Author Archives: Robert M. Caplan

Pennsylvania’s Supreme Court Limits The Scope Of A Builder’s Implied Warranty of Habitability

This entry was posted by Robert M. Caplan on September 9, 2014.

By: Edward A. Jaeger, Jr. and William L. Doerler

In Conway v. Cutler Group, Inc., — A.3d –, 2014 WL 4064261 (Pa.), the Supreme Court of Pennsylvania addressed the question of whether a subsequent home buyer can recover from a home builder pursuant to the builder’s implied warranty of habitability, a warranty that protects those who purchase a newly constructed home from latent defects. Concluding that a builder’s warranty of habitability is grounded in contract, the Court held that a subsequent purchaser of a previously inhabited home cannot recover damages from a builder-vendor based on the builder-vendor’s breach of the implied warranty of habitability. The Court’s decision leaves unanswered the question of whether a purchaser who is also the first user-purchaser of a new home can pursue a breach of warranty action against a builder with whom the purchaser is not in privity of contract.

In Conway, the Cutler Group, Inc. (Cutler) sold a new home to Davey and Holly Fields. The Fields subsequently sold the home to Michael and Deborah Conway. After the Conways discovered water infiltration problems in their home, they filed a one-count complaint against Cutler, alleging that Cutler breached its implied warranty of habitability. In response to the Conways’ complaint, Cutler filed preliminary objections, arguing that the warranty of habitability extends from the builder only to the first purchaser of a newly constructed home. The trial court sustained Cutler’s preliminary objections based on the lack of contractual privity between the parties and the Conways appealed the trial court’s decision. On appeal, the Superior Court reversed, stating that the implied warranty of habitability is based on public policy considerations and exists independently of any representations by the builder, and even in the absence of an express contract between the builder and the purchaser. Cutler appealed the Superior Court’s decision to the Supreme Court.

To address the question of whether the implied warranty of habitability extends to a subsequent purchaser of a used residence, the Court discussed the history of the implied warranty of habitability in Pennsylvania. As stated by the Court, the Court adopted the implied warranty of habitability in the context of new home sales to reject the traditional doctrine of caveat emptor (buyer beware) because the purchaser of a new home justifiably relies on the skill of the developer. Thus, as between the builder-vendor and the buyer, the builder should bear the risk that the home he builds is habitable and functional. In adopting the doctrine, the Court noted that the doctrine is rooted in the existence of a contract – an agreement of sale – between the builder-vendor and the buyer.

Although the Superior Court extended the doctrine to subsequent purchasers of a used residence on public policy grounds, the Supreme Court concluded that the question of whether the implied warranty of habitability should be extended to the subsequent purchaser of a used residence is a matter of public policy for the General Assembly, not the Court, to decide. Although the Court recognized that courts have the power to formulate public policy in the clearest cases, the Court found that the issue before it did not present such a case. Thus, the Supreme Court declined to extend the implied warranty of habitability beyond its current formulation, a formulation that requires privity of contract between the parties.

In reaching its decision, the Supreme Court distinguished the facts of the Conway case from the facts in Spivack v. Berks Ridge Corp., 586 A.2d 402 (Pa. Super. 1990), the case on which the Superior Court based its decision. In Spivack, the plaintiffs purchased a “yet-to-be-constructed” condominium from a developer, who was a separate and distinct entity from the builder/general contractor of the condominium. After finding deficiencies in the condominium, the plaintiffs sued the builder/general contractor based on a breach of the builder’s warranty of habitability. The Superior Court held that, where a builder knows or should know that a home’s first purchaser will not be its first user, the builder’s implied warranty must, necessarily, extend to the first user-purchaser. Thus, as stated by the Conway Court, the warranty of habitability adopted in Spivack applies only in circumstances where the first purchaser never used or occupied the home. This was not the situation that the Court addressed in Conway.

