As paragraph 8 of Joerg recommends, this court looks for specific
obligations in a lease, which illuminate parties’ intent. These tend to come
in two potential forms. See Joerg, at ¶ 8 (citing cases using surrender
clauses or clauses obligating the purchase of insurance). The first, and
overwhelmingly prevalent type, are the so-called surrender clauses where
the lease states that the tenant shall surrender the property at the end of the
term in good condition, “loss by fire excluded.” See generally Annot.,
Validity, Construction, and Effect of Provision of Lease Exempting
Landlord or Tenant from Liability on Account of Fire, 15 A.L.R.3d 786, §
7 (1968, Supp. 2004). As this court noted in its earlier entry, surrender
clause language has been the almost exclusive basis for any court’s denial
of subrogation because it prospectively excludes fire damage and implicitly
suggests that the tenant’s responsibilities are covered. Id.; see also Parson
Mfr. Corp. v. Superior Court, 203 Cal. Rptr. 419, 424 (Cal. App. 1984);
United States Fire Ins. Co. v. Phil-Mar Corp., 139 N.E.2d 330, 332 (Ohio
1956);Rizzuto v. Morris, 592 P.2d 688, 690 (Wash. App. 1979). Here,
tenants are not arguing that paragraph 28 creates such a surrender clause or
similar exclusion of responsibility for fire damage.