## Facts

- Landlords Stanley and Anita LaFrenz rented a residence to Chris Weisgerber under a written lease.
- The lease required Weisgerber to keep the premises in good repair but expressly excluded “damage by … fire” from that duty.
- The parties did not discuss insurance for fire damage to the structure during lease negotiations, and the lease did not require the tenant to insure the building.
- The LaFrenzes maintained a homeowner’s policy with Safeco Insurance Companies covering the property.
- Weisgerber maintained a renter’s policy covering his personal property, not the landlords’ real property.
- A fire damaged the rental house on December 23, 1983.
- Safeco paid $28,762.08 under the homeowner’s policy for repairs and related covered losses.
- Safeco alleged the fire was caused by Weisgerber’s negligence and, as subrogee, sued Weisgerber to recover the amounts paid.

## Issues

1. Whether a landlord’s insurer may pursue subrogation against a tenant for fire damage allegedly caused by the tenant’s negligence when the landlord insured the premises and the lease contains no express term making the tenant liable for fire loss or requiring the tenant to insure the building, and the lease excepts “damage by fire” from the tenant’s repair obligation.

## Decision

- The Idaho Supreme Court affirmed summary judgment for Weisgerber.
- The court held Safeco had no subrogation claim because, under the lease language and circumstances, the tenant was treated as a coinsured for fire loss under the landlord’s policy absent an express agreement to the contrary.
- The “damage by fire excepted” clause supported allocating the risk of fire loss to the landlord and the landlord’s insurer rather than the tenant.

## Legal Principles

- An insurer pursuing subrogation “stands in the shoes” of its insured and generally may not subrogate against its own insured or coinsured.
- In a residential lease setting, when the landlord carries fire insurance and the lease does not expressly shift fire-loss responsibility to the tenant, the tenant is presumed a coinsured under the landlord’s fire coverage for purposes of the fire risk.
- A lease covenant requiring the tenant to maintain the premises, while excepting “damage by fire,” indicates the parties’ allocation of fire risk to the landlord and bars subrogation by the landlord’s insurer for tenant-caused fire damage.
- Public policy supports placing the fire-loss risk on the party better positioned to insure and spread the loss (typically the landlord through property insurance), reducing duplicative insurance and related litigation.

## Conclusion

The court held that, where a residential lease excepts fire damage from the tenant’s repair duty and lacks an express provision shifting fire-loss liability or requiring tenant fire insurance on the structure, the landlord’s insurer cannot subrogate against the tenant for negligent fire damage because the tenant is treated as a coinsured for the fire risk.


Safeco Ins. Cos. v. Weisgerber, 767 P.2d 271 (Idaho 1989)