The Subrogation Strategist

In Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party.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 October 8, 2019, and October 10, 2019, the CPSC announced the following recalls related to products that present fire hazards:

Carrier Recalls Carrier- and Bryant-Branded Heat Pumps Due to Fire Hazard; and

Kawasaki Motors USA Recalls Lawn Mower Engines Due to Burn ... Continue Reading

In City of Oroville v. Superior Court, 446 P.3d 304 (Cal. 2019), the Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup. The court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial cause of the damage. Since the dental practice did not have a code-required backwater valve — which would have prevented or minimized this loss — the court found that the city was not liable because the sewage system was not a substantial cause of the loss. This case establishes that a claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage. It also suggests that comparative negligence can be a defense to inverse condemnation claims.Continue Reading

In Conn. Interlocal Risk Mgmt. Agency v. Jackson, 2019 Conn. LEXIS 230 (Sept. 1, 2019) (Conn. Interlocal), the Supreme Court of Connecticut considered a careless smoking case and whether, as a matter of first impression, Connecticut should adopt the alternative liability doctrine first set forth in Summers v. Tice, 199 P.2d 1 (Cal. 1948). Recognizing that the doctrine is a sound one, the court adopted it for cases proceeding in Connecticut.Continue Reading

In Rankin v. South Street Downtown Holdings, Inc., 2019 N.H. LEXIS 165, the Supreme Court of New Hampshire considered, pursuant to a question transferred by the trial court, whether RSA 508:4-b, the statute of repose for improvements to real property, applies to indemnity and contribution claims. The court concluded that based upon the plain reading of the statute, it applies to indemnity and contribution claims. As noted by the court, a holding to the contrary would violate the intent of a statute of repose, which is to establish a time limit for when a party is exposed to liability.Continue Reading

As most subrogation professionals know, Amazon has been fighting products liability claims across the country for some time now. While it has been largely successful in doing so in the past, in a recent decision, Wisconsin sided with the plaintiff. In the case of State Farm Fire & Cas. Co. v. Amazon.com, Inc., 2019 U.S. Dist. LEXIS 122316, 2019 WL 3304887, the United States District Court for the Western District of Wisconsin denied the motion for summary judgment filed by defendant Amazon.com, Inc. (Amazon). The court held that Amazon was so deeply involved with the transaction at issue that it was an entity that could be held strictly liable under Wisconsin law. It also held that 47 U.S.C. § 230 of the Communications Decency Act (CDA) did not immunize Amazon because its liability was not based on posting content from a third party.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 August 27, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

At Home Recalls Shag Rugs Due to Violation of Federal Flammability Standard; Fire Hazard.

The CPSC posted the following information about the hazard:

The ...

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 August 28, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Whirlpool Recalls Glass Cooktops with Touch Controls Due to Burn and Fire Hazards.

According to the CPSC, “[t]he recalled cooktop surface elements can turn ... Continue Reading

In Westfield Insurance Group v. Silco Fire & Security, 2019 Ohio App. LEXIS 2810, the Court of Appeals of Ohio, Fifth Appellate District addressed whether the trial court properly instructed the jury that the applicable measure of damages for damage done to a computer network was the network’s replacement cost value rather than its fair market value. Based on the unique circumstances of the case, the Court of Appeals held that the trial court did not abuse its discretion when it instructed the jury on the replacement cost measure of damages rather than fair market value.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 August 20, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Southwire Recalls Electrical Outlet Boxes Due to Fire Hazard.

According to the CPSC, “[t]he electrical receptacles can overheat when in use, posing a fire ... Continue Reading