Buckeye State Mut. Ins. Co. v. Humlicek

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	463
Cite as 284 Neb. 463
matter following the malpractice. At most, the record shows
that during this time Behrens and Blunk had a general profes-
sional relationship, which is not considered continuous for the
purposes of this exception.
We note that Behrens’ and Blunk’s relationship might be
considered continuous from October 2001, when Behrens
was notified of the department’s investigation, until April
2003, when that investigation was complete, because the rela-
tionship dealt with that specific investigation. But assuming
without deciding that this relationship was continuous for that
period of time, and also assuming without deciding that this
continuous relationship could toll not the statute of limita-
tions but the running of Behrens’ discovery period under the
statute, we nevertheless conclude that Behrens’ suit, brought
more than 5 years after the termination of this relationship,
was untimely.
Because we conclude that Behrens’ suit was untimely, we
need not decide whether it was also barred by the doctrine of
in pari delicto.
CONCLUSION
Behrens’ suit is barred by the 2-year statute of limitations set
forth in § 25-222. The decision of the district court in favor of
Blunk and his codefendants is affirmed.
A ffirmed.
Wright, J., not participating.
Buckeye StAte mutuAl inSurAnce compAny, AppellAnt,
v. richArd humlicek, Appellee.
822 N.W.2d 351
Filed October 12, 2012. 	No. S-11-796.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
2. Subrogation: Words and Phrases. Generally, subrogation is the right of one,
who has paid the obligation which another should have paid, to be indemnified
by the other.
3. Subrogation: Equity. Subrogation is an equitable principle applied not as a legal
right but to subserve the ends of justice and do equity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

464 	284 NEBRASKA REPORTS
4. Contracts: Subrogation. In terms of the exercise of the right of subrogation, no
general rule can be laid down which will afford a test for its application in all
cases. The facts and circumstances of each case determine whether the doctrine
is applicable.
5. Contracts: Insurance: Subrogation: Equity: Tort-feasors. In the context of
insurance, the right to equitable subrogation is generally based on two premises:
(1) A wrongdoer should reimburse an insurer for payments that the insurer has
made to its insured, and (2) an insured should not be allowed to recover twice
from the insured’s insurer and the tort-feasor.
6. Contracts: Insurance: Subrogation. Under the so-called antisubrogation rule,
no right of subrogation can arise in favor of an insurer against its own insured
or coinsured for a risk covered by the policy, even if the insured is a negli-
gent wrongdoer.
7. Contracts: Insurance: Subrogation: Presumptions. Absent an express subroga-
tion agreement to the contrary, a tenant is conclusively presumed to be an implied
coinsured of the landlord’s insurance policy.
Appeal from the District Court for Butler County: mAry c.
gilBride, Judge. Affirmed.
Jarrod P. Crouse and Colin A. Mues, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellant.
Thomas A. Grennan and John A. Svoboda, of Gross &
Welch, P.C., L.L.O., for appellee.
heAvicAn, c.J., Wright, connolly, StephAn, mccormAck,
miller-lermAn, and cASSel, JJ.
mccormAck, J.
NATURE OF CASE
The owners of a duplex insured a building through two con-
currently issued, identical policies—one for each unit. A fire
damaged the entire structure, and the insurer paid the owners’
claims under both policies. The insurer then brought this action
to determine its subrogation rights against the tenant of one of
the duplex units, who was allegedly negligent in starting the
fire. The insurer concedes that pursuant to Tri-Par Investments
v. Sousa,1 the tenant was an implied coinsured under the policy
covering the unit he lived in. Therefore, the insurer seeks to
1 Tri-Par Investments v. Sousa, 268 Neb. 119, 680 N.W.2d 190 (2004).

