The Changing World for Commercial Landlords In Post September 11 th America Lease Waivers

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1 The Changing World for Commercial Landlords In Post September 11 th America Lease Waivers Harris Ominsky Blank Rome Comisky & McCauley LLP Philadelphia, Pennsylvania TRADITIONAL PROPERTY INSURANCE EXCLUSIONS Traditional exclusions from coverage included: 1. Declared war, but terrorist coverage was traditionally provided as an exception to the exclusion, so long as not caused by a sovereign power or uniformed invasion force. 2. Environmental-biological damage to real estate was excluded, including the presence of microbiological hazards that prevent the property from being used. An exception to this exclusion applied when the environmental hazard was caused by a peril insured in the policy, such as fire. 3. Loss from nuclear contamination has been excluded. 4. Sample terrorist exclusion: Pre 2/11 Terrorist Exclusion (sample) 2)a) Hostile or warlike action in time of peace or war, including action in combating or defending against an actual, impending or expected attack by any: (i) Governmental or sovereign power (de jure or de facto); (ii) Military, naval or air force; or (iii) Agent or authority of any party specified in i or ii above. Item iii of this exclusion does not apply to physical loss or damage insured by this Policy done by terrorists or done secretly by foreign enemy or agent of any government or sovereign power (de jure or de facto) when not in connection with the operations of armed forces in or against the country where the Insured Location is situated. b) Discharge explosion or use of any nuclear device, weapon or material employing or involving nuclear fission, fusion or radioactive force, whether in time of peace or war and regardless of who commits the act.

2 c) Insurrection, rebellion, revolution, civil war, usurped power, or action taken by governmental authority in hindering, combating or defending against such an event. d) Seizure or destruction under quarantine or custom regulation, or confiscation by order of any governmental or public authority. e) Risks of contraband or illegal transportation or trade. INSURANCE MARKET AFTER SEPTEMBER 11, 2001 As a result of the attack on the Word Trade Center, many insurers withdrew terrorist insurance coverage. Some reinsurers have refused to provide coverage and, as a result, retail insurance companies have been placed in a precarious position because many do not have reinsurance for terrorist risks. On the other hand, state insurance commissioners have generally taken the position that insurance companies are prohibited from excluding coverage for terrorist risks. Despite this, some insurers have stopped terrorist coverage - - or substantially reduced the limits they will underwrite, because they will not take on more risk than their own in-house capacity (the amount they keep without benefit of reinsurance.) One result is that blanket policy limits have been reduced and there have been dramatic premium increases. All of this has affected loans because some lenders are insisting on terrorist insurance coverage and it is not yet clear how that will play out. Some lenders have stated that the lack of terrorist insurance makes the loan more risky and will accept the loan only if the borrower pays additional loan fees. At the point of this writing, the insurance and legislative issues are still in a state of flux. One broker recently noted that in a recent placement on a $200 million building in Europe, the additional cost to add terrorist coverage was $1 million

3 LEASE ISSUES Required Insurance Existing leases should be reviewed to see if terrorism coverage is required. In addition, since that coverage may not be available for new tenants, lawyers will have to tailor their insurance clauses to accommodate that reality. Landlords may have to agree that the tenant should maintain that coverage only if it s commercially, reasonably available. That could be further refined to mean that a majority of similarly situated tenants in the area of the building must maintain that coverage. Mutual Waivers of Subrogation Since we live in an era where either party may be liable for failing to provide adequate security against third-party crimes, including terrorism, and certain types of insurance coverage may not be available, attorneys should rethink lease waivers. What happens if the lease provides for a mutual waiver of subrogation, but the property loss was not covered by insurance? For example, suppose the landlord was negligent in failing to act to prevent a foreseeable anthrax infiltration or a walk-in bomber? Would the landlord be exposed to a suit by the damaged tenant? The answer to this question depends on the lease s waiver provision and the tenant s insurance coverage. In the recent case of The GAP, Inc. v. Red Apple Companies, Inc., 725 N.Y.S 2d 312(N.Y. App. Div. 2001), the lease waivers proved inadequate to protect the landlord against a suit by the tenants. In that case, The GAP, Inc. and Rite-Aid Corp. each leased first floor stores from the landlord and suffered losses from a fire which started in the space of another tenant. The plaintiffs alleged that the landlord negligently failed to provide adequate fire protection - 3 -

4 equipment, in particular, a sprinkler system. Both tenants suffered property as well as business interruption damages and sued the landlord to recover damages that they didn t recover under their fire insurance policies. The landlord tried to invoke the leases waiver of subrogation clauses. In the GAP lease each party had waived all claims against the other for any loss or damage caused by any risk insured against, or required to be carried, under the leases. Rite- Aid s lease contained a slightly different clause which stated that each party waives all rights or recovery against the other to the extent that fire or other casualty insurance is in force and collectible. The Supreme Court of New York rejected the landlord s defenses after concluding that neither clause prohibited the tenants from claiming those losses that the tenants were unable to recover because of their insurance deductibles or limited insurance coverage. In essence, because there was no coverage or payment of an insured loss, there was no right to subrogation and the waiver clause did not apply. Although both companies were insured, GAP had sued for recovery of its million dollar insurance deductible, and Rite-Aid had sued for its deductible plus more than $500,000 in business interruption losses which were not covered by its policy. In each case it was clear that the landlord could have protected itself with proper lease drafting. According to the Court, the landlord could have protected itself if it had used waiver of subrogation clauses that expressly included deductible amounts in the waivers. Also, it could have been saved if it used a provision which required the tenants to be fully insured. Waiver of subrogation clauses will vary substantially, but it may help to review the following clauses which have been used in several deals

