DuBois v. Nye , 1978 Utah LEXIS 1392 ( 1978 )

WILKINS, Justice

(dissenting):

The majority of the Court observes that public policy frowns upon allowing a party to indemnify himself against his own negligence. That is an old and honored rule of law, and is based upon sound reasoning.¹ But this Court has applied that rule today with, I believe, too much rigor.

The distinction between this case and those cited in the majority opinion is that, here, the parties agreed to provide insurance, and to prorate the costs of that insurance between them. The very purpose of obtaining insurance against loss by fire is to indemnify oneself against one’s own negligence, for, as we have observed elsewhere,² fire loss is nearly always caused by someone’s negligence. Negligent losses are, therefore, exactly the kind of losses foreseeable and contemplated under the “risk of Loss” language of this agreement, when that agreement also provides for insurance coverage.

The parties obviously intended that the property should be insured at all times for the protection of both parties. The District Court Judge stated that the defendants had an insurable interest in the property from the time they signed the Earnest Money Agreement, and that it was clearly the common interest and intent of plaintiffs and defendants that the property should be protected. We should uphold the District Court and rule that when an agreement designates one party to bear the risk of loss, and also to provide insurance coverage against loss by fire for the benefit of both parties, the second is not liable for loss occurring, even though it may be caused by his own negligence.³

MAUGHAN, J., concurs in the views expressed in the dissenting opinion of WILKINS, J.

1 . Though the reasons therefore were more cogent prior to the widespread use of insurance so prevalent today.

2 . Board of Education of the Jordan School District v. Hales, Utah, 566 P.2d 1246 (1977).

3 .Compare Bonneville on the Hill v. Sloane, Utah, 572 P.2d 402 (1977), where this Court held that the tenant was not liable for her own negligence because it was reasonably contemplated that the landlord would provide the insurance against loss by fire.