Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC051217. R. Bruce Minto, Judge.
Watkins & Letofsky, Daniel R. Watkins and Ann E. McIntire, for Plaintiff and Appellant.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz and Jack C. Nick for Defendants and Respondents
ROTHSCHILD, J.
This case involves a lease agreement under which Dr. Robin Abari, a dentist, rented space for his practice at a commercial complex called Plaza Diamond Bar. After a bench trial, the trial court concluded that the subrogation waiver in the lease agreement precludes this lawsuit by Dr. Abari’s insurer, The Dentists Insurance Company (Dentists Insurance), against Langner Security Services, Inc. and a number of related individuals and entities and entered judgment for Langner. We affirm.
The related individuals and entities are Roger Langner, Claudia Langner, Duane Cameron, System Property Development Co., Inc., Jerry Woldum and Shield Security. We refer to the defendants collectively as Langner.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dr. Abari’s Lease Agreement
On February 8, 1993, Dr. Abari entered into a 10-year lease agreement, commencing on June 10, 1994, for office space in one of the buildings in a commercial complex ultimately owned by Plaza Diamond Bar Partners, LLC (Plaza Diamond Bar). The lease required Dr. Abari to maintain a policy of insurance against damage caused by, among other things, fire, and he procured such insurance through Dentists Insurance. Aside from his monthly rental payment, the lease allowed Plaza Diamond Bar to charge Dr. Abari an additional, annual amount for operating costs, including security.
The lease also contained a provision entitled “Waivers of Subrogation, ” stating that “Owner and Tenant hereby waive their subrogation rights (and those of their respective insurers) against each other and any other tenant or occupant on the Property (as well as the officers, employees, agents, authorized representatives, customers and business visitors of same) with respect to any claims (including, but not limited to, claims for injury to any person(s), and/or damage to the Premises or any other part of the Property, and/or fixtures, equipment, personal property, furniture, improvements and/or alterations in or to same) which are caused by or result from risks insured against under any valid and collectible insurance contract or policy carried by Owner or Tenant (whichever the case may be) and in force at the time of any such injury and/or damage. However, the above waiver of subrogation shall apply only to the extent that such claim is covered by such insurance contracts or policies.”
The lease was supplemented by amendment and addenda several times, but the subrogation waiver remained the same. In 2004, Dr. Abari extended his lease for an additional seven-year term through June 9, 2011.
2. The Hiring of Security, the Fire and Payment of the Insurance Claim
During the lease term, on July 22, 2004, Plaza Diamond Bar, through its management company, hired Langner, doing business as StarWest Security Network, to provide security at the premises. According to the agreement for security services, beginning August 1, 2004, Langner was to provide one unarmed security guard on the premises during specified hours for 56 hours per week, and the security guard was assigned to monitor vehicles remaining on the premises after hours, pedestrian traffic and contacts with tenants and to conduct regular foot patrols of the property, including checks of the exterior and interior common areas.
During the night on October 21, 2004, a fire broke out at Plaza Diamond Bar, causing the building in which Dr. Abari’s dental office was located to burn down and thus destroy his practice. Dr. Abari filed an insurance claim with Dentists Insurance, which paid approximately $2.5 million on the claim.
3. Dentists Insurance’s Complaint
On August 16, 2007, Dentists Insurance sued Langner and the related individuals and entities for negligence. According to the complaint, Langner, in providing security services at the complex acted negligently by breaching its duty to inspect and survey the property at regular intervals to prevent harm and, as a result, caused or failed to prevent, limit or make a timely discovery of the fire that destroyed the building in which Dr. Abari’s office was located. Dentists Insurance sought subrogation damages of approximately $2.5 million to reimburse it for the amount it paid on Dr. Abari’s insurance claim.
Dentists Insurance also sued California Sports Performance & Rehabilitation Center, Plaza Diamond Bar Partners, LLC, Metro Properties, LLC and Fireman’s Fund Insurance Company. None of those defendants was involved in the bench trial, and none is a party to this appeal.
