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Indiana Ins. Co. v. Carnegie Constr.5/31/1995
conclude that the Board contractually waived its right to pursue Carnegie for the windstorm loss sustained on December 15, 1987, because it agreed to shift the risk of that loss onto an insurer. Indiana, as the Board's subrogee, cannot succeed to rights greater than those possessed by the Board. Ins. Co. of N. Am., supra, 35 Ohio App.2d at 177, 64 O.O.2d at 277, 300 N.E.2d at 463; and Tuxedo Plumbing & Co. v. Lie-Nielsen, supra, 245 Ga. at 29, 262 S.E.2d at 795-796. As a result, without reference to whether Carnegie is an insured under Indiana's builder's risk policy, no right of subrogation to recover from Carnegie will lie.
Carnegie's sole assignment of error is sustained, and the judgment of the trial court is reversed. Costs to be paid by appellee Indiana Insurance Company.
Judgment reversed.
WOLFF and FAIN, JJ., concur.
____________________ Footnote:
1 The contract under examination in Ins. Co. of N. Am. v. Wells (1973), 35 Ohio App.2d 173, 175, 64 O.O.2d 274, 276, 300 N.E.2d 460, 462, contained a provision by which "the Owner, Contractor, and all subcontractors waive all rights, each against the others, for damages caused by fire or other perils covered by insurance provided for under the terms of this article. " Likewise, in Len Immke Buick, Inc. v. Architectural Alliance (1992), 81 Ohio App.3d 459, 463, 611 N.E.2d 399, 401-402, the construction contract provided, "The Owner and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to this Article."
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