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

This entry was posted by Gus Sara on August 21, 2019.

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 Damages, Ohio, Subrogation.

Southwire Recalls Electrical Outlet Boxes

This entry was posted by William L. Doerler on August 21, 2019.

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 Products Liability.

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

This entry was posted by Lian Skaf on August 15, 2019.

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 Arbitration, Connecticut, Construction Defects.

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

This entry was posted by Shannon M. Warren on August 12, 2019.

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 Design Defect, Indiana, Products Liability.

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

This entry was posted by William L. Doerler on August 7, 2019.

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 Jury Instructions, Pennsylvania, Products Liability.

Florida Adopts Daubert Standard for Expert Testimony

This entry was posted by Michael L. DeBona on July 15, 2019.

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 Civil Procedure, Experts, Florida.

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

This entry was posted by Gus Sara on July 12, 2019.

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 Construction Defects, Exculpatory Clause, Subrogation, Waiver of Subrogation, Wisconsin.

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

This entry was posted by Lian Skaf on July 10, 2019.

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 Spoliation, Subrogation, Texas.

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

This entry was posted by Christopher Konzelmann on July 4, 2019.

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 →

This entry was posted in Pennsylvania.

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

This entry was posted by William L. Doerler on July 2, 2019.

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 Civil Procedure, Food and Beverage, New York, Products Liability.