4. The Bench Trial and the Trial Court’s Decision and Judgment
The trial court ordered that it would hear Langner’s affirmative defense based on the subrogation waiver in a bench trial as phase one of trial. At the three-day trial, held on September 14, 15 and 18, 2009, Langner presented evidence that the security services provided at Plaza Diamond Bar, including the hours, tasks performed and rules enforced, were dictated by the management company for Plaza Diamond Bar, which was Langner’s client. Langner would remove a security officer from duty if requested by the management company, regardless whether Langner agreed with the expressed basis for removal. Security officers prepared daily reports of their observations on the property for the management company, acting as the “eyes and ears” of the property, and required permission from the management company for their actions on the property. Policy for the management company was to have the security officers represent its interests in terms of the property, such as by enforcing the property rules and posted signs, which would include asking after-hours trespassers to leave the premises.
Based on this evidence and the admitted exhibits, including the lease and the security services agreements, Langner argued that it is covered by the subrogation waiver as an agent, authorized representative or business visitor of Plaza Diamond Bar or its management company and thus that Dentists Insurance is precluded from recovering any amounts in subrogation from it based on the fire insurance claim it paid on Dr. Abari’s behalf. Dentists Insurance, in contrast, argued that the subrogation waiver does not apply because the lease agreement terminated automatically as a result of the fire that destroyed Dr. Abari’s practice, Langner is not an intended third party beneficiary of the subrogation waiver in the lease agreement between Dr. Abari and Plaza Diamond Bar and Langner is not otherwise entitled to enforce the subrogation waiver.
After taking the matter under submission, on November 6, 2009, the trial court issued a minute order with an accompanying memorandum of decision, concluding that the subrogation waiver in the lease agreement precludes the action. According to the court, although Langner is not an intended third party beneficiary of the subrogation waiver in the lease agreement between Dr. Abari and Plaza Diamond Bar, and thus that any benefit to Langner from the subrogation waiver would be incidental, Dentists Insurance “stands in the shoes” of Dr. Abari, its insured, and “is subject to all the defenses that would apply to the insured[, ]” including the subrogation waiver. “In other words, for purposes of this action and the interpretation of the subrogation waiver clause, the court is required to look at it as if Dr. Abari was the plaintiff, suing the Langner defendants for his losses due to the fire.” Because the subrogation waiver “applies to ‘any’ claims, including the claims of personal property damage and loss of business income as the result of fire that are the basis of this action[, ]” and “[n]o issue was raised in the trial that the amounts paid by... Dentists Insurance to Dr. Abari were not based on claims within the clause and covered by the insurance policy[, ]” the subrogation waiver precludes Dentists Insurance from proceeding against Langner to recover the amounts it paid on Dr. Abari’s insurance claim. The court also determined that, although Langner was “primarily an ‘independent contractor’” of Plaza Diamond Bar’s management company, Dentists Insurance, through Dr. Abari, had waived any subrogation rights against Langner based on its status as an agent, authorized representative or business visitor of Plaza Diamond Bar or its management company. Interpreting the subrogation waiver to achieve its desired effect “to limit exposure of the landlord and tenant to liability claims, and attorney fees and costs, where either had insurance that covered such claims[, ]” the court concluded that “in the context of this subrogation action, [Langner] was intended by the parties to the contract to be included as within and subject to the subrogation waiver clause of the lease.”
After ordering Langner to prepare a proposed judgment, the court entered judgment in favor of Langner and the related individuals and entities on December 4, 2009. Dentists Insurance timely appealed.
DISCUSSION
On appeal, Dentists Insurance’s only argument is that the trial court’s finding that Langner is not an intended third party beneficiary of the subrogation waiver in Dr. Abari’s lease agreement demonstrates the judgment in favor of Langner cannot stand. According to Dentists Insurance, absent an express finding that Langner is an intended third party beneficiary of the subrogation waiver in Dr. Abari’s lease agreement, Langner is not entitled to judgment in its favor based on the subrogation waiver. We disagree.
Subrogation waivers, like the one in Dr. Abari’s lease agreement, “are not unfamiliar in California.” (Fireman’s Fund Ins. Co. v. Sizzler USA Real Property, Inc. (2008) 169 Cal.App.4th 415, 419.) They operate to waive or release rights of contracting parties with respect to claims covered by insurance. (Id. at pp. 419-420.) They also can preclude a contracting party’s insurance company from obtaining subrogation for amounts paid on claims covered by the waiver. (E.g., Lloyd’s Underwriters v. Craig & Rush, Inc. (1994) 26 Cal.App.4th 1194, 1197-1201 [subrogation waiver in contract between property owner and contractor barred subrogation suit brought by property owner’s insurance company against contractor for negligence to recover amount paid on rain damage claim].) And they have been used to defeat an insurer’s subrogation action against a third party to recover amounts paid on behalf of a contracting party. (E.g., Davlar Corp. v. Superior Court (1997) 53 Cal.App.4th 1121, 1123-1126 [subrogation waiver in agreement between general contractor and property owner applied to insurer’s agent, as assignee of general contractor, to defeat action against subcontractor for breach of contract and negligence to recover amounts insurer’s agent paid on a fire damage claim].)
