The Subrogation Strategist

The economic loss doctrine is a concept in subrogation law that is often debated and rarely completely understood. Even when a subrogation practitioner may think they have it figured out, a new scenario presents itself that creates a brand-new gray area. The United States District Court for the Northern District of Illinois (District Court) recently addressed the effect a data breach – at a software provider - had on an insured’s software access and how the economic loss doctrine played into the resulting claims for damage.

In Travelers Excess & Surplus Lines Co. v. CDK Glob., LLC,Continue Reading

In Terra Mgmt. Grp., LLC v. Keaten, 572 P.3d 126 (CO 2025), the Supreme Court of Colorado (Supreme Court) considered whether the trial court properly imposed sanctions on the defendants for failing to preserve evidence before the commencement of litigation. The trial court noted that the defendants, who owned and managed an apartment building, began removing the evidence from an apartment after the plaintiffs complained of toxins originating from the apartment building. As a sanction, the trial court imposed a negative inference that the defendants’ destruction of evidence ... Continue Reading

Investigating construction related claims involves more than just figuring out who is at fault. Construction contracts are often full of liability limiting provisions meant to allocate risk among the parties. A prime example is the consequential damages waiver provision, a clause that limits or waives a party’s ability to recover certain losses that do not flow directly from a breach of contract. In the construction context, consequential damages can include lost profits, loss of use, and financing costs. In contrast, direct damages are the immediate costs incurred to correct ... Continue Reading

In Carroll v. Isle of Palms Pest Control, Inc., No. 28291, 2025 S.C. LEXIS 98, the Supreme Court of South Carolina (Supreme Court) clarified the scope of the economic loss rule and, in doing so, created new opportunities for subrogating carriers to pursue tort recovery in cases involving negligent service providers.

James E. Carroll, Jr. (Carroll) contracted with Isle of Palms Pest Control (IPPC) for termite protection using a bait station system. The contract capped liability at $250,000 and specified that treatment would consist solely of installing and monitoring bait ... Continue Reading

Often times, subrogation practitioners take the “kitchen sink” approach when pursuing claims: they name all potentially liable parties under all available legal theories and whittle down from there. With construction defect cases in particular, the difficulty of identifying exactly who did what and which contractual provisions have which effect can lead to the decision to throw everything against the wall and see what sticks. However, in some cases, dealing with the ensuing motion practice from that approach just is not worth it.

In Proe, et. al. v. Diamond Homes et. al., 2025 ... Continue Reading

In Morningside Ministries v. Koontz McCombs Construction, Ltd., No. 08:23-00332-cv, 2025 Tex. App. Lexis 3584 (Morningside), the Court of Appeals of Texas (Court of Appeals) considered whether the plaintiff’s construction defect claims were “inherently undiscoverable,” thereby tolling the applicable limitations period under the discovery rule. The lower court granted the defendants’ summary judgment motions, finding that the plaintiff’s breach of contract and breach of express warranty claims were brought outside of the four-year limitations period. On ... Continue Reading

In Trustees of Boston University v. Clough, Harbour & Associates LLP, 495 Mass. 682, the Supreme Court of Massachusetts held that the tort statute of repose for improvements to real property did not bar a contract claim where the breach of the contract was based in negligence.

In Trustees of Boston University, Clough Harbour & Associates LLP (CHA) contracted with Boston University to design a new athletic field for Boston University. The contract included an indemnification provision that provided: “[CHA] shall indemnity [the university] from and against any and all expenses ... Continue Reading

In Wang v. Maserati N. Am., Inc., C.A. No. 23-2402, 2025 U.S. Dist. LEXIS 61446, the United States District Court for the District of New Jersey (District Court) considered the admissibility of the opinions of the plaintiffs’ liability expert and whether the plaintiffs’ product liability claims could survive summary judgment. The case arose from a fire in the garage on the plaintiffs’ property, where a Maserati vehicle was parked. The plaintiffs brought a product liability action against the vehicle manufacturer, alleging that a failure within the engine compartment ... Continue Reading

In Ryan Eng’g, Inc. v. Mond Homeowners Ass’n, Inc., No. 14-23-00960-CV, 2025 Tex. App. LEXIS 1681, the Court of Appeals of Texas (Court of Appeals) affirmed a trial court ruling denying the Motion to Dismiss of defendant Ryan Engineering Inc. (Ryan) with respect to the professional negligence claim asserted by the plaintiff, Mond Homeowners Association, Inc. (the Mond). Ryan argued that the Mond’s certificate of merit, filed pursuit to Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f), made “collective assertions” of negligence against Ryan and two other defendants. The ... Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On April 3, 2025, the CPSC announced the following recalls related to products that present fire hazards:

1. Honda Recalls Accessory Heaters for Side-by-Side Vehicles Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he recalled accessory heaters ...