Fire

Careless Smoking Causation Defense Goes Up in Smoke in Connecticut


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In Conn. Interlocal Risk Mgmt. Agency v. Jackson, 2019 Conn. LEXIS 230 (Sept. 1, 2019) (Conn. Interlocal), the Supreme Court of Connecticut considered a careless smoking case and whether, as a matter of first impression, Connecticut should adopt the alternative liability doctrine first set forth in Summers v. Tice, 199 P.2d 1 (Cal. 1948). Recognizing that the doctrine is a sound one, the court adopted it for cases proceeding in Connecticut. Continue reading

This entry was posted in Connecticut, Negligence, Subrogation and tagged , , , .
Gavel

“Slow and Steady Doesn’t Always Win the Race” – Applicability of a Statute of Repose on Indemnity/Contribution Claims in New Hampshire


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In Rankin v. South Street Downtown Holdings, Inc., 2019 N.H. LEXIS 165, the Supreme Court of New Hampshire considered, pursuant to a question transferred by the trial court, whether RSA 508:4-b, the statute of repose for improvements to real property, applies to indemnity and contribution claims. The court concluded that based upon the plain reading of the statute, it applies to indemnity and contribution claims. As noted by the court, a holding to the contrary would violate the intent of a statute of repose, which is to establish a time limit for when a party is exposed to liability. Continue reading

This entry was posted in Construction Defects, Contribution, Indemnification, New Hampshire, Statute of Limitations-Repose and tagged , , , , , .
Gavel

Amazon Loses – It Is a Seller Under Wisconsin’s Products Liability Law


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As most subrogation professionals know, Amazon has been fighting products liability claims across the country for some time now. While it has been largely successful in doing so in the past, in a recent decision, Wisconsin sided with the plaintiff. In the case of State Farm Fire & Cas. Co. v. Amazon.com, Inc., 2019 U.S. Dist. LEXIS 122316, 2019 WL 3304887, the United States District Court for the Western District of Wisconsin denied the motion for summary judgment filed by defendant Amazon.com, Inc. (Amazon). The court held that Amazon was so deeply involved with the transaction at issue that it was an entity that could be held strictly liable under Wisconsin law. It also held that 47 U.S.C. § 230 of the Communications Decency Act (CDA) did not immunize Amazon because its liability was not based on posting content from a third party. Continue reading

This entry was posted in Products Liability, Subrogation, Wisconsin and tagged , , .
Product Recall

Whirlpool Recalls Glass Cooktops with Touch Controls


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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 August 28, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Whirlpool Recalls Glass Cooktops with Touch Controls Due to Burn and Fire Hazards.

According to the CPSC, “[t]he recalled cooktop surface elements can turn on by themselves, posing burn and fire hazards.”

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

At Home Recalls Shag Rugs


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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 August 27, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

At Home Recalls Shag Rugs Due to Violation of Federal Flammability Standard; Fire Hazard.

The CPSC posted the following information about the hazard:

The recalled large shag rugs fail to meet the federal flammability standard for carpets and rugs, posing a fire hazard. The small shag rugs fail to meet federal labeling requirements. Small rugs are not required to meet the federal flammability standard; however, they are required to be permanently labeled with the following statement: “FLAMMABLE (FAILS U.S. DEPARTMENT OF COMMERCE STANDARD FF 2-70): SHOULD NOT BE USED NEAR SOURCES OF IGNITION.”

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

Ohio Court Measures the Damage to a Computer Network by Its Value to the Owner, Not Its Fair Market Value


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In Westfield Insurance Group v. Silco Fire & Security, 2019 Ohio App. LEXIS 2810, the Court of Appeals of Ohio, Fifth Appellate District addressed whether the trial court properly instructed the jury that the applicable measure of damages for damage done to a computer network was the network’s replacement cost value rather than its fair market value. Based on the unique circumstances of the case, the Court of Appeals held that the trial court did not abuse its discretion when it instructed the jury on the replacement cost measure of damages rather than fair market value. Continue reading

This entry was posted in Contracts, Damages - Real Property, Ohio, Subrogation and tagged , , .
Product Recall

Southwire Recalls Electrical Outlet Boxes


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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 August 20, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Southwire Recalls Electrical Outlet Boxes Due to Fire Hazard.

According to the CPSC, “[t]he electrical receptacles can overheat when in use, posing a fire hazard.”

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

In Connecticut, Contractors and Subcontractors are Presumptively in Privity for Res Judicata Purposes


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While pursuing contractors and subcontractors separately can oftentimes be a strategic move in subrogation cases involving construction defects, attorneys must be aware that proceeding in a piecemeal fashion may result in claim preclusion in the later cases. In the case of Girolametti v. Michael Horton Assocs., 2019 Conn. LEXIS 172, 2019 WL 2559548, the Supreme Court of Connecticut considered whether the issuance of an arbitration decision involving the general contractor precluded subsequent claims against subcontractors who worked on the same project. The court held that, because the subcontractors were presumptively in privity with the general contractor for purposes of res judicata and there were no facts requiring the court to depart from that presumption, the doctrine of res judicata applied and precluded the plaintiff’s claims against the subcontractors. Continue reading

This entry was posted in Arbitration, Connecticut, Construction Defects, Res Judicata and tagged , , .
Pointing out a Problem

In Indiana, Component Manufacturers Have a Limited Duty to Equip Products with Safety Features


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In reviewing a ruling on a motion for summary judgment that found that a component manufacturer owed no duty to install safety features, the Supreme Court of Indiana answered a narrow question that shifts the landscape for product liability litigation pursuant to the Indiana Product Liability Act (IPLA). Brewer v. PACCAR, Inc., 2019 Ind. LEXIS 428, involved a wrongful death claim against PACCAR, Inc. (PACCAR), the manufacturer of a glider kit that is installed on semi-trucks. The glider kit comes with a variety of optional safety features, provided they are specifically requested by the semi-truck manufacturer that integrates the kit into its end product. Continue reading

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

Superior Court Addresses Whether the Plaintiff Is the “Master of the Claim” in Post-Tincher Decision


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Since the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), parties proceeding in product liability cases in Pennsylvania often disagree about jury instructions. In Davis v. Volkswagen Grp. of Am., No. 1405 EDA 2018, 2019 Pa. Super. Unpub. LEXIS 2763, the Superior Court of Pennsylvania, in an unpublished opinion,[1] recently addressed whether the trial court gave proper jury instructions in a products liability case against Volkswagen entities, including Volkswagen Aktiengeselleschaft (Volkswagen). The court held that, despite a statement in Tincher that the plaintiff is the “master of the claim,” the trial court properly instructed the jury on both the consumer expectation test and the risk-utility test for establishing that the product at issue, a Volkswagen Passat, was in a defective condition. Continue reading

This entry was posted in Pennsylvania, Products Liability and tagged , , .