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	465
Cite as 284 Neb. 463
recoup payments made for the damage only to the unit the ten-
ant did not live in.
BACKGROUND
Bryan Hilderbrand and Ryan Hilderbrand own a duplex
rental property. Richard Humlicek and Betty Humlicek were
the tenants of unit 1292 of the duplex. The tenants of the other
unit, unit 1282, are not parties to this action. The lease agree-
ments between the Hilderbrands and the Humliceks provided
that the tenants would obtain and keep in full force and effect
renter’s insurance covering their personal property, but that the
Hilderbrands would obtain and keep in full force and effect fire
and “all risk” coverage for the property. Specifically, the lease
agreement stated that the Hilderbrands “shall obtain and keep
in full force and effect . . . fire and ‘all risk’ extended coverage
insurance for the full replacement value of the improvements
located on the Leased Premises with a responsible insurance
company or companies.”
The Hilderbrands obtained insurance coverage for the duplex
building through Buckeye State Mutual Insurance Company
(Buckeye). The two units of the duplex were covered by
separate but identical policies. The policies were issued con-
currently with the notation that the coverage was for “1⁄2 of
duplex.” The coverage in the policies was described as a
“Dwelling Fire Special” and included general property damage
and injury liability coverage for the unit covered, as well as
coverage for personal property, related private structures, and
loss of rent.
In May 2009, a fire damaged both units of the duplex. The
fire originated in unit 1292. Richard allegedly caused the fire
by negligently disposing of smoking materials in the garage
attached to unit 1292.
Buckeye paid the Hilderbrands’ claims for damages result-
ing from the fire to both units. Those damages included the
damage to the building, damage to the Hilderbrands’ personal
property, and loss of rent.
Buckeye brought suit against Richard, seeking a declara-
tion that Buckeye was entitled to pursue a subrogation claim
against Richard for payments made in relation to unit 1282.

466 	284 NEBRASKA REPORTS
Buckeye did not pursue a subrogation claim against Richard
for payments made in relation to unit 1292.
The district court granted Richard’s motion for summary
judgment and dismissed the action. The court reasoned that
under Tri-Par Investments,2 Richard was an implied coinsured
with the Hilderbrands under both policies covering the two
units of the single duplex structure. An insurer cannot subro-
gate against its own insured. The court also noted that, given
the terms of the lease, it was Richard’s reasonable expectation
that the Hilderbrands would obtain fire insurance for the entire
structure. Buckeye appeals.
ASSIGNMENTS OF ERROR
Buckeye asserts that the district court erred in (1) failing
to overrule Richard’s motion for summary judgment, (2) rul-
ing that Richard is a coinsured with the Hilderbrands under
Nebraska law, (3) failing to rule that Buckeye is allowed to
subrogate against Richard, and (4) denying Buckeye’s request
for declaratory judgment.
STANDARD OF REVIEW
[1] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions.3
ANALYSIS
[2-4] Buckeye asserts that it should have a right of subroga-
tion against Richard for the payment made to the Hilderbrands
for fire damage to unit 1282. Generally, subrogation is the right
of one, who has paid the obligation which another should have
paid, to be indemnified by the other.4 Subrogation is an equi-
table principle applied not as a legal right but to subserve the
ends of justice and do equity.5 In terms of the exercise of the
2 Id.
3 State v. Kibbee, ante p. 72, 815 N.W.2d 872 (2012).
4 Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
(2010).
5 See id.

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	467
Cite as 284 Neb. 463
right of subrogation, no general rule can be laid down which
will afford a test for its application in all cases.6 The facts and
circumstances of each case determine whether the doctrine
is applicable.7
[5,6] In the context of insurance, the right to equitable sub-
rogation is generally based on two premises: (1) A wrongdoer
should reimburse an insurer for payments that the insurer has
made to its insured, and (2) an insured should not be allowed
to recover twice from the insured’s insurer and the tort-
feasor.8 But under the so-called antisubrogation rule, no right
of subrogation can arise in favor of an insurer against its own
insured or coinsured for a risk covered by the policy, even if
the insured is a negligent wrongdoer.9 To allow subrogation
under such circumstances would permit an insurer, in effect,
to avoid the very coverage which its insured purchased.10
In addition, the insurer should not be in a situation where
there exists a potential conflict of interest which could affect
the insurer’s incentive to provide its insured with a vigor-
ous defense.11
The antisubrogation rule has been extended to “implied
coinsureds.”12 In Jindra v. Clayton,13 we held that closely
related family members who owned the property in joint
tenancy were implied coinsureds under one family member’s
policy with the insurer covering the property. In Reeder v.
Reeder,14 we held that the brother of the homeowner who
6 Jindra v. Clayton, 247 Neb. 597, 529 N.W.2d 523 (1995).
7 See id.
8 See Countryside Co-op v. Harry A. Koch Co., supra note 4.
9 See Hans v. Lucas, 270 Neb. 421, 703 N.W.2d 880 (2005).
10 See, Control Specialists v. State Farm Mut. Auto. Ins. Co., 228 Neb. 642,
423 N.W.2d 775 (1988); Reeder v. Reeder, 217 Neb. 120, 348 N.W.2d 832
(1984).
11 See Allstate Ins. Co. v. LaRandeau, 261 Neb. 242, 622 N.W.2d 646 (2001).
12 Hans v. Lucas, supra note 9, 270 Neb. at 427, 703 N.W.2d at 885. Accord
Tri-Par Investments v. Sousa, supra note 1.
13 Jindra v. Clayton, supra note 6.
14 Reeder v. Reeder, supra note 10.