5 1. [Broad Waiver] Landlord and Tenant hereby waive against the other all claims and liability for injury or damage caused to the property of such party by the other party to this Lease, even if caused by the negligence of the other party. In addition, each party waives all rights of subrogation its insurance carriers may have against such other party, and each party shall deliver to the other party evidence of such waiver from its insurer(s). 2. [Limited Waiver] Each party, on its own behalf and on behalf of any one claiming under or through it by way of subrogation or otherwise, hereby waives all claims, rights and causes of action against the other party, for any loss or damage in or to the building or other improvements located on the real property described in page 1, the demised premises and its contents caused by any risk insured against under any insurance policies carried by either party or required to be carried under this lease at the time of such loss or damage, even if such loss or damage may have been caused by the negligence of the other party, its officers, employees, contractors, agents or invitees. 3. [Alternative Limited Waiver] Notwithstanding the foregoing, each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Landlord and Tenant each hereby releases and waivers all right of recovery against the other or any one claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both releasors insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance... Clauses 2 and 3 were respectively The GAP and the Rite-Aid lease waivers set forth in The Gap, Inc. case. Assuming a tenant does not carry terrorism insurance, those clauses would - 5 -

6 not bar a tenant s claim against the landlord for negligence The first clause probably would bar such a claim. TERRORISM PROTECTION ACT As of January 25, 2002, state insurance regulators have been granting requests from companies seeking to exclude terrorism coverage from their commercial policies, an action that officials said was necessary after Congress left town without creating a federal backup for the industry. The National Association of Insurance Commissioners is recommending that states allow insurers to exclude terrorism from policies, if a terrorist act causes at least $25 million in damage. Maryland and D.C. insurance commissioners said they plan to follow that recommendation; other insurance commissioners have endorsed it. Meanwhile, on November 29, 2001 the United States House of Representatives passed the Terrorism Risk Protection Act by a vote of 227 to 193. As summarized by FindLaw for the public, this Bill (H.R. 3210) provides for the following: 1. Section 6 prescribes procedural guidelines under which the Secretary of the Treasury shall provide financial assistance to commercial insurers to cover insured losses resulting from an act of terrorism. It sets the amount of such assistance at the difference between: (1) 90% of each commercial insurer s insured losses; and (2) $5 million It provides for additional amounts of assistance for subsequent triggering determinations, and sets $l00 billion as the maximum aggregate amount of such financial assistance. It also expresses the sense of Congress that acts of terrorism resulting in insured losses greater than $100 million would necessitate further action by Congress to address such additional losses

7 2. Section 5 defines a triggering determination of this program as a determination by the Secretary that an act of terrorism has occurred during the period between the enactment of the Act and January 1, 2003, and that the aggregate insured losses resulting from such occurrence, or for multiple occurrences of such acts, all occurring during the covered period meet specified requirements. It also sets the industry-wide trigger at losses exceeding $1 billion, and the individual insurer trigger in such circumstances, when any company s commercial losses exceed 10% of its capital surplus and 10% of the net written commercial property and casualty premiums it has written. 3. Section 5 denies application of such triggers to any commercial insurer that was not providing such insurance coverage before September 11, 2001, unless the insurer incurs such losses under commercial property and casualty insurance providing coverage for acts of terrorism through a pool of reserves for terrorism risks that is not under the control of any commercial insurer. 4 Section 7 subjects each commercial insurer, in the event of a triggering determination, to assessments for the purpose of repaying a portion of the Federal financial assistance received. It also requires that an aggregate assessment amount be assessed to commercial insurers through an industry obligation assessment determined according to a specified formula. 5. Section 8 sets forth a terrorism loss-repayment-surcharge plan which imposes a policyholder premium surcharge (of up to 3% of the insurer s net written premium) on commercial property and casualty insurance if the aggregate amount of financial assistance to a commercial insurer exceeds $20 billion. This Bill raises many issues which have not yet been fully explored

8 Comparable measures repeatedly stalled in the Senate, where they were hung up on many differences, including arguments about whether victims of terrorism should be allowed to sue U.S. businesses caught in the middle of an attack, and a proposed ban on punitive-damage awards in terrorism-related cases. In light of these proposals, lease-waiver provisions should be viewed in a new light. For example, lawyers should consider whether the Federal Government might be subrogated to rights one party may have against the other; and whether any financial assistance provided by the government will be construed as an insurance policy or insurance in force and payable under waiver-of-subrogation clauses