Recall Alert

Multiple Consumer Product Safety Commission 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. On March 14, 2019, the CPSC announced the following recalls related to products that present fire hazards:

Kawasaki USA Recalls Off-Highway Utility Vehicles Due to Fuel Leak, Fire Hazards;

Brush Art Recalls WIC Nutrition Plates Due to Fire Hazard; and

Tech Gear 5.7 Recalls Performance Heated Socks Due to Fire and Burn Hazards.

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Construction Defect

Texas Court of Appeals Strictly Enforces Certificate of Merit Requirements for Claims Against Professionals


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In Texas, an action against a licensed/registered professional arising from the provision of professional services requires the plaintiff to file a “Certificate of Merit” (COM), which is an affidavit from a third-party professional setting forth the theory of liability against the professional. Tex. Civ. Prac. & Rem. Code § 150.002. The COM must be filed contemporaneously with the complaint, unless the following two conditions, contained within Section 150.002(c), are both satisfied. First, the action must be filed within ten days of the expiration of the statute of limitations or repose. Second, the plaintiff must specifically allege in its initial petition against the professional that there is insufficient time to obtain a COM before the statute of limitations or repose expires. In such cases, a court will grant the plaintiff a 30-day extension to file a COM and the plaintiff may obtain further extensions from the court for “good cause.” If a plaintiff fails to comply with the COM requirement, Section 150.002(e) requires the court to dismiss the complaint and the dismissal “may be with prejudice.” Continue reading →

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Product Recall

HP Expands Recall of 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 March 12, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

HP Expands Recall of Batteries for Notebook Computers and Mobile Workstations Due to Fire and Burn Hazards.

According to the CPSC, “[t]he lithium-ion batteries can overheat, posing fire and burn hazards.”

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Recall Alert

TJX Recalls Heating Pads Due To Fire and Burn 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. On March 8, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

TJX Recalls Heating Pads Due to Fire and Burn Hazards; Sold Exclusively at T.J. Maxx and Marshalls Stores.

According to the CPSC, “[t]he heating pads can overheat during use, posing fire and burn hazards.”

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Signing Agreement

District Court of Missouri Limits Whining About the Scope of Waiver of Subrogation Clauses in Wine Storage Agreements


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In Netherlands Ins. Co. v. Cellar Advisors, LLC, 2019 U.S. Dist. Lexis 10655 (E.D. Mo.), the United States District Court for the Eastern District of Missouri considered the scope of a waiver of subrogation clause in two wine storage agreements. The court held that the subrogation waivers were limited in scope and, potentially, did not apply to the damages alleged in the pleadings. This case establishes that, in Missouri, waivers of subrogation are narrowly construed and cannot be enforced beyond the scope of the specific context in which they appear. Continue reading →

This entry was posted in Contracts, Missouri, Subrogation, Waiver of Subrogation and tagged , , .
Construction Defect

Rhode Island Examines a Property Owner’s Intended Beneficiary Status and the Economic Loss Doctrine in the Context of a Construction Contract


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In Hexagon Holdings Inc. v. Carlisle Syntec, Inc. No. 2017-175-Appeal, 2019 R.I. Lexis 14 (January 17, 2019), the Supreme Court of Rhode Island, discussing claims associated with allegedly defective construction, addressed issues involving intended beneficiaries to contracts and the application of the economic loss doctrine. The court held that, based on the evidence presented, the building owner, Hexagon Holdings, Inc. (Hexagon) was not an intended third-party beneficiary of the subcontract between the general contractor (A/Z Corporation) and the subcontractor, defendant McKenna Roofing and Construction, Inc. (McKenna). In addition, the court held that, in the context of this commercial construction contract, the economic loss doctrine applied and barred Hexagon’s negligence claims against McKenna. Continue reading →

This entry was posted in Construction Defects, Contracts, Economic Loss Rule, Rhode Island, Warranty-Implied and tagged , .
Product Recall

Arctic Cat Recalls Textron Off-Highway Utility Vehicles


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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 March 5, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Arctic Cat Recalls Textron Off-Highway Utility Vehicles Due to Fuel Leak and Fire Hazard.

According to the CPSC, the “[f]uel can leak from the fuel line, posing a fire hazard.”

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Time

New Hampshire’s Statute of Repose for Improvements to Real Property Does Not Apply to Product Manufacturers


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In United Services Automobile Association v. Broan-Nutone, LLC, No. 218-2017-CV-01113,[1] the Superior Court of Rockingham County, New Hampshire recently considered whether the eight-year statute of repose for improvements to real property applied to the manufacturer of a ceiling ventilation fan that was installed in the property during its original construction. The court held that New Hampshire’s statute of repose did not apply to the manufacturer because it was not involved in incorporating its product into the property. Continue reading →

This entry was posted in Construction Defects, New Hampshire, Statute of Limitations-Repose and tagged , .
Large Property Loss

Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant


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In Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018), the Court of Appeals of Indiana considered whether a landlord’s carrier could bring a subrogation claim against a commercial tenant for fire-related damages when the lease, which did not reference subrogation, explicitly required the landlord to maintain fire insurance coverage for the leased premises. The court held that subrogation was barred because the provision requiring the landlord to maintain fire insurance established an agreement to provide both parties with the benefits of insurance. The Youell case establishes that, in Indiana, if the lease explicitly states that the landlord will maintain fire casualty insurance for the building, the lease evidences an agreement by the parties to shift the risk of loss to the insurer. This agreement bars a landlord’s insurance carrier from subrogating against a commercial tenant in the event of a casualty. Continue reading →

This entry was posted in Contracts, Indiana, Landlord-Tenant, Subrogation and tagged , .
Recall Alert

Academy Sports + Outdoors Recalls Turkey Fryer


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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 19, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Academy Sports + Outdoors Recalls Turkey Fryer Due to Fire Hazard.

According to the CPSC, “[t]he turkey fryer spout can leak oil, posing a fire hazard.”

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