468 	284 NEBRASKA REPORTS
insured the property was an implied coinsured while resid-
ing as a guest in the property until it sold and his own house
was built.
We explained in Reeder that whether the insurer could sub-
rogate did not necessarily depend on categorizing the legal
relationship of the wrongdoer to the named insured. Nor did
it depend on whether the homeowner could sue the wrongdoer
for negligent destruction of the property.15 The question was
instead whether, under all the circumstances, recovery by the
insurer against the wrongdoer would be “in effect” recovery
from the insured for the very risk that the insurer agreed to take
upon payment of the premium.16
[7] But in Tri-Par Investments,17 we adopted a per se rule
governing the relationship of a tenant to the landlord’s insurer.
In Tri-Par Investments, we held that absent an express sub-
rogation agreement to the contrary, a tenant is conclusively
presumed to be an implied coinsured of the landlord’s insur-
ance policy.18 We specifically rejected a case-by-case approach
adopted by some other jurisdictions which would examine the
landlord and tenant’s intentions as shown by the lease agree-
ment and the surrounding circumstances. Thus, we held that
the tenant of a single-family home was an implied coinsured of
his landlord’s fire insurance policy and that the insurer could
not subrogate against the tenant even if he were negligent in
starting the fire.
We explained in Tri-Par Investments that the per se rule rep-
resents the better public policy for the landlord-tenant relation-
ship. First, a per se rule provides legal certainty for tenants.19 If
there is a clear subrogation provision in the lease, tenants will
be on notice that they must obtain insurance coverage for the
realty if they wish to protect themselves from personal liability
15 Id.
16 Id. at 126, 348 N.W.2d at 836.
17 Tri-Par Investments v. Sousa, supra note 1.
18 Id.
19 Id.

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	469
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in the event they negligently start a fire.20 On the other hand,
if there is not such a provision in the lease, then tenants do not
need to obtain separate insurance coverage and can rely on the
fire insurance obtained by the landlord.21
Second, the per se rule comports with the reasonable expec-
tations of the parties and the current commercial reality. We
explained that tenants reasonably expect that the owner of the
building will provide fire insurance protection for the realty on
both of their behalves. As stated in Sutton v. Jondahl,22 the case
usually cited as the progenitor of the per se rule,
“it would not likely occur to a reasonably prudent tenant
that the premises were without fire insurance protec-
tion or if there was such protection it did not inure to
his benefit and that he would need to take out another
fire policy to protect himself from any loss during his
occupancy.”23
The court in Sutton further observed that the insurance com-
panies implicitly acknowledge this reality: “‘Otherwise their
insurance salesmen would have long ago made such need a
matter of common knowledge by promoting the sale to tenants
of a second fire insurance policy to cover the real estate.’”24
Third, we reasoned that the per se rule comports with the
commercial reality that landlords will likely pass on at least
part of the cost of the insurance premiums to the tenant in the
form of rent.25 And if the tenant is effectively paying part of the
premiums, then it is equitable that the tenant shares in some of
the protection that coverage affords.26
Fourth, we reasoned that a per se rule prevents “economic
waste that will undoubtedly occur if each tenant in a multiunit
20 Id.
21 Id.
22 Sutton v. Jondahl, 532 P.2d 478 (Okla. App. 1975).
23 Tri-Par Investments v. Sousa, supra note 1, 268 Neb. at 125, 268 N.W.2d
at 196, quoting Sutton v. Jondahl, supra note 22.
24 Id.
25 See Tri-Par Investments v. Sousa, supra note 1.
26 See id.

