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 July 25, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. Ophanie Area Rugs Recalled Due to Fire Hazard; Violation of Federal Flammability Regulations; Sold Exclusively on Amazon.com by Ophanie. According to the CPSC’s website, “[t]he recalled area rugs violate the mandatory federal flammability regulations for carpets and rugs, posing a fire hazard.”
  2. Kawasaki USA Recalls Mule PRO 1000 Off-Highway Utility Vehicles Due to Fire Hazard. According to the CPSC’s website, “[w]hen starting the engine, improper combustion can occur, posing a fire hazard.”
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Definitions Matter in Illinois: Tenant Held Liable Only for Damage to Apartment Unit


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In Phila. Indem. Ins. Co. v. Gonzalez, No. 1-23-0833, 2024 Ill. App. Unpub. LEXIS 1372, the Appellate Court of Illinois considered whether the terms of a lease agreement limited a tenant’s liability for fire damages, a fire caused by her negligence, to her apartment unit only. The plaintiff insured the subject apartment building, which incurred damage to several units as result of a fire in the tenant’s unit. The lease defined “Premises” as the specific apartment unit occupied by the tenant and held the tenant responsible for damage caused to the Premises. While the court found that the lease permitted the plaintiff to subrogate against the tenant, it held that the lease terms limited the damages to the tenant’s apartment unit only.

In Gonzalez, the plaintiff’s insured owned a multi-unit apartment building in Chicago. In September 2019, the building owner entered into a lease agreement with the defendant for apartment Unit 601. The lease stated that Unit 601 was the “Leased Address (Premises).” Another provision stated that building owner “hereby leases to Tenant(s) and Tenant(s) hereby leases from Landlord(s) for use as a private dwelling only, the Premises, together with the fixtures and appliances (if any) in the premises…” The lease also stated that “Tenant shall be liable for any damage done to the premises as a result of Tenant’s or Tenant’s invitees, guests or others authorized to reside in the Premises [sic] direct action, negligence, or failure to inform Landlord of repairs necessary to prevent damage to the Premises.”

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This entry was posted in Illinois, Implied-Co-Insured, Landlord-Tenant, Subrogation, Sutton Doctrine and tagged , , , .

West Virginia Addresses Its Strict Liability Standard


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Working with an expert to support a product defect theory of liability is hard enough as it is. However, when the standard for strict liability is considered, properly supporting such a theory is even harder. A commonly overlooked aspect of products liability is knowing the specific state standard that needs to be met and preparing for such a standard with your expert. Upon review of a certified question from a federal appeals court, the Supreme Court of Appeals of West Virginia (Supreme Court of WV) recently addressed its standard for strict products liability.

In Judith A. Shears and Gary F. Shears, Jr. v. Ethicon, Inc., No. 23-192, 2024 W.Va. LEXIS 272, petitioners Judith and Gary Shears (the Shears) were several of more than 28,000 plaintiffs to file cases against respondent Ethicon, Inc. (Ethicon) alleging damages from the use of its Tension-Free Vaginal Tape. The Shears filed suit in the United States District Court for the Southern District of West Virginia (District Court), asserting claims that included strict liability based on a defective product design. Ethicon challenged the court’s consolidation of the case with others similarly situated, arguing that the Shears did not offer an alternative design that would have materially reduced the plaintiff’s injuries.

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Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate them – Part 2


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The newest episode of the Subro Sessions podcast, is hosted by Gus Sara, Partner, and Michael DeBona, Counsel, who are joined by guest J. Pablo Ross, PE, of Ross Engineering. The episode, entitled “Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 2,” gives insight into the role of the attorney in a joint-evidence investigation, steps that subrogation professionals and experts take to complete the analysis, make appropriate recommendations to the client and the process of evidence lab examinations.

Listen to all of our episodes here.

You can also listen to Subro Sessions on Apple Podcasts and Spotify.

This entry was posted in Podcast, Subrogation, Water Loss 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 July 11, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. Best Lighting Products Recalls High Bay LED Light Fixtures Due to Fire Hazard. According to the CPSC’s website, “[p]lastic pins securing the LED board can degrade, allowing the energized LED board to come loose and contact the lens or combustible materials, posing a fire hazard.”
  2. Atomi Recalls Smart Heaters Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he recalled smart heaters can turn on without user input, posing fire and burn hazards.”
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Amazon Can be Liable in Louisiana


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In June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims.

