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Schmeisser v. Greenbrook Office Park Associates, Ltd.

A-1981-99T2 (N.J. Super. App. Div. 2001) (Unpublished)

LEASES; LIABILITY; INSURANCE—Although the indemnification provisions of a lease might not require a tenant to indemnify its landlord for a particular incident, the lease’s insurance provision might still require the tenant to provide insurance coverage.

A surveyor leased premises within an office building. One of its employees fell just outside the building while entering for work. The employee sued the landlord and the landlord filed a third-party complaint against the employer alleging that its tenant had been negligent and owed it contractual indemnity. The lease provision relied upon by the landlord for its indemnification claim required that the tenant indemnify the landlord from any and all claims arising from the conduct by the tenant (and not by the landlord) or any person acting for or under the tenant and also for “any act or thing whatsoever done, or any condition created in or about the premises, arising from any negligent or otherwise wrongful act or omission of the Lessee and not of the Lessor, or any agent, customer, invitee or licensee of the lessee.” The lower court found that the indemnification clause did not require the tenant to indemnify its landlord. The Appellate Division agreed. The landlord stipulated there was no negligence on the part of its tenant. Further, there was no contention that the tenant had any responsibility to maintain the sidewalk leading into the building where its employee had fallen on some landscape rocks. That area was entirely under the control of the landlord. Further, there was no evidence that the employee was contributorily negligent. Nonetheless, the landlord sought to rely on that part of the indemnification clause which, in effect, obligated the tenant to indemnify the landlord from claims arising from “the conduct of the Lessee ... or any agent ... of the Lessee.” The Appellate Division, agreed with the lower court finding that the cited provision did not apply because the landlord was essentially seeking indemnification for its own negligence, and the scope of the indemnification clause was not that broad. On the other hand, the lease also contained an insurance clause requiring the tenant to keep “in full force and effect a policy of public liability ... insurance with respect to the premises… .” The Court held that the cited insurance clause was applicable only “with respect to the premises.” Therefore, the matter was remanded to the lower court to determine whether the accident took place on the premises. If it did, the tenant’s obligation to provide insurance for accidents occurring on the premises could be a basis to make the tenant liable for any claim against its landlord arising from the accident.

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