470 	284 NEBRASKA REPORTS
dwelling or multiunit rental complex is required to insure the
entire building against his or her own negligence.”27 We cited
the reasoning of a Connecticut Supreme Court opinion that
a rule which allocated to the tenant the responsibility
of maintaining sufficient insurance to cover a claim for
subrogation by the landlord’s insurer would create a
strong incentive for tenants to carry liability insurance
for the value or replacement cost of the entire build-
ing, irrespective of the portion of the building they
occupied.28
We concluded, “‘[I]t surely is not in the public interest to
require all the tenants to insure the building which they
share, thus causing the building to be fully insured by each
tenancy.’”29
Buckeye argues that the per se rule we adopted in Tri-
Par Investments does not apply to the facts of this case.
Specifically, Buckeye argues that the per se rule does not apply
to the side of a duplex which is not rented by the tenant—at
least when the insurer has crafted separate policies for each
duplex unit.
Buckeye gives four fundamental reasons it believes the
rule in Tri-Par Investments is inapplicable to unit 1282. First,
Buckeye points out that Richard lacks an insurable interest in
unit 1282. In Tri-Par Investments, we quoted Sutton at length.
In that quotation, the Sutton court said the per se rule was
“‘derived from a recognition of a relational reality, namely,
that both landlord and tenant have an insurable interest in the
rented premises.’”30
Second, because each unit is covered by separate policies,
Buckeye argues Richard is not in privity of contract with
the Hilderbrands as to unit 1282. In cases before Tri-Par
Investments, we expressed, in dicta, approval of the per se rule
27 Id. at 131, 680 N.W.2d at 199.
28 Id. at 126, 680 N.W.2d at 196, citing DiLullo v. Joseph, 259 Conn. 847,
792 A.2d 819 (2002).
29 Id. at 127, 680 N.W.2d at 196, quoting Peterson v. Silva, 428 Mass. 751,
704 N.E.2d 1163 (1999).
30 Id. at 125, 680 N.W.2d at 195, quoting Sutton v. Jondahl, supra note 22.

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	471
Cite as 284 Neb. 463
and observed the concept of privity as a reason for the rule. In
Reeder, we stated:
“[I]nsurance companies expect to pay their insureds for
negligently caused fire, and they adjust their rates accord-
ingly. In this context, an insurer should not be allowed
to treat a tenant, who is in privity with the insured land-
lord, as a negligent third party when it could not collect
against its own insured had the insured negligently caused
the fire.”31
In Jindra, we similarly quoted the opinion of a secondary
authority that landlord-tenants are coinsureds for subrogation
purposes at least partially “‘because of the reasonable expecta-
tions they derive from their privity under the lease.’”32
Third, Buckeye argues Richard could not have had “a rea-
sonable expectation that the Hilderbrands would insure [unit]
1282 . . . for his benefit, or that his rent included payment for
the separate insurance policy” on unit 1282.33 On this point,
Buckeye argues at length that the completely separate and
distinct living units of a duplex are distinguishable from the
distinct units of an apartment building. Buckeye points out that
there are no common areas for a duplex. Buckeye concludes
that the two units of a duplex are more like two adjacent sepa-
rate homes on separate tracts of land.
Buckeye assumes it would be patently unreasonable for a
tenant to expect that he or she would be protected from a sub-
rogation action to recover damages paid under fire insurance
covering the landlord’s house next door. Buckeye argues that
for the same reasons, it is patently unreasonable for the tenant
of a duplex to expect protection under the other unit’s fire pro-
tection policy. Relatedly, it would be patently unreasonable for
the tenant of one side of a duplex to expect that any portion of
31 Reeder v. Reeder, supra note 10, 217 Neb. at 129, 348 N.W.2d at 837
(emphasis supplied), quoting Rizzuto v. Morris, 22 Wash. App. 951, 592
P.2d 688 (1979).
32 Jindra v. Clayton, supra note 6, 247 Neb. at 604, 529 N.W.2d at 527,
quoting 6A John Alan & Jean Appleman, Insurance Law and Practice
§ 4055 (Supp. 1994).
33 Brief for appellant at 10.

