Finding Plaintiff Intentionally Spoliated Evidence, the Northern District of Indiana Imposes Sanctions


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On January 23, 2018, the Northern District of Indiana issued a decision that clarifies what constitutes spoliation of evidence under Indiana law. In Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, 2018 U.S. Dist. LEXIS 10141 (N.D. Ind.), the defendant filed a motion for sanctions, alleging that the plaintiff intentionally spoliated critical evidence. The defendant sought dismissal of the action, asserting that the plaintiff intentionally discarded and lost important physical evidence within hours of a fire that occurred while the defendant’s employees were performing work at its facility. The decision underscores the importance of taking immediate action to properly identify and secure potentially material evidence in order to satisfy ones duty to preserve pre-suit evidence and avoid any spoliation defenses and associated sanctions. Continue reading

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Consumer Product Safety Commission Recalls Goodman Manufacturing and Goodman Company Products Due to Fire Hazards


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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. Recently, the Consumer Product Safety Commission announced the following recall notices related to products that present fire hazards:

Goodman Manufacturing Recalls Modular Blowers Due to Fire Hazard
Goodman Company Recalls Packaged Terminal Air Conditioners and Heat Pumps Due to Burn and Fire Hazards.

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Fujitsu Recalls Battery Packs for Fujitsu Notebook Computers and 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 February 8, 2018, the Consumer Product Safety Commission announced the following recall related to a product that presents a fire hazard:

Fujitsu Recalls Battery Packs for Fujitsu Notebook Computers and Workstations Due to Fire and Burn Hazards

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Utah’s Supreme Court Addresses When an Insurer Can, Despite the Made Whole Doctrine, Proceed in Its Own Name


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In Wilson v. Educators Mut. Ins. Ass’n, 2017 UT 69, the Supreme Court of Utah considered whether an insurer had the right to bring a subrogation action in its own name despite the fact that its insured had not yet been made whole. The court held that, although the common law made whole doctrine generally bars an insurer from proceeding in its own name until after the insured has been made whole, the terms of an insured’s insurance policy can change the made whole doctrine. The Wilson case highlights the importance of reviewing the applicable insurance policy, in conjunction with the law of the applicable jurisdiction, to determine an insurer’s subrogation rights. Continue reading

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Lenovo Recalls ThinkPad Laptops


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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 February 6, 2018, the Consumer Product Safety Commission announced the following recall related to a product that presents a fire hazard:

Lenovo Recalls ThinkPad Laptops Due to Fire Hazard

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Vornado Air Recalls Cribside Space Heaters


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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 31, 2018, the Consumer Product Safety Commission announced the following recall related to a product that presents a fire hazard:

Vornado Air Recalls Cribside Space Heaters Due to Fire and Burn Hazards

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


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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

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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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