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 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 November 10, 2016, the CPSC issued the following recall notice related to a product that presents a fire hazard:
Kidde Recalls Combination Smoke/CO Alarms Due to Alarm Failure
In Allstate Insurance Company v. ADT, LLC, No. 1:15-cv-517-WSD, 2016 U.S. Dist. LEXIS 120880 (N.D. Ga.), the United States District Court for the Northern District of Georgia addressed the question of whether a contract’s insurance and waiver of subrogation clause was an exculpatory clause that was unenforceable because it did not pass Georgia’s Prominence Test. The court held that a waiver of subrogation clause is not an exculpatory clause and, thus, its enforceability does not depend on the clause being prominently displayed.
In Damon v. Vista Del Norta Dev., LLC, — P.3d –, 2016-NMCA-083, 2016 N.M. App. Lexis 52 (N.M. Ct. App.), the Court of Appeals of New Mexico addressed the trigger date for the ten-year statute of repose for a physical improvement of real property. Adopting a nuanced approach to interpreting the statute’s three-prong trigger test, the court made it clear that the type of “improvement” at issue is specific to each defendant. Thus, there can be separate statute of repose accrual dates for each different defendant.
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 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 November 2, 2016, the CPSC issued the following recall notice related to a product that presents a fire hazard:
The recall involves 25, 30, 40, 50, 60, 65, 70, and 75-pint dehumidifiers with the following brand names: Airworks, Alen, Arcticaire, Arctic King, Beaumark, Coolworks, ComfortAire, Comfort Star, Continental Electic, Crosley, Daewoo, Danby, Danby & Designer, Dayton, Degree, Diplomat, Edgestar, Excell, Fellini, Forest Air, Frigidaire, GE, Grunaire, Hanover, Honeywell, Homestyles, Hyundai, Ideal Air, Kenmore (Canada), Keystone, Kul, Midea, Nantucket, Ocean Breeze, Pelonis, Perfect Aire, Perfect Home, Polar Wind, Premiere, Professional Series, Royal Sovereign, Simplicity, Sunbeam, SPT, Sylvania, TGM, Touch Point, Trutemp, Uberhaus, Westpointe, Winix, and Winixl.
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 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 November 1, 2016, the CPSC issued the following recall notice related to a product that presents a fire hazard:
Kikkerland Design Recalls Teapots with Stands Due to Fire Hazard