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Icing Issues
by Ron Davis

A decision in a notable shopping center lawsuit has benefitted an Indiana court in ruling on a more-recent case based on similar circumstances.

In the earlier case—Northbrook Ins. Co. v. American States Ins. Co.—an employee of a bakery tenant that leased space at Texa-Tonka Shopping Center, in suburban Minneapolis, MN, slipped and fell on ice in the alley behind the bakery tenant’s store. The employee suffered injuries from the fall and subsequently sued the shopping center owner, alleging failure to maintain the alleyway.

At the time of the accident, the shopping center owner was an additional insured on the bakery tenant’s general liability policy. That policy covered liability arising out of the “ownership, maintenance, or use” of the leased premises.

But the premiums were based on insuring the bakery, not the common areas of the shopping center, a Texas court noted. Moreover, the judge added, “By its terms, the endorsement provides coverage for [the shopping center owner’s] negligence in the bakery. Coverage is not provided for the rest of the Texa-Tonka Shopping Center.”

Finally, the court pointed out that the lease agreement between the shopping center and the bakery required the center’s owner to maintain the alley where the accident occurred. The court therefore concluded that the policy did not provide coverage for the landlord shopping center owner.

In the more-recent case, an employee of an Indianapolis business park tenant sustained an injury when she slipped and fell on an icy pathway that led from the employee parking lot to a door located at the rear of employer’s business. She used that pathway because her employer required her to enter the building by that rear entrance.

The business park owner was responsible under the lease with the tenant employer to maintain that pathway where she fell. And the accident did not occur on the part of the premises leased to the woman’s employer.

The insurer of the business park pointed out, however, that the woman’s fall resulted from the use of that part of the premises leased to her employer. In other words, the insurer added, she was injured “as she was reporting to work on the leased premises while using the only route to the door into the premises which she was permitted to use by her employer.”

Citing the Northbrook case, the court in its ruling explained, “The accident here did not occur on the part of the premises leased to the injured woman’s employer. Rather, it occurred in a common area outside the leased premises and under the business park owner’s control…. The accident clearly arose out of the failure to maintain the pathway from the parking lot to the employee entrance.” (Liberty Mutual Insurance Co. v. Michigan Mutual Insurance Co., 2008 WL 2894336 [Ind.App.])

Decision: August 2008
Published: September 2008



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