The Subrogation Strategist

In American Fam. Ins. Co. v. NB Elec., Inc., No. A24-0377, 2025 Minn. App. LEXIS 12, the Court of Appeals of Minnesota (Court of Appeals) considered whether an insurer’s subrogation action was time barred under Minnesota’s two-year statute of limitations period. At issue was whether the statute of limitations began to run when the insured homeowner terminated the general contractor or when construction, with a new general contractor, was complete. Because the construction project did not terminate upon the replacement of the general contractor, the Court of Appeals found ... Continue Reading

The discovery rule applies to latent injuries, such that the statute of limitations does not begin to run until the plaintiff knows of or should have known of the injury. In Western World Ins. Group v. KC Welding, LLC, No. 2022-CA-00527-SCT, 2023 Miss. LEXIS 278 (KC Welding), a majority of the justices on the Supreme Court of Mississippi (Supreme Court) affirmed the trial court’s ruling that Western World Insurance Group (Insurer) filed its lawsuit one day late. Thus, the statute of limitations barred Insurer’s lawsuit.

In KC Welding, on July 12, 2018, KC Welding, LLC (KC Welding) sent an employee to Sunbelt Shavings, LLC (Sunbelt) to repair the door of a box containing wood chips. Sunbelt’s employees discovered that KC Welding employees were welding a storage bin that had not been emptied of wood chips and Sunbelt’s employees asked KC Welding’s employees to leave. After that, Sunbelt’s employees attempted to soak the area with water. Later than night, a fire started on Sunbelt’s property, apparently as the result of smoldering wood shavings, a fire that was extinguished on July 13, 2018.Continue Reading

In Nationwide Prop & Cas. Ins. Co. v. Fireline Corp., No. 1:20-cv-00684, 2023 U.S. Dist. LEXIS 104241, the United States District Court for the District of Maryland (District Court) considered whether the events giving rise to the plaintiff’s claims fell within the scope of a previously formed agreement, thereby rendering the plaintiff’s claims subject to the agreement’s time limitation and waiver of subrogation provisions. The District Court found that the claims fell within the scope of the agreement.

In Am. Auto. Ins. Co. v. FDH Infrastructure Servs. LLC., No. 3D22-1143, 2023 Fla. App. LEXIS 3662, the Court of Appeals of Florida, Third District (Court of Appeals) addressed whether Florida’s two-year statute of limitations governing professional malpractice actions or  four-year statute of limitations governing improvements to real property was applicable to a claim involving a construction accident due to erroneous structural engineering calculations. The Court of Appeals determined that the four-year statute governing improvements to real property was more specific and governed only construction-based claims and, thus, was the appropriate governing statute.

On April 13, 2023, Florida’s governor, Ron DeSantis, signed into law SB 360 which, among other things, shortens the statute of repose period for improvements to real property. The law also revises the date on which the statute of limitations period runs for these types of damage claims. Florida’s revision of this law provides further evidence of the state’s tort reform efforts.Continue Reading

On April 7, 2023, New Mexico’s governor, Michelle Lujan Grisham, signed into law New Mexico’s Right to Repair Act (Act), 2023 N.M. SB 50. The Act’s effective date is July 1, 2023. The Act applies to construction defects in dwellings, i.e., newly constructed single family housing units designed for residential use. The Act applies to not only newly constructed housing units but also to systems and other components and improvements that are part of the housing unit at the time of construction.

Pursuant to the Act, except for construction defect claims that involve an immediate ... Continue Reading

On Friday, March 24, 2023, Florida’s governor, Ron DeSantis, signed into law a tort reform bill, HB 837.  The bill impacts, among other things, bad faith actions and attorney’s fee awards.  Of particular importance to subrogation professionals are provisions impacting comparative fault, the statute of limitations and premises liability with respect to the criminal acts of third persons.

With respect to the statute of limitations, the bill amended Fla. Stat. § 95.11(3) and (4), to reduce the statute of limitations for negligence actions from four (4) years to two (2) years.

