinion. Held: disposition single consolidated for in this A94A2588, A94A2587, A94A2585, A94A2586, Case Nos. A94A2589 and A94A2591 1. Plaintiffs these six cases enumerate judgment error, provisions of arguing operative first that “the agreements do not bar because none of the leases purchase first-party property Re- the tenants insurance.” Inc., Corp. Nostalgia, & Dev. lying on Central Warehouse 230), plaintiffs require- argue a contractual party purchase ment either first-party property insurance is es- any casualty sential valid effort to shift loss to an Consequently, urged insurance carrier. it is the waiver-of-subro- pur- gation contrary policy clauses these cases are void as (b). suant to OCGA 13-8-2 appeals, each of six the tenant’s lease contains the iden- XXI, captioned:

tical Article “WAIVERS OF SUBROGATION[:. .] Each recovery hereto waives and all against against any the other occupant or other tenant or building Center, officers, or the Shopping against employees, or agents, invitees, representatives, customers and business visitors of party such other or of such occupant other tenant or building Center, the Shopping or waiving party for loss or such its property arising others under control any cause insured under the standard form fire insurance policy permissible with all extensions and covering endorsements ad- perils ditional under insurance carried *3 waiving party in thereof. Such only lieu waivers shall be effective so long by as permitted the same is party’s each insurance carrier with- payment premium.” out the of additional (b) provides in pertinent part agreement that § an

(relative building) a “purporting indemnify to to or hold harmless the promisee against damages arising of . . out to prom- sole resulting the isee, agents, employees, his or indemnitee is against and is void and unenforceable. ...” Plaintiffs’ that contention “WAIVERS OF SUBROGATION” judice clauses the six cases sub by operation are void of this Code adversely section controlled to in Glazer v. Crescent them opinion recent whole court Wallcoverings, 492, (1) (451 App. 215 509), Ga. 493 involving substantially Glazer, language. identical contractual In this court ob- Supreme served “our that Court recognized parties has that (such lease) building-related contract solely a can to look insurance to cover their [respective] losses violating without [OCGA (b)], 13-8-2 and that an ‘well-recognized intent do so is the mean- ing’ of Plumbing clause. See Tuxedo &c. Co. subrogation’ a ‘waiver of Lie-Nielsen, v. (1) (262 27, 245 Ga. 28 Such an agreement does not violate indemnify the statute because it does not promisee, but instead ‘shifts loss to the insurance com- pany regardless Plumbing (Cit.)’ party is at fault. [Tuxedo Lie-Nielsen, &c. Co. v. 27, (2), Glazer Crescent v. supra.]” 245 Ga. 29 (1), supra. Wallcoverings, App. 492, court dis The whole 215 Ga. approved v. & Dev. in Central Warehouse 15, of certain (1), supra, suggesting Nostalgia, App. in Inc., 210 Ga. sepa expressed risk to the insurer could to shift the tent judice, provision. mandatory sub In the six cases rate explicitly ‘Waiver[s] of “are clauses labeled contractual waiver clearly contemplate Subrogation’ insurance, clauses, existence apply [Under insurance. do in the absence terms not and such their unnecessary mandatory provision is circumstances], solely parties’ [It fol ... to look to the insurer. to show the pro judice, Subrogation’ the] [s] ‘Waiver of that in the cases sub lows clauses [six] issue are indemnification leases at here visions (b), [not] [unen are therefore under OCGA 13-8-2 void forceable.” Wallcoverings, (Emphasis original.) v. Glazer Crescent places supra.1 “[S]ubrogation 494, sub rights subrogor. Consequently, rogee to which the shoes subrogee greater as, than, those the the succeeds are the same no subject

subrogor; subrogee’s limi therefore, are subject subrogor, to them the hands of tations incident any subrogor. urged against might defenses been (2) (356 Maryland Welchel, [Cits.]” Cas. Ins. Co. 877). validly cases, waived SE2d subrogation these six since tenants damage, correctly granted trial

claim fire court summary judgment. defendants’ motions for plaintiffs’ regarding enumeration, 2. insureds second whether co-insureds, and have been and found defendants were has considered appeals. respect as to Inasmuch been rendered moot with subrogation applies agents the valid waiver of lease, the sixth is found to be without merit. enumeration Case No. A94A2584 “any enumeration, 3. the fifth waiver it is contended upon Loehmann’s, Inc.] no effect a di- lease had against [defendants].” rect action filed (“May”), by May Department brought

