Product Recall

Yamaha Recalls Wolverine RMAX Off-Road Side-By-Side 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 12, 2022, the CPSC announced the following recall related to a product that presents a fire hazard:

Yamaha Recalls Wolverine RMAX Off-Road Side-By-Side Vehicles Due to Fire and Explosion Hazards (Recall Alert).

According to the CPSC’s website, “[t]he recalled vehicles can have a damaged fuel tank causing fuel to leak, posing fire and explosion hazards.”

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Gavel

Waive Your Claim Goodbye: Louisiana Court Holds That AIA Subrogation Waiver Did Not Violate Anti-Indemnification Statute and Applied to Subcontractors


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In 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., No. 2021-CA-0671, 2022 La. App. LEXIS 651 (Bohn Motor), the Court of Appeals of Louisiana for the Fourth Circuit (Court of Appeals) considered whether a subrogation waiver in an AIA construction contract was enforceable and, if so, whether the waiver also protected subcontractors that were not signatories to the contract. The lower court granted the defendants’ motion for summary judgment based on the subrogation waiver in the construction contract. The plaintiffs appealed the decision, arguing that the subrogation waiver violated Louisiana’s anti-indemnification statute. The plaintiffs also argued that even if enforceable, the subrogation waiver did not apply to the defendant subcontractors since they were not parties to the contract. The Court of Appeals ultimately held that the subrogation waiver did not violate the anti-indemnification statute because the waiver did not shift liability, which the statute was intended to prevent. In addition, the Court of Appeals found that the contract sufficiently satisfied the required elements for the defendant subcontractors to qualify as third-party beneficiaries of the contract.

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This entry was posted in AIA Contracts, Contracts, Indemnification, Louisana, Waiver of Subrogation and tagged , , , , , , , .
Recall Alert

Santa Cruz Bicycles Recalls Heckler 9 Electric Bicycles


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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 5, 2022, the CPSC announced the following recall related to a product that presents a fire hazard:

Santa Cruz Bicycles Recalls Heckler 9 Electric Bicycles Due to Fall and Fire Hazards.

According to the CPSC’s website, “[t]he latch mechanism that holds the battery in place can malfunction, causing the battery to dislodge from the frame and fall to the ground, posing a fall hazard to the rider. Additionally, the latch spring can cause additional wear on the battery housing over time, posing a fire hazard.”

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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 April 21, 2022 and April 28, 2022, the CPSC announced the following recalls related to products that present fire hazards:

  1. Best Buy Recalls Insignia™ Air Fryers and Air Fryer Ovens Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he air fryers and air fryer ovens can overheat, posing fire and burn hazards.”
  1. Polaris Recalls RZR Recreational Off-Road Vehicles Due to Fire Hazard (Recall Alert). According to the CPSC’s website, “[a]n incorrectly routed battery cable can contact the prop shaft during use, which can result in an electrical short, posing a fire hazard.”
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Gavel

Oh Snap! Georgia Supreme Court Revives Suit Against Snapchat for Alleged Faulty Speed Filter


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In Maynard v. Snapchat Inc., No. S21G0555, 2022 Ga. LEXIS 68, the Supreme Court of Georgia reversed and remanded an appellate court decision that dismissed the popular mobile app Snapchat from suit. Plaintiffs Wentworth and Karen Miller (collectively, Plaintiffs) were struck by a driver who was allegedly using the popular social media app at the time of the accident. More specifically, the Plaintiffs alleged the driver was using the Snapchat “Speed Filter” feature, which displays and records your speed on camera. Users can then send video messages to friends that display the speed you were traveling at the time the video was taken. The Plaintiffs alleged that the app was negligently designed and Snapchat was at fault for promoting unsafe driving through use of the Speed Filter.

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Gavel

Personal Jurisdiction: SCOTUS to Decide if Registration by Out-of-State Corporations Confers General Jurisdiction


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On April 25, 2022, the U.S. Supreme Court granted certiorari of a case in which the Pennsylvania Supreme Court held that an out-of-state corporation’s mere registration to conduct business within the Commonwealth did not subject the foreign company to general personal jurisdiction in Pennsylvania. In Mallory v. Norfolk Southern Railway Company, 266 A.3d 542 (Pa., December 22, 2021), the unanimous, bipartisan Pennsylvania Supreme Court exhaustively analyzed the history, nature and extent of general personal jurisdiction. In light of the past decade’s U.S. Supreme Court rulings on personal jurisdiction, the Pennsylvania Court believed that the legislative “scheme of conditioning the privilege of doing business in the Commonwealth on the submission of the foreign corporation to general jurisdiction in Pennsylvania courts strips foreign corporations of the due process safeguards guaranteed” by the U.S. Constitution. In so holding, Pennsylvania joined the wide majority of courts in sister states which had ruled similarly.

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Recall Alert

Dollar Tree Recalls More than One Million Hot Glue Guns


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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 14, 2022, the CPSC announced the following recall related to a product that presents a fire hazard:

Dollar Tree Recalls More than One Million Hot Glue Guns Due to Fire and Burn Hazards.

According to the CPSC’s website, “[t]he glue gun can malfunction when plugged in, posing fire and burn hazards.”

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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 April 21, 2022, the CPSC announced the following recalls related to products that present fire hazards:

  1. Elite Comfort Solutions Recalls Nectar® Premier Mattresses Due to Failure to Meet Federal Flammability Standard; Sold Exclusively at NectarSleep.com (Recall Alert). According to the CPSC’s website, “[t]he recalled mattresses failed to meet the mandatory federal flammability standard for mattresses, posing a fire hazard.”
  1. Best Buy Recalls Insignia™ Air Fryers and Air Fryer Ovens Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he air fryers and air fryer ovens can overheat, posing fire and burn hazards.”
  1. MWA Recalls LUXE+WILLOW Heated Blankets Due to Burn and Fire Hazards. According to the CPSC’s website, “[t]he blanket can overheat if left plugged in and powered on for an extended period of time, posing fire and burn hazards.”
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House Flood

Tenants Underwater: Indiana Court of Appeals Upholds Privity Requirement for Property Damage Claims Against Contractors


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In United States Automatic Sprinkler Corp. v. Erie Ins. Exch., et al., No. 21A-CT-580, 2022 Ind. App. LEXIS 87 (Automatic Sprinkler), the Court of Appeals of Indiana (Court of Appeals) considered whether there is a privity requirement for property damage claims against contractors. The court imposed a privity requirement. The court also addressed whether a subrogation waiver in a contract with a tenant applied to damage caused by work done outside the contract, at the landlord’s request. The court held that the waiver did not apply. Continue reading

This entry was posted in Construction Defects, Indiana, Landlord-Tenant, Privity, Subrogation, Waiver of Subrogation and tagged , , , , , .
Construction Materials

Waive It Goodbye: Despite Evidence to the Contrary, Delaware Upholds an AIA Waiver of Subrogation Clause


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Subrogation professionals have always been looking for ways to defeat onerous waiver of subrogation provisions in contracts signed by insureds. However, even when contracts are unsigned, if there is intent when the contract is made – usually long before a loss occurs – a waiver of subrogation can doom what otherwise may have been a strong case. The Superior Court of Delaware considered such a scenario to determine whether a waiver of subrogation provision applied to a multimillion-dollar subrogation case.

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This entry was posted in Construction Defects, Contracts, Delaware, Waiver of Subrogation and tagged , , , .