472 	284 NEBRASKA REPORTS
his rent payment goes toward premiums paid for fire insurance
coverage for the other side.
Fourth, Buckeye asserts that duplex tenants insuring the unit
they do not rent do not present the concerns of economic waste
present in the single family home in Tri-Par Investments or
in apartment buildings—which Buckeye recognizes would be
subject to the per se rule. The reasoning behind this assertion is
somewhat unclear. Buckeye again points to the separateness of
the policies covering each unit and the lack of common areas.
Buckeye states that in a duplex, the tenants share only “one
wall and a small band of roof.”34
We find Buckeye’s reasons unavailing. We can find no other
case in which a court has been asked to address whether a
tenant of a duplex is an implied coinsured of a separate, but
closely related, fire insurance policy with the same landlord
covering the other side. Indeed, cases involving duplexes are
few and far between. Those that have been decided are in
jurisdictions adopting a different subrogation test altogether35
or a modified per se rule which excludes application to single-
family homes.36 We do not find these cases, or the unpub-
lished decision discussed by Buckeye, particularly useful to
our analysis.
We agree with the district court that the rule in Tri-Par
Investments applies to bar subrogation against a duplex tenant
as to both sides of the building. A shared insurable interest
and privity between the landlord and tenant are part of the
backdrop to the development of the per se rule in Sutton and
similar cases, but those concepts do not form a bright line
for the rule’s applicability. In fact, in Tri-Par Investments, we
mentioned neither privity nor shared possessory interests when
summarizing our four reasons for adopting the per se rule.
Lack of privity or lack of possessory interest does not pre-
clude application of the per se rule in other jurisdictions when
34 Id. at 13.
35 See, American Fam. Mut. Ins. v. Auto-Owners Ins., 757 N.W.2d 584 (S.D.
2008); Koch v. Spann, 193 Or. App. 608, 92 P.3d 146 (2004).
36 See Hartford Fire Ins. Co. v. Warner, 91 Conn. App. 685, 881 A.2d 1065
(2005).

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	473
Cite as 284 Neb. 463
the fire damage is to another apartment unit in a multiunit
building.37 The tenant of one apartment unit never is in privity
with the landlord as to the lease of another apartment. And the
tenant of one apartment does not have a possessory interest in
the unit leased by another. In Tri-Par Investments, we explicitly
referred to the per se rule as applicable to a “multiunit dwell-
ing or multiunit rental complex.”38 Thus, we have indicated
that lack of privity or possessory interest will not preclude the
operation of the per se rule.
Buckeye also focuses on the concept of privity more nar-
rowly in relation to the insurance contract. Buckeye seems to
concede that if there is a single policy covering the building,
then a tenant who is in privity with the landlord for one unit is
in privity with respect to that single policy covering all units.
If an insurer crafts separate policies for each unit, however,
Buckeye believes privity as to other units is destroyed and the
per se rule is no longer applicable.
As already stated, our decision in Tri-Par Investments does
not support the conclusion that privity is even a particularly
pertinent element to the per se rule. It certainly does not
support Buckeye’s view of privity as a bright line limiting
the applicability of the per se rule. Furthermore, it would be
against sound public policy to permit the insurer’s crafting of
simultaneous and identical, but “separate,” policies to change
the ultimate equities under consideration. To do so would
encourage precisely the kind of gamesmanship and unpredict-
ability the per se rule was adopted to avoid. A tenant who is not
involved in securing the insurance coverage and who has not
clearly been advised of a subrogation right in the lease will not
know how the landlord and the insurance company have agreed
37 See, e.g., Federal Ins. Co. v. Commerce Ins. Co., 597 F.3d 68 (1st Cir.
2010); Trinity Universal Ins. Co. v. Cook, 168 Wash. App. 431, 276 P.3d
372 (2012); Dattel Family Ltd. Partnership v. Wintz, 250 S.W.3d 883
(Tenn. App. 2007); Middlesex Mut. Assur. Co. v. Vaszil, 279 Conn. 28, 900
A.2d 513 (2006); McEwan v. Mountain Land Support Corp., 116 P.3d 955
(Utah App. 2005); Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673,
846 A.2d 521 (2004).
38 Tri-Par Investments v. Sousa, supra note 1, 268 Neb. at 131, 680 N.W.2d
at 199.