This action was Store *4 seeking [incurred] collect for result “uninsured losses wholly-owned corpo- premises by May’s [two fires] . . .” at the leased subrogation alleged ration, Loehmann’s, case Inc. The claims in this 1 repair by allegedly faulty signs. The two fires were neon and maintenance signs responsibility. Consequently, of these errs were the the dissent tenant’s contractual perform gratuitously when it contrac- assumes that the tenant’s failure of landlord to “ responsibilities repair gross tual ‘the act or and maintenance is evidence of willful ” neglect landlord,’ damage” clause. [the] as used “loss

219 namely brought plaintiffs, are the names of two additional Maughan, Lloyd’s Syndicate [, repre- . . . “Michael an underwriter at senting] unincorporated group of alien individual underwriters an ,” Underwriters”; . . . “David hereinafter “Interested Duberry, an at Hull Maritime Insurance underwriter himself at London Underwrit- underwriters the Institute of ,” Center, appears ers .. . “the London hereinafter Institute.” It Belco, Henry are defendants named and served this action, although pleadings filed in are the names of both Center and Promenade. XI, Loehmann’s,

Article Section 11.3 of the Inc. lease contained provision: following “WAIVER OF SUBROGATION . . . Landlord and Tenant damaged event the Demised Premises its contents are destroyed fire other cause recoverable either, against maintained with either the other re- spect hereby to such or destruction are waived and released.” obliged Section 11.1 fire landlord to maintain at all times insur- improvements. “Any ance as policy shall name Tenant as Also, . . .” 11.2 required insured. Section the landlord to maintain “general public liability pol- . . a ‘blanket under [issued] so-called, icy,’ . . . changed shall not be cancelled or without [which] (10) days’ prior at least ten written The trial notice Tenant.” court May Department characterized Store’s “Plaintiff/insurer [sic] [claim subrogation action held that such claim . . .” barred a] [and was] above-quoted provision waiver of and on alter- ground May native are and defendants co-insureds. E. C. See Long, v. Atlanta, (1), Inc. Brennan’s (252 642).

Under the analysis Wallcoverings, of Glazer v. Crescent App. 492, supra, grant the trial summary judgment court’s respect correct, claims ruling would but this apply only would to the In Interested Underwriters and London stitute, non-parties appeal. both A waiver-of-subrogation this anal ysis germane is not May allegedly claims for uninsured losses as stated in the complaint. The trial judg court’s May ment as Moreover, cannot be this ground. sustained on al though Loehmann’s, orMay is supposed Inc. to be a co-insured under of fire contractually insurance defendants were responsible for maintaining, are present “we unable to discern record whether covers insurance’ losses to [defendants’] [‘fire] [May’s] property. .” Processing . . Alimenta South Ga. Pe Co., 84). can Ga. App. Accordingly, the record judice the case sub non-viability May’s does not establish the direct claim summary judgment defendants and was unautho- *5 grounds not ruled Center’s motion were of defendant rized. Other upon appeal. by considered on the trial court and will not be and A94A2590 Case Nos. A94A2583 (Case A94A2583) by Argus, Inc. No. 4. The leases into entered A94A2590) (in (Case Line, contained Inc. No. also Finish and pertinent part) provisions: following . . . Landlord “20. LIABILITY INDEMNITY INSURANCE person any damage any . . . or for not be liable to Tenant other shall any perform damage property by to to . . . reason of failure of Landlord agreements hereunder, . nor such . . covenants or for its any Premises or the future caused existing, reason of defect now by any any damage present . . . or future de- nor for any part wiring, piping Shopping plumbing, or of the fect any damage arising , ... or from or Center other tenants or indemnify for acts Shopping agrees occupants Tenant of the Center. any against and from and save harmless Landlord and damage, expense by any loss, claim, demand, all damage or reason of may property

