The Subrogation Strategist

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

Interline Brands Recalls Swivel Fittings Due to Fire Hazard.

According to the CPSC, “[t]he fittings can leak, posing a fire hazard.” The swivels are used ... Continue Reading

In Zurich Am. Ins. Co. v. Puccini, LLC, 2019 Fla. App. LEXIS 1487, 44 Fla. L. Weekly D 383, Florida’s Third District Court of Appeals considered whether a landlord’s carrier, Zurich American Insurance Company (Zurich), was precluded from pursuing a subrogation claim against the landlord’s tenant, Puccini, LLC (Puccini), for fire-related damages. After the fire, Zurich paid its insured, Lincoln-Drexel Waserstein, Ltd. (Lincoln), over $2.1 million. Zurich then proceeded with an action against Puccini. Puccini filed for summary judgment arguing that it was an additional insured under the Zurich policy. The trial court agreed with Puccini and dismissed the action. Zurich then appealed the case to Florida’s Third District Court of Appeals. Finding that the lease contemplated both liability on the part of the tenant and indemnification in favor of the landlord, the court held that the tenant was not an implied co-insured under Zurich’s policy. Thus, the court allowed Zurich’s subrogation action.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. Recently, the CPSC announced the following recalls related to products that present fire hazards:

Kubota Recalls Zero Turn Mowers Due to Fire Hazard (March 20, 2019);

American Honda Recalls Portable Generators Due to Fire and Burn Hazards (March 20, 2019);

Bulk ... Continue Reading

In re 3M Bair Hugger Litig., 2019 Minn. App. LEXIS 11, the Minnesota Court of Appeals analyzed the applicable standard for determining whether or not expert opinion testimony based on a novel scientific theory is admissible. Using the Frye-Mack standard, the court reinforced that if an expert opinion involves a novel scientific theory, the underlying evidence used to formulate that theory must be generally accepted in the relevant scientific community. The court further articulated the standard by confirming that, pursuant to Minn. R. Evid. 702, the Frye-Mack applies to novel scientific theory, not novel science. Once the standard is deemed applicable, the court must find the novel scientific theory to be generally accepted in the scientific community to admit the expert’s testimony. Although 3M does not discuss subrogation matters, its analysis should apply with equal force to opinions offered by experts in subrogation cases.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 March 14, 2019, the CPSC announced the following recalls related to products that present fire hazards:

Kawasaki USA Recalls Off-Highway Utility Vehicles Due to Fuel Leak, Fire Hazards;

Brush Art Recalls WIC Nutrition Plates Due to Fire Hazard; and

Tech Gear 5.7 ... Continue Reading

In Texas, an action against a licensed/registered professional arising from the provision of professional services requires the plaintiff to file a “Certificate of Merit” (COM), which is an affidavit from a third-party professional setting forth the theory of liability against the professional. Tex. Civ. Prac. & Rem. Code § 150.002. The COM must be filed contemporaneously with the complaint, unless the following two conditions, contained within Section 150.002(c), are both satisfied. First, the action must be filed within ten days of the expiration of the statute of limitations or repose. Second, the plaintiff must specifically allege in its initial petition against the professional that there is insufficient time to obtain a COM before the statute of limitations or repose expires. In such cases, a court will grant the plaintiff a 30-day extension to file a COM and the plaintiff may obtain further extensions from the court for “good cause.” If a plaintiff fails to comply with the COM requirement, Section 150.002(e) requires the court to dismiss the complaint and the dismissal “may be with prejudice.”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 March 12, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

HP Expands Recall of Batteries for Notebook Computers and Mobile Workstations Due to Fire and Burn Hazards.

According to the CPSC, “[t]he lithium-ion ... 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 March 8, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

TJX Recalls Heating Pads Due to Fire and Burn Hazards; Sold Exclusively at T.J. Maxx and Marshalls Stores.

According to the CPSC, “[t]he heating pads can ... Continue Reading

In Netherlands Ins. Co. v. Cellar Advisors, LLC, 2019 U.S. Dist. Lexis 10655 (E.D. Mo.), the United States District Court for the Eastern District of Missouri considered the scope of a waiver of subrogation clause in two wine storage agreements. The court held that the subrogation waivers were limited in scope and, potentially, did not apply to the damages alleged in the pleadings. This case establishes that, in Missouri, waivers of subrogation are narrowly construed and cannot be enforced beyond the scope of the specific context in which they appear.Continue Reading

In Hexagon Holdings Inc. v. Carlisle Syntec, Inc. No. 2017-175-Appeal, 2019 R.I. Lexis 14 (January 17, 2019), the Supreme Court of Rhode Island, discussing claims associated with allegedly defective construction, addressed issues involving intended beneficiaries to contracts and the application of the economic loss doctrine. The court held that, based on the evidence presented, the building owner, Hexagon Holdings, Inc. (Hexagon) was not an intended third-party beneficiary of the subcontract between the general contractor (A/Z Corporation) and the subcontractor, defendant McKenna Roofing and Construction, Inc. (McKenna). In addition, the court held that, in the context of this commercial construction contract, the economic loss doctrine applied and barred Hexagon’s negligence claims against McKenna.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 March 5, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Arctic Cat Recalls Textron Off-Highway Utility Vehicles Due to Fuel Leak and Fire Hazard.

According to the CPSC, the “[f]uel can leak from the fuel line, posing a ... Continue Reading

In United Services Automobile Association v. Broan-Nutone, LLC, No. 218-2017-CV-01113,[1] the Superior Court of Rockingham County, New Hampshire recently considered whether the eight-year statute of repose for improvements to real property applied to the manufacturer of a ceiling ventilation fan that was installed in the property during its original construction. The court held that New Hampshire’s statute of repose did not apply to the manufacturer because it was not involved in incorporating its product into the property.Continue Reading