474 	284 NEBRASKA REPORTS
to insure the building. The tenant will not know whether it is
one policy for the whole building or multiple policies for mul-
tiple units. Thus, in the event the landlord and insurer craft the
coverage under two policies instead of one, the tenant would
not be put on notice of the need to secure his or her own fire
insurance coverage.
In arguing that reasonable expectations for a duplex—as
opposed to other tenements—make the per se rule inapplicable,
Buckeye again unduly narrows a reason behind the per se rule
and misses the point. In Tri-Par Investments, we did not exam-
ine whether the tenant reasonably expected his rent payments
to go toward insurance premiums or reasonably expected that
the landlord intended a benefit to the tenant when obtaining
insurance coverage for the building. The question was instead
whether the average tenant would reasonably expect to be cov-
ered by the landlord’s insurance.
Buckeye agrees that Tri-Par Investments clearly mandates
that the duplex tenant, absent a clear provision to the contrary,
does not have to buy fire protection for his or her own unit.
The tenant is an implied coinsured as to the landlord’s insur-
ance coverage for that unit. It would be odd that a tenant who
does not have to purchase fire insurance for the unit leased
should have to purchase coverage for the unit not leased.
In fact, based on the tenant’s reasonable expectations, at
least one court has found under the case-by-case approach that
the antisubrogation rule precludes liability as to another unit,
even when it permits subrogation as to the negligent tenant’s
unit. The Supreme Court of Maryland, in Rausch v. Allstate,39
adopted a case-by-case approach and concluded under the
surrounding circumstances that the insurance company had
a right of subrogation against the tenant for the damages to
the tenant’s unit. Yet, without examination of the totality of
the circumstances, the court denied subrogation as to any
of the other units where the fire had spread. The court thus
seemed to adopt a per se rule only for those units not leased
by the tenant. The court reasoned that unless faced with a
very clear contractual provision to the contrary, it is unlikely
39 Rausch v. Allstate, 388 Md. 690, 882 A.2d 801 (2005).

BUCKEYE STATE MUT. INS. CO. v. HUMLICEK 	475
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that “the tenant is thinking beyond the leased premises or, as
a practical matter, would be able to afford, or possibly even
obtain, sufficient liability insurance to protect against such an
extended loss.”40
We find that to be equally true whether there is one other
unit or many other units. The tenant is not thinking beyond
the leased premises unless the lease agreement alerts the ten-
ant otherwise. The right to subrogation does not depend on
the number of walls separating the units or whether there are
common areas. The pertinent fact is that there is one building
in which the fire from one unit within that building can easily
spread to another. It is reasonable for the tenant to presume
that the landlord has fire protection for that building. And
it is reasonable for a tenant to expect that if he negligently
starts a fire, the insurance company will not sue him to recoup
payments made under a policy which was purchased by the
landlord precisely for such an occurrence. A reasonable duplex
tenant is not on notice, absent clear language in the rental
agreement to the contrary, of the need to purchase separate
fire insurance.
Finally, while Buckeye is correct that the more units involved,
the more economic waste, the relatively small amount of eco-
nomic waste in Tri-Par Investments did not preclude applica-
tion of the per se rule. The only difference between the tenant’s
duplicative insurance in Tri-Par Investments and the duplica-
tive insurance that would result if we adopted Buckeye’s posi-
tion here is that the duplex tenants would split the burden to
insure the building in half—insuring each other’s unit, but not
their own.
In the end, Buckeye can only be granted the right to subro-
gation where necessary to subserve the ends of justice and do
equity.41 Such ends are not present when the insurer is attempt-
ing to recoup payments for the very risk purchased by the
insured. Especially since our decision in Tri-Par Investments,
insurers understand that absent an express agreement other-
wise, they have no subrogation rights against unnamed tenants
40 Id. at 716, 882 A.2d at 816.
41 See Countryside Co-op v. Harry A. Koch Co., supra note 4.

476 	284 NEBRASKA REPORTS
who negligently start a fire. Such tenants will be considered
implied coinsureds. It is the commercial reality that insur-
ers, being aware of our decision in Tri-Par Investments, will
charge premiums sufficient to cover that risk. It is equally
true that landlords will charge rent in some measure based on
their expenses. Those expenses include insurance premiums.
And especially since our decision in Tri-Par Investments, it is
reasonable for tenants to concern themselves only with the unit
they rent and to assume they are protected through insurance
procured by the landlord for the realty, unless there is a provi-
sion in the lease clearly stating otherwise.
All of this is true regardless of the size of the building or
how it is divided. The equitable factors which led our court to
adopt the per se rule for the tenant of a single house is equally
applicable whether that house is divided into two, three, or four
or more units, and it is equally applicable whether the insurer
divides the policies to correspond to each unit or issues a single
policy for the building. We will not adopt a rule which would
protect the tenant of a duplex unit from the damages caused in
the unit occupied, while leaving the tenant open to subroga-
tion for damage to the other side if the fire spreads beyond the
single wall which divides them.
Because there was no express subrogation agreement in this
case, the per se rule makes Richard an implied coinsured under
the Hilderbrands’ policies with Buckeye. Accordingly, the court
was correct in denying Buckeye’s right to subrogation.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.