... ... be claimed to arisen as occupancy said result of or connection with the or use of Prem- expense, provide shall, at ises Tenant. Tenant its maintain during public liability insurance with the entire term force coverage damage property $50,000.00 not less limits loss than for any , . . . each such insurance one accident from name as the Landlord and Ten- shall the insured thereunder (Emphasis supplied.) Paragraph captioned: ant. . . .” “IN- Any procured WAIVER, . Ten- SURED’S NOTICE . insurance Landlord ant as herein Tenant shall issued name of [pursuant option, policy which], . . . at Landlord’s right subrogation against [the insurer’s] waives Landlord any reason whatsoever.” that,

The trial court concluded since mutually agreed provided will be bar- gain, exculpation the result mutual and a was a waiver binding upon Trust and The Hartford Southern Insurance Indemnity Company subrogees. & The trial court further Accident that these made landlord a with the held co-insured barring any subrogation argue tenant, also claim. insurers Plaintiff recognize that these conclusions fail to “the distinction between cov- erage liability policy coverage under a under a policy. agree. .” . . We

Liability against legal liability insurance is “insurance defined as disability injury, any being, damage death, for the or human or for property. By way “Property contrast, ...” OCGA 33-7-3 personal property every insurance is insurance real or kind and against damage interest loss or therein all hazards consequential upon causes and loss such loss or damage.” legal loss than noncontractual (a). judice, agreement In the cases sub that the financially responsible public liability obtaining insur- tenant was ance to hold the landlord harmless protect from the landlord liability” legal par- “noncontractual claims of or other third invitees agreed ties. This is not evidence the landlord and tenant have *6 exculpate alty solely in each other and look of casu- insurance event personal property inventory fix- as the destruction and consequential fire, with tures The business losses. trial court erred concluding requirement that a contractual that a maintain tenant (or public policy in force a insurance with landlord its agents) exculpation as a named insured amounted mutual damage inventory fire for to the and con- tenant’s premises. Moreover, tents of the leased contractual (unlike supra) these two that considered does Division not purport express subrogation damage to be waiver of to the ten- property. requires only public Rather, ant’s the lease that such liabil- ity policy contractually obligated is tenant shall in- obtain provision whereby option, clude a “at Landlord’s company] right subrogation against waives its Landlord Accordingly, provision reason whatsoever.” “the instant lease does not clearly express unequivocally [plaintiffs’ and the mutual intent of in- waive, sureds defendants] other, and each consequences respective negligent of their own acts or omissions. generally (319 Escape, App. Ltd., See Hall v. Skate SE2d 67) (1984).” Borg-Warner Ins. Finance v. Executive Park Ven- 340). grant- tures, 198 Ga. court trial erred ing summary judgment against plaintiff In- insurers Southern Trust Indemnity Company surance and The Hartford Accident & respective subrogated damage alleged for their claims for fire consequential business losses. 5. In A94A2585, A94A2586, Case A94A2587, A94A2588, Nos. grant judgment A94A2591, A94A2589 and basis of a valid waiver of on for fire to the tenant’s A94A2583, is affirmed. In Case Nos. A94A2584 and summary judgment ground A94A2590, the same reversed. Judgment A94A2585, A94A2586, in Case Nos. affirmed Judgment

A94A2587, A94A2588,A94A2589and A94A2591. reversed Birdsong, A94A2583, J., in Case A94A2584 and A94A2590. P. Pope, Beasley, Pope, J., JJ., J., P. Ruffin, Blackburn and concur. C. specially. J., Andrews, JJ., P. Ruffin, Smith, J., Johnson concur part. and dissents in specially concurs concurring specially. Judge, Chief Beasley, opinion except expressly it does majority in the concur (c) Apply- in Division of the dissent. question rule on the addressed interpretation in the ing principles of cited dissent contract including rules others contained applicable of construction 13-2-2, such that OCGA there no conflict leases identified summary judgment improper. damage provision together with waivers

