In William Lansing v. Doe, 2019 Ore. App. LEXIS 1564, the Court of Appeals of Oregon considered whether the Economic Loss Doctrine (ELD) applied to the plaintiff’s claims based on purportedly faulty construction work in a home. In determining that damage to persons or property is not a purely economic loss in the context of the ELD, the court concluded that the plaintiff could proceed with a negligence claim against a contractor that performed work on the home. Continue reading
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. However, states are increasingly attempting to define the scope of when the “gist of the action” is based in contract only. In Tingler v. Graystone, 834 S.E.2d 244 (Va. 2019), the Supreme Court of Virginia defined that scope in terms of new home construction. The court defined the “source of duty rule” by holding that claims of nonfeasance sounding only in contract do not give rise to an independent tort claim. The court also reiterated its application of the economic loss doctrine, stating that, when negligent actions result in damage to property other than the product itself, there can be a viable tort claim. 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 January 14, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:
The Thompson’s Company Recalls Aerosol Waterproofing Wood and Masonry Protectors Due to Fire Hazard.
According to the CPSC, “[t]he contents of the cans can react with the package, causing rust to form along the can seam, which could spread to other areas of the can and create pinhole leaks. Leaking propellant poses a fire hazard when it comes into contact with sources of ignition. Leaking sealer can also result in property damage.”
In D’Allesandro v. Lennar Hingham Holdings, LLC, C.A. No. 17-cv-12567-IT, 2019 U.S. Dist. LEXIS 185874, the United States District Court for the District of Massachusetts recently discussed a case against a general contractor and its related entities, all of whom were involved in the construction of a multi-phase construction project. The court held that, in this context, completion of the “improvement” – which was the whole project, rather than each individual phase – triggered the six-year statute of repose. The court also held that the plaintiffs’ misrepresentation, breach of fiduciary duty and unfair business practices claims were not claims based on the design and construction of the improvement and, thus, were not subject to the statute of repose.
In Westfield Ins. Group v. Pure Renovations, LLC, 2019-Ohio-4773, 2019 Ohio App. LEXIS 4829, the Court of Appeals of Ohio considered whether the lower court properly granted the defendant’s summary judgment motion. In its motion, the defendant argued that the plaintiff could not prove that the defendant’s conduct was the proximate cause of the fire at issue because the plaintiff’s liability expert identified two possible causes of the fire. The Court of Appeals, finding issues of fact remain as to whether the defendant was solely responsible for both possible causes, reversed the summary judgment ruling. This case establishes that, in Ohio, if all likely causes implicate solely the defendant’s alleged negligent conduct, a plaintiff’s inability to identify, definitively, one cause of a loss does not necessarily preclude the plaintiff from establishing proximate cause.
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 10, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:
Bass Pro Recalls MR. STEAK™ Gas Grills Due to Fire Hazard.
According to the CPSC, “[t]he gas regulator hose with attached fuel gauge can melt if it comes in contact with the bottom of the grill’s firebox, posing a fire hazard.”
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 6, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:
WilliamsRDM Recalls Cooktop Fire Suppressors Due to Risk of Failure to Activate and Suppress Fires.
According to the CPSC, “[t]he StoveTop FireStop (STFS) Rangehood and Microhood Automatic Cooktop Fire Suppressors can fail to activate the sealed openings that allow the suppressant powder to feed out of the canister and suppress the fire.”
Idaho is the latest of several states that now recognize an independent tort against third parties that willfully compromise evidence in an attempt to interfere with a potential civil lawsuit. Courts have long provided remedies for evidence spoliation when the wrongdoer is a direct party to the litigation, such as providing an adverse inference instruction against the spoliating party. However, courts have not always granted relief to plaintiffs alleging third party spoliation. In Raymond v. Idaho State Police, 451 P.3d 17 (Idaho 2019), the Supreme Court of Idaho formally adopted the tort of Intentional Interference With A Prospective Civil Action By Spoliation Of Evidence By A Third Party (Third Party Spoliation). Adopting this tort provides an avenue of spoliation relief against parties who are not part of the underlying civil lawsuit. 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 November 26, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:
Yamaha Recalls Portable Generators Due to Fire and Burn Hazards.
According to the CPSC, “[t]he portable generator’s fuel tank can leak gasoline, posing fire and burn hazards.”
In Joella v. Cole, 2019 PA Super. 313, the Superior Court of Pennsylvania recently considered whether a tenant, alleged by the landlord’s property insurance carrier to have carelessly caused a fire, was an implied co-insured on the landlord’s policy. The court found that the tenant was an implied co-insured because the lease stated that the landlord would procure insurance for the building, which created a reasonable expectation that the tenant would be a co-insured under the policy. Since the tenant was an implied co-insured on the policy, the insurance carrier could not maintain a subrogation action against the tenant. This case confirms that Pennsylvania follows a case-by-case approach when determining whether a tenant was an implied co-insured on a landlord’s insurance policy. Continue reading