Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant

This entry was posted by Gus Sara on February 20, 2019.

In Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018), the Court of Appeals of Indiana considered whether a landlord’s carrier could bring a subrogation claim against a commercial tenant for fire-related damages when the lease, which did not reference subrogation, explicitly required the landlord to maintain fire insurance coverage for the leased premises. The court held that subrogation was barred because the provision requiring the landlord to maintain fire insurance established an agreement to provide both parties with the benefits of insurance. The Youell case establishes that, in Indiana, if the lease explicitly states that the landlord will maintain fire casualty insurance for the building, the lease evidences an agreement by the parties to shift the risk of loss to the insurer. This agreement bars a landlord’s insurance carrier from subrogating against a commercial tenant in the event of a casualty. Continue reading →

This entry was posted in Contracts, Indiana, Landlord-Tenant, Subrogation and tagged Indiana, Subrogation.

Academy Sports + Outdoors Recalls Turkey Fryer

This entry was posted by William L. Doerler on February 19, 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 February 19, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Academy Sports + Outdoors Recalls Turkey Fryer Due to Fire Hazard.

According to the CPSC, “[t]he turkey fryer spout can leak oil, posing a fire hazard.”

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

Consumer Product Safety Commission Recalls

This entry was posted by William L. Doerler on February 15, 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 February 14, 2019, the CPSC announced the following recalls related to products that present fire hazards:

PurpleAir Recalls Power Supply Units for Air Sensors Due to Fire and Burn Hazards; and

CVB Recalls LUCID Folding Mattress-Sofas Due to Violation of Federal Mattress Flammability Standard.

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

South Carolina Clarifies the Accrual Date for Its Statute of Repose

This entry was posted by William L. Doerler on February 13, 2019.

In Lawrence v. General Panel Corp., 2019 S.C. LEXIS 1, No. 27856 (S.C. Jan. 1, 2019), the Supreme Court of South Carolina answered a certified question related to South Carolina’s statute of repose, S.C. Code § 15-3-640,[1] to wit, whether the date of “substantial completion of the improvement” is always measured from the date on which the certificate of occupancy is issued. The court held that a 2005 amendment to § 15-3-640 did not change South Carolina law with respect to the date of substantial completion. Thus, under the revised version of § 15-3-640, “the statute of repose begins to run at the latest on the date of the certificate of occupancy, even if there is ongoing work on any particular part of the project.” A brief review of prior case law may assist with understanding the court’s ruling in Lawrence. Continue reading →

This entry was posted in Construction Defects, South Carolina, Statute of Limitations-Repose and tagged South Carolina, Statute of Repose.

Delta Electronics Recalls Solar Inverters

This entry was posted by William L. Doerler on February 8, 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 February 7, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Delta Electronics Recalls Solar Inverters Due to Fire and Impact Hazards.

According to the CPSC, “[t]he capacitors can fail and allow heat to build up and the cover can eject with force from the unit, posing fire and impact hazards.”

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

In New Jersey, Workers’ Compensation Liens Are No Longer Subject to the Verbal Threshold

This entry was posted by Robert M. Caplan on January 25, 2019.

By: Robert M. Caplan, Fabianna Pergolizzi and Brett N. Tishler

The Superior Court of New Jersey, Appellate Division, recently held, in N. J. Transit Corp v. Sanchez, No. A-0761-17T3, 2018 N.J. Super. LEXIS 168 (December 4, 2018), that pursuant to N.J.S.A. 34:15-40(f) (Section 40) of New Jersey’s Workers’ Compensation Act (WCA), workers’ compensation carriers have, without question, the independent right to seek reimbursement from negligent tortfeasors for economic damages. The court’s ruling cleared up years of confusion regarding the scope of recoverability of workers’ compensation subrogation liens. As noted by the court, a carrier’s workers’ compensation lien is NOT affected by New Jersey’s verbal threshold and no-fault statutes. Continue reading →

This entry was posted in New Jersey, Workers' Compensation and tagged New Jersey, Workers’ Compensation.

TJX Recalls Aroma Home Heating Pads Due to Fire and Burn Hazards

This entry was posted by William L. Doerler on January 25, 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 may help to establish that the product was defective when it left the manufacturer’s possession and control. Despite the partial government shutdown, on January 19, 2019, TJX has announced a recall of its Aroma Home USB Heated Hottie Heating Pad. TJX announced the recall because the “heating pads can overheat during use, posing fire and burn hazards.”

To find out more about the recall, go to this website.

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

Hewlett Packard Expands Recall of Batteries Posing a Fire Risk

This entry was posted by William L. Doerler on January 25, 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 may help to establish that the product was defective when it left the manufacturer’s possession and control. Despite the partial government shutdown, Hewlett Packard has announced an expansion of the battery recall that it first announced in January of 2018. The “batteries have the potential to overheat, posing a fire and burn hazard to customers.” As stated on the recall website:

Batteries affected by this program may have been shipped with specific HP Probook 64x (G2 and G3), HP ProBook 65x (G2 and G3), HP ProBook 4xx G4 (430, 440, 450, 455, and 470), HP x360 310 G2, HP ENVY M6, HP Pavilion x360, HP 11 notebook computers and HP ZBook (17 G3, 17 G4, and Studio G3) mobile workstations sold worldwide from December 2015 through April 2018. They were also sold as accessories or provided as replacements from December 2015 through December 2018 for the above products, as well as additional products through HP or an authorized HP Service Provider, including certain HP Mobile Thin Client products.

To find out more about the recall, go to this website. The link includes a battery validation utility that you can download.

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

Minnesota Reaffirms Statutory Anti-Subrogation Rule

This entry was posted by Rahul Gogineni on January 22, 2019.

In Depositors Ins. Co. v. Dollansky, 919 N.W.2d 684 (Minn. 2018), the Supreme Court of Minnesota considered whether the anti-subrogation rule set forth in Minn. Stat. §60A.41(a) precluded a motor home lessor’s insurer, Depositors Insurance Company (Depositors), from proceeding against the motor home lessee. Finding that the lessee was an insured under the lessor’s policy, the court held that Depositors could not pursue subrogation. Continue reading →

This entry was posted in Anti-Subrogation Rule, Minnesota, Subrogation and tagged Anti-Subrogation Rule, Minnesota, Subrogation.

California Court of Appeals Holds Subrogating Carrier Cannot Assert Claims of Its Suspended Insured

This entry was posted by Lian Skaf on January 17, 2019.

In Travelers Prop. Cas. Co. of Am. v. Engel Insulation, Inc., 29 Cal. App. 5^th 830 (2018), the Third District Court of Appeals of California addressed whether a subrogating carrier can assert the rights of its corporate insured while the insured is suspended and thus barred from doing so itself. The court rejected the argument that Cal. Rev & Tax Code § 19719(b) (1998), which exempts subrogating carriers from the penalties for asserting the rights of a suspended corporation set forth in its own subsection (a), eliminated the prohibition against carriers bringing an action based on the subrogation rights of its suspended insured. Because Travelers’ claims were based solely on its derivative rights of subrogation and its corporate insured was suspended, the Court of Appeals affirmed the trial court’s ruling that Travelers had no right to bring its suit. The court’s holding reaffirms California case law that denies subrogating carriers any rights greater than those of their insureds. See Truck Ins. Exch. v. Superior Court, 60 Cal. App. 4^th 342 (1997). Continue reading →

This entry was posted in California, Parties, Subrogation and tagged California Court of Appeals Holds Subrogating Carrier Cannot Assert Claims of Its Suspended Insured.