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 June 2, 2022, the CPSC announced the following recall related to a product that presents a fire hazard:

DEMDACO Recalls Microwavable Bowl Holders Due to Fire Hazard.

According to the CPSC’s website, “[t]he bowl holder’s fabric can char after being microwaved ... 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

For all cases filed after May 13, 2022, Georgia has amended its apportionment of fault statute, O.C.G.A. § 51-12-33. The amendment affects subsection (b), which formerly stated that in actions brought against “more than one person for injury to person or property,” the amount of damages awarded, after taking a reduction for the plaintiff’s percentage of fault, shall be apportioned among the person or persons liable according the each person’s percentage of fault. It also eliminated joint liability and the right of contribution. The amended subsection (b) now applies to actions brought “against one or more persons,” thus allowing courts to apply the statute to single-defendant lawsuits.Continue Reading

Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling.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 May 12, 2022, the CPSC announced the following recall related to a product that presents a fire hazard:

Yamaha Recalls Wolverine RMAX Off-Road Side-By-Side Vehicles Due to Fire and Explosion Hazards (Recall Alert).

According to the CPSC’s website, “[t]he ... 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 May 5, 2022, the CPSC announced the following recall related to a product that presents a fire hazard:

Santa Cruz Bicycles Recalls Heckler 9 Electric Bicycles Due to Fall and Fire Hazards.

According to the CPSC’s website, “[t]he latch mechanism that holds the ... Continue Reading

In 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., No. 2021-CA-0671, 2022 La. App. LEXIS 651 (Bohn Motor), the Court of Appeals of Louisiana for the Fourth Circuit (Court of Appeals) considered whether a subrogation waiver in an AIA construction contract was enforceable and, if so, whether the waiver also protected subcontractors that were not signatories to the contract. The lower court granted the defendants’ motion for summary judgment based on the subrogation waiver in the construction contract. The plaintiffs appealed the decision, arguing that the subrogation waiver violated Louisiana’s anti-indemnification statute. The plaintiffs also argued that even if enforceable, the subrogation waiver did not apply to the defendant subcontractors since they were not parties to the contract. The Court of Appeals ultimately held that the subrogation waiver did not violate the anti-indemnification statute because the waiver did not shift liability, which the statute was intended to prevent. In addition, the Court of Appeals found that the contract sufficiently satisfied the required elements for the defendant subcontractors to qualify as third-party beneficiaries of the contract.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 21, 2022 and April 28, 2022, the CPSC announced the following recalls related to products that present fire hazards:

1. Best Buy Recalls Insignia™ Air Fryers and Air Fryer Ovens Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he air fryers ...

In Maynard v. Snapchat Inc., No. S21G0555, 2022 Ga. LEXIS 68, the Supreme Court of Georgia reversed and remanded an appellate court decision that dismissed the popular mobile app Snapchat from suit. Plaintiffs Wentworth and Karen Miller (collectively, Plaintiffs) were struck by a driver who was allegedly using the popular social media app at the time of the accident. More specifically, the Plaintiffs alleged the driver was using the Snapchat “Speed Filter” feature, which displays and records your speed on camera. Users can then send video messages to friends that display the speed you were traveling at the time the video was taken. The Plaintiffs alleged that the app was negligently designed and Snapchat was at fault for promoting unsafe driving through use of the Speed Filter.Continue Reading

On April 25, 2022, the U.S. Supreme Court granted certiorari of a case in which the Pennsylvania Supreme Court held that an out-of-state corporation’s mere registration to conduct business within the Commonwealth did not subject the foreign company to general personal jurisdiction in Pennsylvania. In Mallory v. Norfolk Southern Railway Company, 266 A.3d 542 (Pa., December 22, 2021), the unanimous, bipartisan Pennsylvania Supreme Court exhaustively analyzed the history, nature and extent of general personal jurisdiction. In light of the past decade’s U.S. Supreme Court rulings on personal jurisdiction, the Pennsylvania Court believed that the legislative “scheme of conditioning the privilege of doing business in the Commonwealth on the submission of the foreign corporation to general jurisdiction in Pennsylvania courts strips foreign corporations of the due process safeguards guaranteed” by the U.S. Constitution. In so holding, Pennsylvania joined the wide majority of courts in sister states which had ruled similarly.Continue Reading