Author Archives: William L. Doerler

California’s Right to Repair Act Applies to Construction Defects Resulting in Either Economic Loss or Property Damage


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In McMillin Albany LLC v. Superior Court, 2018 Cal. LEXIS 211 (Jan. 18, 2018), the Supreme Court of California addressed the question of whether California’s Right to Repair Act (“Act”), Civ. Code §§ 895-945.5, applies to claims where the plaintiff alleges that construction defects caused property damage. The court held that the Act – which applies to original construction intended to be sold as an individual dwelling unit – supplanted common law negligence and strict liability actions with a statutory claim under the Act. Thus, where the Act applies, the Act provides the exclusive remedy for plaintiffs seeking to recover for property damages arising from construction defects. Continue reading

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HP Recalls Batteries for Notebook Computers and Mobile Workstations


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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 January 4, 2018, the Consumer Product Safety Commission announced the following recall related to a product that presents a fire hazard:

HP Recalls Batteries for Notebook Computers and Mobile Workstations Due to Fire and Burn Hazards

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Where the Insured Has Been Made Whole, a Subrogating Insurer Proceeding in the Insured’s Name Need Not Respond to Discovery Issued to the Insured


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When an insurer files a subrogation suit in the insured’s name, questions often arise with respect to whether, by doing so, the insurer has to respond to discovery issued to the insured. In Aquatherm, LLC v. Centimark Corporation, 2017 U.S. Dist. LEXIS 85173 (C.D. Utah June 2, 2017), a case in which the insurer at issue made the insured whole, the District Court for the District of Utah answered the question in the negative. Continue reading

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Westinghouse Portable Generators Recalled by MWE Investments


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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 December 7, 2017, the Consumer Product Safety Commission announced the following recall related to a product that presents a fire hazard:

Westinghouse Portable Generators Recalled by MWE Investments Due to Fire Hazard

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Consumer Product Safety Commission Announces Numerous Hoverboard Recalls


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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. Continue reading

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Nevada Refuses to Increase Plaintiff’s Burden Of Proof for Product Liability Design Defect Claim


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In the United States, to prove a products liability claim based upon a design defect, the plaintiff must either meet: (1) the consumer-expectation test, or (2) the risk-utility test, depending upon the jurisdiction. Although Nevada has historically followed the consumer-expectation test, in a recent decision the Supreme Court of Nevada evaluated whether to adopt the more stringent risk-utility test. Ultimately, the court rejected adoption of the risk-utility test and reaffirmed its prior precedent holding that a plaintiff need only meet the consumer-expectation test. See Ford Motor Company v. Trejo, 2017 Nev. LEXIS 90 (September 27, 2017). Continue reading

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Colorado Requires Privity to Pursue Warranty of Suitability Claim Against Developer


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In Forest City Stapleton, Inc. v. Rodgers, 393 P.3d 487 (Colo. 2017), the Supreme Court of Colorado considered whether a home buyer needed privity of contract to pursue an implied warranty of suitability claim against a developer who sold a vacant lot to a professional builder. Finding that that warranty of suitability claims are contractual claims, the court held that the home buyer needed to be in privity of contract with the developer.

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BSH Home Appliances Expands Recall of Dishwashers


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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 October 20, 2017, the Consumer Product Safety Commission announced the following expanded recall related to Bosch, Gaggenau, Jenn-Air and Thermador products that present a fire hazard:

BSH Home Appliances Expands Recall of Dishwashers Due to Fire Hazard

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Contract Terms Can Impact the Accrual Date For Florida’s Statute of Repose


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When the validity of a construction defect claim depends on whether the claim is barred by the applicable state’s statute of repose, it is important to review the statute to identify when claims subject to the statute of repose accrue. In Busch v. Lennar Homes, LLC, 219 So.3d 93 (Fla. Ct. App. (5th Dist.) 2017), the Court of Appeals of Florida clarified the accrual date for the statute of repose in cases where the accrual date depends on a construction contract’s completion date. Pursuant to Busch, the date of full performance under the contract, not the building’s purchase closing date, is the date on which claims accrue.

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Saber Grills Recalls Grills and LP Regulators


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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 September 26, 2017, the CPSC announced the following recall related to a product that presents a fire hazard:

Saber Grills Recalls Grills and LP Regulators Due to Fire and Burn Hazards

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