In holding that the implied warranty of habitability does not extend to a subsequent purchaser of a used residence, the Court declined to rule on the propriety of the Superior Court’s analysis in Spivack. Thus, despite the fact that the Supreme Court declined to extend the implied warranty of habitability to used home buyers who are not in privity with the builder-vendor, an injured party who falls within the Spivack fact pattern – as the first user-purchaser of a new home – should continue to assert implied warranty of habitability claims against his or her builder/general contractor. Ultimately, however, whether a first user-purchaser who is not in privity with the defendant builder will succeed on his or her implied warranty of habitability claim is, based on the analysis in Conway, an undecided question.

For more information regarding this alert, please contact Ed Jaeger (215.864.6322 / jaegere@whiteandwilliams.com) or Bill Doerler (215.864.6383 / doerlerw@whiteandwilliams.com).

This entry was posted in Construction Defects, Litigation, Pennsylvania, Warranty-Implied and tagged Implied Warranty of Habitability, Pennsylvania.

Michigan: Identifying and Exploiting the “Queen Exception” to No-Fault Subrogation

This entry was posted by Robert M. Caplan on May 30, 2014.

In Michigan, an employee’s entitlement to compensation for injuries sustained in a motor vehicle accident is governed by both the Workers’ Disability Compensation Act of 1969, MICH. COMP. LAWS ANN. § 418.801 et seq., and Chapter 31 of The Insurance Code of 1956, MICH. COMP. LAWS ANN. § 500.3101 et seq., commonly referred to as the “no-fault act.” Polkosnik v. United Canada Ins. Co., 421 N.W.2d 241, 242 (Mich. App. 1988).

PIP1 benefits payable arising from a motor vehicle accident in Michigan include, principally, (1) medical benefits unlimited in amount and duration, and (2) 85% of lost wages for up to three years. See DEPARTMENT OF INSURANCE AND FINANCIAL SERVICES, Brief Explanation of Michigan No-Fault Insurance. As of October 2013, lost wages are capped at $5,282 per month. Id. Such benefits constitute an injured worker’s “economic loss.” See generally Wood v. Auto-Owners Ins. Co., 668 N.W.2d 353, 355 (Mich. 2003).

Michigan’s no-fault legislation is no different than other no-fault legislation in regard to its purpose: The automobile insurer pays without any right of reimbursement out of any third party tort recovery. Sibley v. Detroit Auto. Inter-Ins. Exch., 427 N.W.2d 528, 530 (Mich. 1988). Moreover, just like in New York, for example, “where benefits are provided from other sources pursuant to state or federal law, the amount paid by the other source reduces the automobile insurer’s responsibility.” Id. at 530.

Under the Michigan no-fault act, an employee’s entitlement to workers’ compensation benefits is set off against her PIP benefits, thereby reducing the PIP insurer’s liability for payment. Polkosnik, 421 N.W.2d at 242. Thus, if a motorist is injured in a motor vehicle accident while operating the vehicle in the course and scope of her employment, the compensation insurer covering the motorist substitutes as the primary payor of the benefits to which the injured motorist is entitled under the no-fault act. See generally Mathis v. Interstate Motor Freight Sys., 289 N.W.2d 708 (Mich. 1980). See also Great Lakes Am. Life Ins. Co. v. Citizens Ins. Co., 479 N.W.2d 20, 24 (Mich. App. 1991) (“Although a workers’ compensation carrier is not a no-fault insurance carrier, it nevertheless “stands in the shoes” of a no-fault carrier. . . .”).

PIP insurers are entitled to reimbursement out of a motorist’s third party recovery “only if, and to the extent that, the tort recovery includes damages for losses for which [PIP] benefits were paid.” Workman v. DAIIE, 274 N.W.2d 373 (Mich. 1979). In other words, subrogation is only possible for economic damages, since PIP does not provide coverage for noneconomic damages like pain and suffering, for example.

But such subrogation is limited to several circumstances set forth in MICH. COMP. LAWS ANN. § 500.3116. Dunn v. Detroit Auto. Inter-Ins. Exch., 657 N.W.2d 153, 158 (2002). “It is now clear that an insurance carrier responsible for no-fault benefits may realize reimbursement from an insured’s third-party tort claim only in the following situations: (1) accidents occurring outside the state, (2) actions against uninsured owners or operators, or (3) intentional torts.” Citizens Ins. Co., 479 N.W.2d at 23 (citation omitted).

