Gavel

Florida Adopts Daubert Standard for Expert Testimony


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Seven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible. Continue reading

This entry was posted in Evidence, Experts, Experts – Daubert, Florida and tagged , , .
Broken Bricks

Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in Construction Contracts


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In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s insured violated Wisconsin statute § 895.447, which prohibits limitations of tort liability in construction contracts. The Supreme Court affirmed the lower court’s decision that the waiver clause did not violate the statute because it merely shifted the responsibility for the payment of damages to the defendant’s insurance company. The waiver clause did not limit or eliminate the defendant’s tort liability. This case establishes that while
§ 895.447 prohibits construction contracts from limiting tort liability, a subrogation waiver clause that merely shifts responsibility for the payment of damages from a tortfeasor to an insurer does not violate the statute and, thus, is enforceable. Continue reading

This entry was posted in Construction Defects, Subrogation, Waiver of Subrogation, Wisconsin and tagged , , , , .
Large Property Loss

Texas Walks the Line on When the Duty to Preserve Evidence at a Fire Scene Arises


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The extent to which a loss scene can be altered before adversaries can legitimately cry spoliation has long been a mysterious battleground in the world of subrogation. In the case of In re Xterra Constr., LLC, No. 10-16-00420-CV, 2019 Tex. App. LEXIS 3927 (Tex. App. – Waco, May 15, 2019), the Court of Appeals of Texas, Tenth District, addressed the question of when a party has a duty to preserve evidence. The court found that the trial court abused its discretion in imposing sanctions on the defendants for the spoliation of evidence as the evidence at issue was already gone by the time the defendants knew or reasonably should have known there was a substantial chance a claim would be filed against them. Continue reading

This entry was posted in Evidence, Spoliation, Subrogation, Texas and tagged , , .
Gavel

Third Circuit Holds Amazon Liable As a Product Seller – Communications Decency Act Not Applicable to Sale and Distribution Strict Liability Claims


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Defective products harm consumers. Courts have consistently held, however, that Amazon is not liable for defective products acquired through its on-line marketplace because the company is not a “seller” and is otherwise protected by the Communications Decency Act (CDA). The United States Court of Appeals for the Third Circuit, applying Pennsylvania law, rejected both defenses in Oberdorf v. Amazon.com Inc. No.18-1041 (3rd Cir. July 3, 2019). Continue reading

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Pointing out a Problem

New York Court Takes the Bite Out of a Food Manufacturer’s Request for Destructive Testing


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Although there are times when both parties agree on the need to perform destructive tests on an object, when the parties disagree, the party seeking the destructive tests must justify its request. In Doerrer v. Schreiber Foods, Inc., et al., No. 2017-08582, 2019 N.Y. App. Div. LEXIS 4743, the Second Department of the Supreme Court of New York’s Appellate Division recently explained what a defendant moving to secure destructive testing needs to show in order to perform the testing it seeks. Continue reading

This entry was posted in Food and Beverage, New York, Products Liability and tagged , , , .
Handshake

“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties


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In Gables Construction v. Red Coats, 2019 Md. App. LEXIS 419, Maryland’s Court of Special Appeals considered whether a contractual waiver of subrogation in the prime contract for a construction project barred a third party – a fire watch vendor hired to guard the worksite – from pursuing a contribution claim against the general contractor. The court concluded that the general contractor could not rely on the waiver of subrogation clause to defeat the contribution claim of the vendor, who was not a party to the prime contract. As noted by the court, holding that a waiver of subrogation clause bars the contribution claims of an entity that was not a party to the contract would violate the intent of the Maryland Uniform Contribution Among Tortfeasors Act (UCATA). Continue reading

This entry was posted in Contribution-Apportionment, Maryland, Waiver of Subrogation and tagged , , , .
Product Recall

Consumer Product Safety Commission Announces Multiple Fireworks 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 June 26, 2019, the CPSC announced the following recalls related to fireworks products that present explosion and burn hazards:

Grandma’s Fireworks Recalls Fireworks Due to Violation of Federal Standards; Explosion and Burn Hazards;

GS Fireworks Recalls Fireworks Due to Violation of Federal Standards; Explosion and Burn Hazards; Sold Exclusively at GS Fireworks;

Patriot Pyrotechnics/Bill’s Fireworks Recalls Fireworks Due to Violation of Federal Standards; Explosion and Burn Hazards; Sold Exclusively at Patriot Pyrotechnics; and

Keystone Recalls G-Force Fireworks Due to Violation of Federal Standard; Explosion and Burn Hazards.

This entry was posted in CPSC Recalls, Products Liability and tagged .
Recall Alert

QTOP USA Recalls Led Work Light Replacement Bulbs


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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 June 25, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

QTOP USA Recalls LED Work Light Replacement Bulbs Due to Fire Hazard.

According to the CPSC, “[t]he LED replacement bulbs can overheat due to an electrical malfunction, posing a fire hazard.”

This entry was posted in CPSC Recalls, Products Liability and tagged .
Product Recall

Consumer Product Safety Commission Recalls Honeywell Smoke Sensors and H.E. Industrial Electric 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 June 21, 2019, the CPSC announced the following recalls related to products that present fire-related hazards:

Honeywell Recalls Gamewell-FCI and Notifier Photoelectric Smoke Sensors Sold with Fire Alarm Systems Due to Failure to Alert of a Fire;

H.E. Industrial Recalls Electric Garage Heaters Due to Fire Hazard.

This entry was posted in CPSC Recalls, Products Liability and tagged .
Gavel

New York Court Holds That the “Lesser of Two” Doctrine Limits Recoverable Damages in Subrogation Actions


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In New York Cent. Mut. Ins. Co. v. TopBuild Home Servs., Inc., 2019 U.S. Dist. LEXIS 69634 (April 24, 2019), the United States District Court for the Eastern District of New York recently held that the “lesser of two” doctrine applies to subrogation actions, thereby limiting property damages to the lesser of repair costs or the property’s diminution in value. Continue reading

This entry was posted in Damages, Damages - Real Property, New York, Subrogation and tagged , , .