Reading loss and par- reveals that provision in the Men’s Wear lease effective to the extent of insur- ties the waivers to be intended for its own that of ance. Landlord remained liable in- employees, agents, assigns, to the extent it was not covered merely By inserting typed exception, parties were ex- surance. (b) expressed in plicitly recognizing Plumbing in Tuxedo &c. which, Supreme Court as construed Lie-Nielsen, (1) (262 Co. allows company. The risk shifting of the of loss to insurer, upon the extent it is not cast remains the landlord’s to the paid premium carry negli- it. loss from being which is Where the not, gence coverage, the does can- exceeds the amount of landlord not, attempt do byit contract the tenant. An so would avoid *7 (b), prohibition parties expressly violate OCGA 13-8-2 which honored. typed lease

The additional Shoe Secrets has the effect; printed parties differently. same stated it The all-en- just typed provision excep- loss and is limited compassing tion which states that landlord is not relieved of for its immediately negligent acts. Reference is then made to rider con- provision, protects taining a waiver of tenant from recovery in- right subrogated of the landlord to the landlord’s printed surer The for losses caused the tenant. standard “waivers recovery of subrogation” provision parties, waives insurers, by implication subrogated and the extent of to Reading together, plain all of it that coverage. this is landlord’s negligence to in- remains the extent covered surance. Pope,

I An- Presiding Judge Judge am authorized to that state drews, special in Judge Judge join Johnson Ruffin this concur- and rence.

Smith, Judge, part. in concurring specially dissenting in judgment, I portions majority’s concur certain but I respectfully portions different reasons. dissent as to other of the ma- opinion. jority I majority’s holding

1. with the in Division for a albeit Wallcoverings, reason: Glazer Crescent different 509) (1994), claim; May is inapplicable summary judgment inappropriate May was therefore as to the Company. damage” pro- “loss May Company

The clause “subject vides that of Section 11.3 ‘waiver of clause], subrogation’ personal tenant all agrees covenants and that premises of tenant . . . which shall be so is the demised (to law), except permitted by at tenant’s sole risk the extent for dam- age resulting negligence, thereto from landlord’s wilful act or default under this lease.” This clause shows an intent to hold the landlord negligence, “subject liable for its own but makes the clause to” the subrogation” “waiver of clause. This an conflict also creates issue intent, parties’ regarding fact that issue fact makes a summary judgment improper. 3, however, majority also holds in Division that the Inter- Institute, ested Underwriters in- May Company’s and the London surers, non-parties appeal. opinion are Majority to this at 218-219. Appellee incorrect, concedes that this and would hold that sum- mary judgment inappropriate was them for the reasons stated above and Division infra.

2. I also agree majority’s disposition Case Nos. A94A2590, A94A2583 and dealing Argus with the and Finish Line Summary judgment leases. improper was these cases because the appears trial court mistakenly inferred an to shift the insurance; risk of fire appears loss to it that have made inference from requirement the lease purchase that the tenants liability insur- however, appears record, ance. It also from the the trial court misapprehension under the same as most the leases. 3. I opinion. dissent as to Division 1 of majority (a) (b) provides OCGA part that, 13-8-2 in pertinent as a mat- policy, any ter provision agreement relating con- struction or of building indemnify maintenance purports promisee damages promisee’s resulting sole However, unenforceable. long it has been the rule Georgia that “ ‘where mutually business transaction agree insur- *8 ance will provided part be a bargain, as of the such agreement must be providing construed as exculpation mutual bargaining par- to the ties who must be deemed to agreed solely have to look to the insur- ance the event of liability loss and not to on oppos- the the ing party.’ Plumbing Lie-Nielsen, Tuxedo &c. Co. v. 245 [Cits.]” 794) (1980). recently,