Amazon Can be a “Seller” Under the Louisiana Products Liability Act

Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program.

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

Oh, THAT Contract: Ohio Court Bars Plaintiff’s Negligence Claim Based on Subrogation Waiver and Accelerated Limitations Period in Contract


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In Ohio Sec. Ins. Co v. Brakefire, Inc., CA. No. 5:24-cv-267, 2024 U.S. Dist. LEXIS 97606 (Brakefire), the United States District Court for the Northern District of Ohio considered whether a subrogating plaintiff’s negligence claim against a fire sprinkler maintenance company was barred by the maintenance contract between the parties. The court held that even though the plaintiff only asserted a negligence claim, the action was essentially rooted in the contract and, thus, the subrogation waiver and accelerated one-year limitations period in the contract barred the plaintiff’s action entirely. In addition, the court held that because the claim was based on the obligations set forth in the contract, the plaintiff could not proceed in tort.

In Brakefire, the plaintiff’s insured, Skyways Petroleum, LLC owned and operated a Comfort Inn & Suites Hotel (Comfort) in Kent, Ohio. Prior to February 2022, Comfort contracted with defendant Brakefire, Inc. (Brakefire) for maintenance of the fire suppression sprinkler system.  The contract contained a limitation of liability provision which stated that no action shall be brought against the service provider “more than one (1) year after the accrual of the cause of action.” The provision also stated that the parties “agree that their respective insurance companies shall have no right of subrogation against the other on account thereof.” In February 2022, the hotel experienced a severe water loss caused by a sprinkler pipe freezing and bursting. As the hotel’s property insurance carrier, the plaintiff paid over $3.5 million to repair the damages.

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This entry was posted in Contracts, Independent Duty, Limitation of Liability, Negligence, Ohio, Statute of Limitations - Contractual, Subrogation, Waiver of Subrogation and tagged , , , , , , , .

Comsumer 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 June 27, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. Baseus Magnetic Wireless Charging Power Banks Recalled Due to Fire Hazard; Imported by Shenzhen Baseus Technology. According to the CPSC’s website, “[t]he lithium-ion battery in the power banks can overheat, posing a fire hazard.”
  2. Southern Telecom Recalls Brookstone TurboVac Handheld Rechargeable Vacuums Due to Fire Hazard; Sold Exclusively at Belk. According to the CPSC’s website, “[t]he vacuums can short circuit during or after charging the battery, posing a fire hazard.”

 

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Recall Alert

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 June 20, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. myCharge Recalls POWER HUB All-In-One Portable Chargers Due to Fire and Burn Hazards; Sold Exclusively at Costco. According to the CPSC’s website, “[t]he recalled portable chargers can overheat while charging, posing fire and burn hazards.”
  2. Goal Zero Recalls Yeti Link Modules with EC8 Cables Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he connection between the Yeti Link Expansion modules and the cables can overheat and melt, posing fire and burn hazards.”
  3. StyleCraft Recalls Instinct Cordless Hair Clippers Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he lithium-ion battery in the recalled clippers can overheat, posing fire and burn hazards.”
  4. Orly Recalls Lavender Scented Candles in a Round Wooden Bread Bowl Due to Fire and Burn Hazards; Sold Exclusively at Cracker Barrel Old Country Store. According to the CPSC’s website, “[t]he candle’s flames can reach excessive heights and can ignite the bowl, posing fire and burn hazards.”

 

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Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 1


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The newest episode of the Subro Sessions podcast, is hosted by Gus Sara, Partner, and Michael DeBona, Counsel, who are joined by guest J. Pablo Ross, PE, of Ross Engineering. The episode, entitled “Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 1,” explores the most common property damage claim our subrogation team encounters. Gus, Michael and Pablo define the causes, types of losses including product failures, HVAC failures, pipe freezes, overflows and give an overview of what a typical investigation looks like when developing a subrogation claim.

Be sure to mark your calendar for Part 2, being released on July 16.

Listen to all of our episodes here.

You can also listen to Subro Sessions on Apple Podcasts and Spotify.

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