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Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease

“’In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party.Zurich Am. Ins. Co. v. Puccini, LLC, 2019 WL 454222, *1 (Fla. 3d DCA 2019) (citation omitted).   The standard of review associated with reviewing a trial court’s order granting a motion to dismiss with prejudice is de novoId.  

In Puccini, a commercial tenant operating a restaurant caused a fire. The fire resulted in significant damage to the commercial landlord’s building – the landlord’s property insurer paid it over $2.1 Million.    The insurer then, as a subrogee to the landlord, brought a subrogation action against the tenant that caused the fire damage.  The trial court granted the tenant’s motion to dismiss the subrogation action based on the tenant’s argument that it was an implied co-insured under the landlord’s insurance policy and, of course, an insurer cannot pursue a subrogation action against its own insured. 

The appellate court reversed the trial court’s dismissal finding that to determine whether a landlord’s insurer can pursue a subrogation action against a tenant, a court needs to adopt the case-by-case approach.  Under this approach, “there is no presumption if favor of or against subrogation; rather, the [commercial] lease-as-a-whole is examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant’s negligence.”  Puccini, 2019 WL at *2 (internal quotations omitted).   The appellate court, examining the lease-as-a-whole attached as an exhibit to the lawsuit, found that the tenant bore the risk of negligence and was not an implied co-insured with the landlord.



Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.












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