ELD Strikes Again! Michigan Court Hits the Brakes on Plaintiffs’ Economic Loss Claims


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In HDI Glob. SE v. Magnesium Prods. of Am., Inc., No. 360385, 2023 Mich. App. LEXIS 2602 (Magnesium Prods.), the Court of Appeals of Michigan (Court of Appeals) considered whether the lower court erred in dismissing the plaintiffs’ claim for loss of income based on the economic loss doctrine. The court found that while the defendant manufacturer owed a duty to the general public to exercise reasonable care in its manufacturing process, that duty did not apply to the economic damages alleged by the plaintiffs.

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This entry was posted in Contracts, Economic Loss Rule, Michigan, Subrogation, Uncategorized and tagged , , , .
Product Recall

Polaris Recalls RZR Pro XP and Turbo R Recreational Off-Road 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 May 18, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Polaris Recalls RZR Pro XP and Turbo R Recreational Off-Road Vehicles Due to Fire Hazard (Recall Alert).

According to the CPSC’s website, “[a] fuel leak can occur at the fuel pump assembly joint on the fuel tank in close proximity to a hot surface, posing a fire hazard.”

Product images from the CPSC website are set forth below:

 

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New York Court Enforces Economic Loss Doctrine


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The economic loss doctrine is a legal principle that has confused and frustrated subrogation practitioners since its inception. Unfortunately, once practitioners understand the basic theory, they realize how frustrating it can be. If there was any doubt about the doctrine’s effect in New York, the Appellate Division put that to rest in a recent ruling on a subrogation case in which it bolstered the economic loss doctrine defense. Continue reading →

This entry was posted in Contracts, Economic Loss Rule, New York, Products Liability and tagged , , , .

Part 1: Subrogor Problems – Handling Claims Involving an Uncooperative or Difficult Insured


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Listen to the newest episode of the Subro Sessions #podcast where we launch a new series: “Subro Trauma Center – Discussions on Common Issues that Arise in Subrogation Claims and How to Address Them,” hosted by Gus Sara, Lian Skaf and Matthew I. Ferrie. The series analyzes common symptoms of subrogation claims, diagnoses potential problems and discusses how to treat the symptoms or problems to secure a recovery. Gus, Lian and Matt share their tips and experiences in “Part 1: Subrogor Problems – Handling Claims Involving an Uncooperative or Difficult Insured” to provide an explanation as to why the #insured is integral to the #subrogation process. They also discuss what the potential outcome is when the insured is not cooperative during the investigation.

Mark your calendars for “Part 2: A Long Way From Home – Pursuing Claims Against Foreign Entities,” available on June 20th!

Check out all our other Subro Sessions podcast episodes.

This entry was posted in Podcast, Subrogation.

Montana Significantly Revises Its Product Liability Laws


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On May 4, 2023, Montana changed its product liability laws when the Governor signed SB 216, which was effective upon passage and applies to claims that accrue on or after May 4, 2023. Among the changes is the adoption of a sealed container defense and the application of comparative negligence principles in strict liability actions. Montana also adopted a defense based on certain actions not being brought within 10 years. In addition, Montana adopted a rebuttable presumption with respect to a product’s defective condition. A jury must be informed about this rebuttable presumption with respect to certain warnings claims, premarket licensing procedures or claims involving drugs and/or medical devices. The changes to the Montana Code are further described below. Continue reading →

This entry was posted in Comparative-Contributory Negligence, Contribution-Apportionment, Joint or Several Liability, Montana, Products Liability and tagged , , , , .
Product Recall

Bombardier Recreational Products (BRP) Expands Recall of Snowmobiles


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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 May 11, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Bombardier Recreational Products (BRP) Expands Recall of Snowmobiles Due to Fire Hazard (Recall Alert).

According to the CPSC’s website, “[t]he fuel injector hose retainer screw can loosen and cause a fuel leak, posing a fire hazard.”

Product images from the CPSC website are set forth below:

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Recall Alert

Vornado Recalls Steamfast and Brookstone Travel Steam Irons


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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 April 27, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Vornado Recalls Steamfast and Brookstone Travel Steam Irons Due to Fire, Burn and Shock Hazards.

According to the CPSC’s website, “[t]he power cord can become damaged near the cord bushing, which can lead to overheating of the cord, posing fire and burn hazards. In addition, cord damage near the bushing can result in exposed copper wires, posing a shock hazard.”

Product images from the CPSC website are set forth below:

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

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 May 4, 2023, the CPSC announced the following recalls related to products that present fire hazards:

  1. Berkshire Innovations Recalls Sahara Folding Food Dehydrators Due to Fire Hazard (Recall Alert). According to the CPSC’s website, “[t]he heater fan can fail and cause the components to overheat, posing a fire hazard.”
  1. Polaris Recalls MATRYX RMK KHAOS and PRO Snowmobiles Due to Fire Injury Hazard (Recall Alert). According to the CPSC’s website, “[w]hen the rider engages the throttle and brake (including the parking brake) simultaneously on the recalled snowmobiles, the brake system can overheat in the caliper/pad/brake rotor area, posing a fire hazard and risk of burn injuries to the rider.”
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Recall Alert

Moen Recalls Flo Battery Back-Ups for Flo Smart Water Monitors


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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 April 13, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Moen Recalls Flo Battery Back-Ups for Flo Smart Water Monitors Due to Fire Hazard.

According to the CPSC’s website, “[t]he lithium-ion battery back-up can overheat, posing a fire hazard.”

A product image from the CPSC website is set forth below:

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

Waiver of Subrogation and Lack of Contractual Privity Bars Commercial Tenants’ Claims


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In United States Automatic Sprinkler Corporation v. Erie Insurance Exchange, et al., No. 2SS-CT-264, 2023 Ind. LEXIS 105, the Supreme Court of Indiana (Supreme Court) reversed an order of the trial court that denied a motion for summary judgment filed by a sprinkler contractor. At issue was whether commercial tenants – one who contracted with the sprinkler contractor and others who did not – could recover for their respective property damages. The court held that under the contract’s subrogation waiver and agreement to insure, the contracting tenant waived its insurer’s rights to recover through subrogation. With respect to the non-contracting tenants, who sought to recover only property damages, the court held that the absence of contractual privity barred their recovery.

The case centered around a sprinkler system that malfunctioned and flooded the Sycamore Springs Office Complex (Landlord), causing extensive property damage to four commercial tenants. Surgery Center, one of the four tenants, requested permission from the Landlord to install a sprinkler system inside the building. Landlord agreed, in exchange for Surgery Center agreeing to be solely responsible for maintaining the sprinkler system. Surgery Center hired United States Automatic Sprinkler (Automatic Sprinkler) to both install and conduct periodic inspection and testing of the sprinkler system. The contract terms outlined the scope of work to be performed by Automatic Sprinkler and the work was limited to the inspection and testing of the sprinkler system. Although repairs and emergency services were excluded from the contract, each could be performed upon the request and authorization of Surgery Center for an additional cost. The contract also contained certain risk allocation provisions including a waiver of subrogation and an agreement to insure.

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This entry was posted in Duty, Duty, Indiana, Negligence, Privity, Subrogation, Waiver of Subrogation and tagged , , , , , , .