Until (b), interpreting cases applied only solely “to insurance” leases, the look the inferred intent purchase was under lease. of such insurance where the explicit majority “waiver of subro- Glazer, held that an of this court Although usually gation” I show an intent. suffice to such clause will recognize Glazer, in Glazer I the rationale must be dissented Despite presence applicable, applied, subrogation” of in case. the “waiver if this apparent clauses, me of the leases it that several is solely only intent to look this do not evince an case parties’ they fairly losses, demonstrate to cover certain subrogation” application of clause. For that limit the the “waiver agree majority is reason, I of these cases cannot by holding in Glazer. controlled

(b) damage” All of have a “loss and clause as well these leases subrogation” leases, In four the form “loss and a damage” clause. “waiver harmless Its holds landlord clause intact. liability damage to ten- on from ant’s ance based claims tenant subrogation including

property, the tenant’s insur- claims damage carrier, act shall be caused “unless willful gross neglect (Emphasis supplied.) language in or landlord.” The caused wilful except damage appears to me to these three leases acts of tion whether the operation gross neglect from of the waiver the landlord jury question clause. A of fact remains for determina- damages sought “gross here of such were result appro- neglect.” priate. judgment therefore cannot (c) phrases typewritten into Certain other interlined damage” lease, in- the form “loss and stance, clause. the Mens Wear typewritten language sentence, the first so was inserted into negli- except through that it now reads: “Landlord shall not own gence employees, agents assigns, negligence liable of its any damage or of others located on the tenant premises. lease, . . .” In the a sentence was added at Shoe Secrets damage” clause. The sentence reads as fol- end of “loss and foregoing contrary notwithstanding, shall lows: “The not landlord liability event of loss or be relieved of — (a) the landlord. See on rider.” acts of 8.02 entirely subrogation” rider “waiver of Number 6 new appears as to insurance the clause that waive — requires purchase i.e., insurance and the tenant to plate glass conflict insurance. These insertions create a between subrogation” damage” form “waiver of “loss and clause clauses, and that conflict undermines the inference that the negli- exculpate for its intended to the landlord own gence may not loss to insurance. We consider and shift the subrogation” isolation; must endeavor form “waiver of clauses we

225 whole, give to construe these leases as a and we must them construc parts parties. will all tions that honor their (4); Processing Ga. Pe OCGA 13-2-2 see Alimenta South (364 84) Co., (1987). particularly can This is App. SE2d typewritten true in cases where into been inserted cases, typewritten provisions form leases. control over the (7); preprinted Oglethorpe Ft. Assoc. v. language. (2) (396 585) Co., 663, Hails Constr. 196 Ga. SE2d cases, it is at least genuine true issue of material fact exists regarding subrogation” whether the form “waiver of clause was control, or typewritten provisions holding intended to whether the landlord liable for its own negligence was intended to limit the waiver of subrogation involving negligence. for claims In my landlord’s view, summary judgment inappropriate was therefore as to these leases as well. February 28,

Decided denied

Reconsideration March Marmur, McPhail, McPhail & Marmur, Jon B. appel- Sari B. lants. Duncan,

Duncan & Mangiafico, George Jr., E. Leslie P. Becknell, for appellees. A94A2670. THE STATE v. DAVIS al. et (457 194)

Pope, Presiding Judge. Roy Defendants Bradley Lynn Davis Terri charged Davis are by indictment with Georgia violations Controlled Substances Act, manufacture marijuana possession of more than one ounce marijuana. appeals State from the trial court’s suppress defendants’ motion to pursuant evidence discovered execution of a search regard warrant. The entire record to the is- sues appeal consists of in support the affidavit submitted application for issuance of the search warrant.

“In determining sufficiently whether an affidavit establishes the probable necessary warrant, cause for issuance employ we totality of the analysis Gates, circumstances enunciated in Illinois v. (103 462 U. S. 213 SC adopted by 76 LE2d Georgia Supreme in State v. Stephens, C]ourt 823) (1984). . . analysis, (t)he . Under that issuing magis task of the trate simply practical, to make a whether, common-sense decision