As for comparative fault, Fla. Stat. § 768.81 was amended to move Florida from a pure comparative fault jurisdiction for negligence actions to a modified comparative fault jurisdiction.  Pursuant to § 768.81(6), as revised, in a negligence action subject to that section, “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.”  Section 768.81(6), however, does not apply to actions for damages for personal injury or wrongful death arising out of medical negligence.Continue Reading

In University of Massachusetts Building Authority v. Adams Plumbing & Heating, Inc., 2023 Mass. App. Unpub. LEXIS 28, 102 Mass. App. Ct. 1107, the Appeals Court of Massachusetts (Appeals Court) considered whether the lower court properly held that the plaintiff’s breach of contract and indemnification claims were time-barred by the statute of repose because they sounded in tort.  The Appeals Court held that while the six-year statute of repose only applies to tort claims, they can also bar claims for breach of contract and indemnification if they sound in tort.  The Appeals Court affirmed the lower court’s ruling, finding that the plaintiff’s breach of contract and indemnification claims were just negligence claims disguised as non-tort claims.

In 2013 and 2014, the University of Massachusetts (UMass) retained various contractors to renovate the dining hall for one of its campus buildings, which included the installation of new ductwork for the kitchen’s exhaust system.  The dining hall opened for service in September 2014.  In the Spring of 2018, it was discovered that the ductwork for the kitchen had collapsed.  Further investigation revealed other deficiencies with the exhaust system.  On December 1, 2020, UMass filed a lawsuit against various contractors, asserting negligence, breach of contract, and indemnification. The breach of contract claims alleged breach of express warranties.Continue Reading

In Tadych v. Noble Ridge Constr., Inc., No. 100049-9, 2022 Wash. LEXIS 545, the Supreme Court of Washington (Supreme Court) considered whether the lower court erred in enforcing a one-year accelerated limitations period clause in a construction contract. The Supreme Court considered the extent to which the provision hindered the plaintiffs’ statutory rights - as set forth in Wash. Rev. Code § 4.16.310 - which provides homeowners with a six-year repose period for construction defect claims.  The court found that the contractual provision’s shortening of the time period from six years to one year was a gross deprivation of the plaintiffs’ statutory rights and was unfairly one-sided in favor of the defendant.  As such, the court held that the provision was substantively unconscionable and, thus, unenforceable.Continue Reading

In Venema v. Moser Builders, Inc., 2022 PA Super. 171, 2022 Pa. Super. LEXIS 414, the Superior Court of Pennsylvania (Superior Court) upheld an award of judgment on the pleadings from the Court of Common Pleas of Chester County (Trial Court). The Superior Court found that Pennsylvania’s 12-year Statute of Repose for improvements to real property (Statute of Repose) began to run upon the issuance of the certificate of occupancy following original construction of the home in 2003—not from the completion of repairs to the home that continued through 2008.Continue Reading

In construction or similar ongoing projects, problems often pop up. Sometimes they can pop up again and again. Making things even more complicated, one problem may affect another, seemingly new problem. When these construction problems result in property damage, timelines tend to overlap and determining when a statute of limitation begins to run for a particular claim can be difficult. Especially in states with short statute of limitations for tort claims like Texas, knowing when a statute begins to run is crucial for a subrogation professional.Continue Reading

In State Farm Fire & Cas. Co. v. Wangs Alliance Corp., No. 21-cv-10389-AK, 2022 U.S. Dist. LEXIS 26712, the United States District Court for the District of Massachusetts (District Court) considered whether a product manufacturer was barred by the Commonwealth’s six-year statute of repose for improvements to real property from joining the installer of the product as a third-party defendant. The court denied the defendant’s motion for leave to file a third-party complaint to join the installer, finding that the installer completed its work more than six years prior to the motion being filed. This case reminds us that Massachusetts’ six-year statute of repose for improvement to real property also bars a defendant’s contribution claims against third parties.Continue Reading

In Wascher v. ABC Ins. Co., No. 2020AP1961, 2022 Wisc. App. LEXIS 110 (Feb. 9, 2022), the Court of Appeals of Wisconsin considered whether the plaintiffs were barred — by Wisconsin’s 10-year statute of repose for improvements to real property claims and the six-year statute of limitations for breach of contract claims — from bringing a lawsuit against the original builders of their home. The plaintiffs alleged negligence and breach of contract against the masonry subcontractors, asserting that they improperly installed the exterior stone cladding. The court found that the plaintiffs’ claims against the original builders were time-barred.Continue Reading