The Subrogation Strategist

This episode of Subro Sessions, hosted by associates Zachariah Sigda and Katherine Dempsey, entitled, “Insured Made Whole Doctrine: Texas and Washington State,” dives into the topic of the made whole doctrine. Zachariah and Katherine define the made whole doctrine and explain how the doctrine applies in both Texas and Washington state courts, using those states to show how the doctrine can vary state-to-state. Thus, it is important for subrogation professionals to consider the made whole doctrine before pursuing recovery.

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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 15, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Trader Joe's Company Recalls Mango Tangerine Scented Candles Due to Fire Hazard. According to the CPSC’s website, “[t]he candle flame can spread from the ...

In L’Oreal USA, Inc. v. Burroughs, 372 Ga. App. 30, 2024 Ga. App. LEXIS 250, the Court of Appeals of Georgia (Appellate Court) considered whether Georgia’s ten-year statute of repose for products liability precluded strict liability and/or negligence claims where the product, allegedly causing injury, was first purchased more than 10 years ago, but new containers of the same product were purchased within the last 10 years. The Appellate Court found that the “first sale” triggers the products liability statute of repose.

In Burroughs, Kiara Burroughs (Burroughs) alleged that she continuously used chemical hair relaxers from the age of six to twenty-five. In 2018, Burroughs was diagnosed with uterine fibroids, which caused her significant health problems. In October 2022, a scientific health study was released finding an association between chemical hair relaxers and uterine cancers. On October 27, 2022, Burroughs filed her original complaint, including claims for strict liability, negligence, and failure-to warn against L’Oreal USA, Inc. and others (collectively, Defendants). Defendants filed a Motion to Dismiss based, in part, on the statute of repose.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 8, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Samsung Recalls Slide-In Electric Ranges Due to Fire Hazard.

According to the CPSC’s website, “[f]ront-mounted knobs on the ranges can be activated by ... 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 1, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Mattress Pads Recalled Due to Fire Hazard; Violation of Federal Mattress Pad Flammability Regulation; Manufactured by Avocado Mattress. According to 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 July 25, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Ophanie Area Rugs Recalled Due to Fire Hazard; Violation of Federal Flammability Regulations; Sold Exclusively on Amazon.com by Ophanie. According to the ...

In Phila. Indem. Ins. Co. v. Gonzalez, No. 1-23-0833, 2024 Ill. App. Unpub. LEXIS 1372, the Appellate Court of Illinois considered whether the terms of a lease agreement limited a tenant’s liability for fire damages, a fire caused by her negligence, to her apartment unit only. The plaintiff insured the subject apartment building, which incurred damage to several units as result of a fire in the tenant’s unit. The lease defined “Premises” as the specific apartment unit occupied by the tenant and held the tenant responsible for damage caused to the Premises. While the court found that the lease permitted the plaintiff to subrogate against the tenant, it held that the lease terms limited the damages to the tenant’s apartment unit only.

In Gonzalez, the plaintiff’s insured owned a multi-unit apartment building in Chicago. In September 2019, the building owner entered into a lease agreement with the defendant for apartment Unit 601. The lease stated that Unit 601 was the “Leased Address (Premises).” Another provision stated that building owner “hereby leases to Tenant(s) and Tenant(s) hereby leases from Landlord(s) for use as a private dwelling only, the Premises, together with the fixtures and appliances (if any) in the premises…” The lease also stated that “Tenant shall be liable for any damage done to the premises as a result of Tenant’s or Tenant’s invitees, guests or others authorized to reside in the Premises [sic] direct action, negligence, or failure to inform Landlord of repairs necessary to prevent damage to the Premises.”Continue Reading

The newest episode of the Subro Sessions podcast, is hosted by Gus Sara, Partner, and Michael DeBona, Counsel, who are joined by guest J. Pablo Ross, PE, of Ross Engineering. The episode, entitled “Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 2,” gives insight into the role of the attorney in a joint-evidence investigation, steps that subrogation professionals and experts take to complete the analysis, make appropriate recommendations to the client and the process of evidence lab examinations.

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Working with an expert to support a product defect theory of liability is hard enough as it is. However, when the standard for strict liability is considered, properly supporting such a theory is even harder. A commonly overlooked aspect of products liability is knowing the specific state standard that needs to be met and preparing for such a standard with your expert. Upon review of a certified question from a federal appeals court, the Supreme Court of Appeals of West Virginia (Supreme Court of WV) recently addressed its standard for strict products liability.

In Judith A. Shears and Gary F. Shears, Jr. v. Ethicon, Inc., No. 23-192, 2024 W.Va. LEXIS 272, petitioners Judith and Gary Shears (the Shears) were several of more than 28,000 plaintiffs to file cases against respondent Ethicon, Inc. (Ethicon) alleging damages from the use of its Tension-Free Vaginal Tape. The Shears filed suit in the United States District Court for the Southern District of West Virginia (District Court), asserting claims that included strict liability based on a defective product design. Ethicon challenged the court’s consolidation of the case with others similarly situated, arguing that the Shears did not offer an alternative design that would have materially reduced the plaintiff’s injuries.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 July 11, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Best Lighting Products Recalls High Bay LED Light Fixtures Due to Fire Hazard. According to the CPSC’s website, “[p]lastic pins securing the LED board can ...