Author Archives: Lian Skaf

Texas Court of Appeals Confirms That, in Order to “Bring Suit” Within the Statute of Limitations Period, a Plaintiff Must Exercise Due Diligence to Serve the Complaint


This entry was posted by on .

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. The court held that, to “bring suit” within a statute of limitations period, a plaintiff must file the complaint within the statutory timeframe and use due diligence to serve the defendant with process. Continue reading

This entry was posted in Statute of Limitations-Repose, Texas and tagged , .

Supreme Court of Virginia Holds that Intentional Spoliation of Evidence is Required for an Adverse Inference Jury Instruction


This entry was posted by on .

In Emerald Point, LLC, et al. v. Hawkins, et al., 808 S.E.2d 384 (Va. 2017), the Supreme Court of Virginia considered whether a trial judge’s adverse inference instruction regarding the spoliation of evidence was warranted when there was no indication that the defendant destroyed the evidence at issue with the deliberate intent to deprive the plaintiff of a fair opportunity to use it in pending or reasonably foreseeable litigation between the parties. Continue reading

This entry was posted in Virginia and tagged , .

House Bill Clarifies Start Point for Florida’s Statute of Repose


This entry was posted by on .

The Florida legislature recently enacted a law clarifying when the ten-year statute of repose begins to run for cases involving “improvements to real property,” as that phrase is used in Florida Statute Section 95.11. House Bill 377 was signed into law on June 14, 2017 and took effect in all cases accruing on or after July 1, 2017. This amendment is significant to subrogation professionals evaluating when cases involving contractors and design professionals are time barred.

Continue reading

This entry was posted in Florida, Statute of Repose and tagged , , .

In Ohio, When a Subrogating Insurer is the Plaintiff, Defendants Should not File Contribution or Indemnification Claims Against the Insured


This entry was posted by on .

For subrogation professionals, it is important to limit the liability exposure of your insured. In cases where the insurer, as subrogee, is proceeding as the plaintiff, this means limiting any direct claims against the insured – whether for contribution or indemnity – to affirmative defenses as opposed to third-party claims. Limiting direct claims against insureds not only keeps captions clean, but avoids strategic maneuvering by the defense that could negatively impact your case. In Ohio, when a defendant tries to pursue direct claims against the insured for contribution or indemnification, practitioners should, consistent with the analysis set forth in Continental Casualty Company v. Equity Indus. Maple Heights, LLC, 2017 U.S. Dist. LEXIS 54440 (N.D. Ohio, April 10, 2017), argue that defendants can no longer attempt this maneuver and that they are limited to raising affirmative defenses against the plaintiff’s subrogor.

Continue reading

This entry was posted in Anti-Subrogation Rule, Contribution-Apportionment, Indemnification, Ohio, Subrogation and tagged , , , .

New York Appeals Court Rekindles the Spark


This entry was posted by on .

In John Trimble, et al. v. City of Albany, et al., 2016, 144 A.D.3d 1484; 42 N.Y.S. 3d 432 (N.Y. App. Div.), the Supreme Court of New York, Appellate Division, addressed the issue of governmental immunity for municipal fire companies. The court held that the plaintiff, John Trimble  (Trimble), had sufficient evidence related to the four-pronged test for establishing a “special relationship” between a municipality and a citizen for liability to attach. In addition, the court held that the defendants were not entitled to summary judgment on the issue of governmental immunity. Specifically, regarding the latter holding, the court stated that, when there is no actual choice made on the part of the government, the government’s actions cannot be considered discretionary and immunity will not apply.

Continue reading

This entry was posted in Immunity, New York and tagged , .

In New Mexico, There Can be More Than One Statute of Repose Accrual Date on Construction Projects


This entry was posted by on .

In Damon v. Vista Del Norta Dev., LLC, — P.3d –, 2016-NMCA-083, 2016 N.M. App. Lexis 52 (N.M. Ct. App.), the Court of Appeals of New Mexico addressed the trigger date for the ten-year statute of repose for a physical improvement of real property. Adopting a nuanced approach to interpreting the statute’s three-prong trigger test, the court made it clear that the type of “improvement” at issue is specific to each defendant. Thus, there can be separate statute of repose accrual dates for each different defendant.

Continue reading

This entry was posted in Construction Defects, New Mexico, Statute of Limitations-Repose and tagged , .