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...more
The insurer’s right of subrogation is equitable in nature, even if not based in contract. However, since the insurer steps into the shoes of its insured and is limited to the rights of its insured, an integral part of the...more
The economic loss doctrine is a legal principle that has confused and frustrated subrogation practitioners since its inception. Unfortunately, once practitioners understand the basic theory, they realize how frustrating it...more
5/18/2023
In Ace American Insurance Company, et. al. v. Toledo Engineering Co., Inc., et. al., No. 18-11503, 2023 U.S. Dist. LEXIS 15222 (Ace American), the United States District Court for the Eastern District of Michigan determined...more
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...more
Subrogation professionals have always been looking for ways to defeat onerous waiver of subrogation provisions in contracts signed by insureds. However, even when contracts are unsigned, if there is intent when the contract...more
Although the focus of most subrogation cases is usually on proving liability, determining the appropriate measure of damages is just as important. Sometimes turning on a nuanced argument for recoverability, an adverse holding...more
Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to...more
Foreseeability is a tort concept that tends to permeate several aspects of legal analysis, often causing confusion in litigants’ interpretation of, and courts’ application of, foreseeability to their cases. In Cincinnati Ins....more
In Jensen v. Matute, 2020 La. App. LEXIS 160, the Court of Appeal of Louisiana considered whether the plaintiff could recover compensatory, loss of use damages following a rear-end car collision. The court held that because...more
Often times, both contract and tort claims co-exist in a subrogation matter and the line between the two can be blurred. This is especially true in the context of damages resulting from new home construction defect claims....more
1/21/2020
/ Amended Complaints ,
Appeals ,
Breach of Contract ,
Construction Contracts ,
Construction Defects ,
Construction Disputes ,
Construction Industry ,
Construction Litigation ,
Construction Project ,
Economic Loss Doctrine ,
Negligence ,
Property Damage ,
Subrogation ,
Toxic Mold ,
VA Supreme Court
For subrogation practitioners dealing with an installation-based statute of repose, knowing what is an improvement to real property is the first battle in what can, but does not have to be, a long fight. Like many other...more
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...more
The extent to which a loss scene can be altered before adversaries can legitimately cry spoliation has long been a mysterious battleground in the world of subrogation. In the case of In re Xterra Constr., LLC, No....more
7/11/2019
/ Abuse of Discretion ,
Breach of Contract ,
Destruction of Evidence ,
Discovery ,
Discovery Disputes ,
Duty to Preserve ,
Motion for Sanctions ,
Negligence ,
Spoliation ,
Subrogation ,
Vacated
Often times, properly analyzing when a statute of limitations begins to run – not just how long it runs – is crucial to timely pleading. In Dep’t of Transp. v. Seattle Tunnel Partners, 2019 Wash.App. LEXIS 281 (Was. Ct. App....more
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....more
In Travelers Prop. Cas. Co. of Am. v. Engel Insulation, Inc., 29 Cal. App. 5th 830 (2018), the Third District Court of Appeals of California addressed whether a subrogating carrier can assert the rights of its corporate...more
In Amerisure Ins. Co. v. Rodriguez, 43 Fla. L. Weekly 2225 (Fla. Dist. Ct. App., Sept. 26, 2018), the Third District Court of Appeals of Florida addressed whether a third-party spoliation claim should be litigated and tried...more
In Amica Mutual Ins. Co. v. BrassCraft Mfg., Co., 2018 U.S. Dist. LEXIS 88986 (D.R.I. May 29, 2018), the United States District Court for the District of Rhode Island addressed the question of whether the defendant was so...more
In Davison v. Debest Plumbing, Inc., 416 P.3d 943 (Ida. 2018), the Supreme Court of Idaho addressed the issue of whether plaintiffs who provided actual notice of a defective condition, but not written notice as stated in the...more
7/11/2018
/ Attorney's Fees ,
Breach of Contract ,
Construction Defects ,
General Contractors ,
ID Supreme Court ,
Negligence ,
NORA ,
Notice Requirements ,
Site Remediation ,
Subcontractors ,
Subrogation ,
Vacated
In Molina v. Gears, 2018 Tex. App. LEXIS 1978 (March 20, 2018), the Texas Court of Appeals addressed the issue of whether a plaintiff who timely-filed a complaint exercised due diligence with respect to serving the complaint....more