This authority demonstrates that there is no merit to Dentists Insurance’s contention that an entity must be expressly determined to be an intended third party beneficiary of a subrogation waiver in order to rely on the waiver as an affirmative defense to a subrogation lawsuit brought by the insurance company of a contracting party. Here, the subrogation waiver applies, not only to the property owner and tenant, as well as any other tenant or occupant, but also to the “officers, employees, agents, authorized representatives, customers and business visitors of same.” As a result, the trial court conducted the appropriate analysis to determine whether Langner fit into one of the categories specified in the provision. Given the court concluded Langner qualified as an agent, authorized representative or business visitor—three categories specified in the subrogation waiver, no express finding that Langner is an intended third party beneficiary of the subrogation waiver was necessary or required in order to render judgment in Langner’s favor.
We thus need not decide whether the trial court’s conclusion that Langner is not an intended third party beneficiary of the subrogation waiver is correct. We note that the general purpose of third party beneficiary law is to allow an intended third party beneficiary of a contract to enforce it by a lawsuit in his or her name as against a contracting party. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 685, p. 771; see Stagen v. Stewart-West Coast Title Co. (1983) 149 Cal.App.3d 114, 119 [“To recover for breach of an obligation arising from a contract, a third person not in privity with a party to the contract must be an intended third party beneficiary of the contract”].) Such purpose is not at issue here. To the extent that Dentists Insurance might be suggesting that some ambiguity exists between the court’s conclusion that Langner is not an intended third party beneficiary of the subrogation waiver and its finding that Langner is “within and subject to the subrogation waiver” as an agent, authorized representative or business visitor of Plaza Diamond Bar or its management company, Dentists Insurance was required to request a statement of decision but did not. (See Code Civ. Proc., § 632.) Even if we were to consider the court’s memorandum a statement of decision, Dentists Insurance did not bring to the attention of the court any ambiguity or deficiency in its memorandum. (See id. at § 634.) As a result, we assume the court made all the necessary findings to support the judgment it rendered. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134; Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal.App.4th 1128, 1134-1135 [consequences of failure to follow procedure in Code Civ. Proc., §§ 632, 634 are that trial court does “not commit reversible error by failing to provide a more detailed rationale for its” decision and appellate court implies findings to support the judgment].)
Under the subrogation waiver in Dr. Abari’s lease agreement, Dr. Abari waived subrogation rights on behalf of himself and his insurer against, among other entities, the owner of the property and its agents, authorized representatives and business visitors for any claims for injuries to persons and damage to the premises, including equipment, personal property and furniture, that are caused by or result from risks insured against under any valid and collectible insurance contract or policy carried by him and in force at the time of any such injury or damage. It is undisputed that Dr. Abari’s fire damage claim was covered and paid by Dentists Insurance under a valid and collectible policy. And the trial court concluded that Langner, which had contracted to provide security services according to the direction of Plaza Diamond Bar’s management company, was an agent, authorized representative or business visitor covered by the subrogation waiver. The judgment in favor of Langner thus is supported by the court’s findings, and no basis exists on appeal to disturb it.
Dentists Insurance does not argue with the trial court’s determination that Langner was the agent, authorized representative or business visitor of Plaza Diamond Bar or its management company. During the bench trial, Dentists Insurance argued that the subrogation waiver could not be enforced because Dr. Abari’s lease agreement terminated automatically as a result of the fire. The court rejected that argument, concluding that “[t]he cancellation of the lease... did not retroactively ‘unwaive’ the subrogation waivers contained in the subrogation waiver clause of the lease.” Dentists Insurance does not challenge that ruling. In addition, the court concluded that the liability of the related individuals and entities was derivative of Langner’s liability and also entered judgment in their favor. Dentists Insurance does not argue any independent basis for liability against the related individuals and entities. Accordingly, we affirm the judgment in their favor as well.
DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.