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Federal Insurance Co. v. Hartz Mountain Associates

Superior Court of New Jersey, Appellate Division

December 12, 2013

FEDERAL INSURANCE COMPANY a/s/o AFD CONTRACT FURNITURE, INC. and AFD CONTRACT FURNITURE, INC., Plaintiffs-Appellants,
v.
HARTZ MOUNTAIN ASSOCIATES and/or HARTZ MOUNTAIN INDUSTRIES, INC. and VEECO HOLDINGS, LLC, f/k/a CREST HAULAGE, INC., Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1072-11.

Kenneth B. Grear argued the cause for appellants.

Lisa Z. Slotkin argued the cause for respondents (Zarwin Baum DeVito Kaplan Schaer Toddy P.C., attorneys; Ms. Slotkin and Suzanne K. Baidon-Ciobanu, on the brief).

Before Judges Ostrer and Carroll.

PER CURIAM.

This appeal involves the enforcement of mutual waivers of subrogation in a commercial lease. Plaintiffs, Federal Insurance Company (Federal), as subrogee of sublessee AFD Contract Furniture, Inc. (AFD), and AFD, appeal from the trial court's order granting summary judgment and dismissing their amended complaint against defendants Hartz Mountain Associates (Hartz), the landlord, and Crest Haulage, Inc. (Crest), the tenant and sublessor. We affirm.

I.

With Hartz's consent, AFD subleased from Crest the entire premises that Crest had leased from Hartz. The property consisted of over 72, 000 square feet of warehouse space.

The lease included mutual obligations to obtain insurance and mutual waivers of subrogation. Hartz agreed to insure the building and improvements for its benefit, except for property that Crest was required to cover itself. Crest in turn was required to maintain various forms of insurance, including all risk insurance to cover loss or damage to stock in trade, fixtures, furniture, furnishings, and equipment.

Crest released Hartz from any claim by Crest or a subrogee for any damage to a person or property. Crest also agreed to require its insurer to include a subrogation waiver in its policy. The lease states:

Neither Landlord nor any Superior Lessor shall be liable or responsible for, and Tenant hereby releases Landlord and each Superior Lessor from, all liability and responsibility to Tenant and any person claiming by, through or under Tenant, by way of subrogation or otherwise, for any injury, loss or damage to any person or property in or around the Demised Premises or to Tenant's business irrespective of the cause of such injury, loss or damage, and Tenant shall require its insurers to include in all of Tenant's insurance policies which could give rise to a right of subrogation against Landlord or any Superior Lessor a clause or endorsement whereby the insurer waives any rights of subrogation against Landlord and such Superior Lessors ...

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