Since workers’ compensation benefits substitute for no-fault benefits otherwise payable in the event of a motor vehicle accident, a workers’ compensation carrier’s subrogation rights “are coextensive with those of the no-fault insurer whose liability it replaces and are thus limited to cases where there is tort recovery for basic economic loss.” Great Am. Ins. Co. v. Queen, 300 N.W.2d 895, 897 (Mich. 1980). Thus, a compensation insurer’s subrogation rights are limited to the same three exceptions enumerated in MICH. COMP. LAWS ANN. § 500.3116. And, like PIP insurers, workers’ compensation insurers are generally not subrogated for noneconomic damages—i.e., pain and suffering. Citizens Ins. Co., 479 N.W.2d at 23-24.

Unlike PIP insurers, however, workers’ compensation insurers are entitled to subrogation under an exception not available to PIP insurers: “When the carrier pays benefits which do not substitute for no-fault benefits, because they exceed no-fault benefits in amount or duration, it should be treated like all other workers’ compensation carriers and be entitled to reimbursement out of any third-party recovery.” Queen, 300 N.W.2d at 897 (emphasis added). The determination of whether a workers’ compensation carrier’s payments “exceed” PIP benefits otherwise payable “involves a factual question.” Bialochowski v. Cross Concrete Pumping Co., 407 N.W.2d 355, 360 (Mich. 1987) (subsequent case history omitted).

One Michigan appellate court has stated that “[a]ny weekly workers’ compensation benefits paid beyond that three-year period cannot properly be regarded as a substitute for benefits under the no-fault act.” Hearns v. Ujkaj, 446 N.W.2d 657, 659 (Mich. App. 1989). Thus, such benefits are recoverable in subrogation under the Queen exception. Allowing subrogation for such benefits “would work no discrimination” against motor vehicle accident victims who happen to be injured in the course or scope of employment because reimbursement is permitted only for benefits which other motor vehicle accident victims do not receive. Queen, 300 N.W.2d at 897.

Other Michigan courts have continued to apply the Queen exception to scenarios in which the compensation insurer sustains a loss that exceeds the PIP threshold in either, or both, the time and quantity set forth in the no-fault act. Identifying when theQueen exception might apply to a given state of facts is critical for ensuring that a compensation insurer can exploit the exception. It is critical that counsel be sought whenever a set of facts appears to introduce an intersection between two or more statutory schemes—such as Michigan’s Workers’ Disability Compensation Act and no-fault act—so that every opportunity for a recovery can be properly vetted and pursued.

Robert M. Caplan is Counsel with White and Williams LLP and Workers’ Compensation Subrogation Team Leader. In addition to litigating and trying cases, Rob is a frequent lecturer at national and regional conferences held by the National Association of Subrogation Professionals (NASP) where he has been a Track Leader for the Workers’ Compensation Subrogation Track. Rob can be reached at caplanr@whiteandwilliams.com and 215.864.7012.

This entry was posted in Michigan, Subrogation, Workers' Compensation and tagged No-Fault Subrogation.

New York: The “Loss Transfer” Opportunity to Recover Otherwise Non-Recoverable First-Party Benefits

This entry was posted by Robert M. Caplan on May 15, 2014.

New York’s “no-fault” legislation reflects a public policy designed to make the insurer of first-party benefits absorb the economic impact of loss without resort to reimbursement from its insured or, by subrogation, from the tortfeasor. Country Wide Ins. Co. v. Osathanugrah, 94 A.D.2d 513, 515 (N.Y. 1st Dept. 1983). The no-fault concept embodied in New York’s Insurance Law modifies the common law system of reparation for personal injuries under tort law. Safeco Ins. Co. of Am. v. Jamaica Water Supply Co., 83 A.D.2d 427, 431 (N.Y. 2nd Dept. 1981). “[F]irst party benefits are a form of compensation unknown at common law, resting on predicates independent of the fault or negligence of the injured party.” Id. at 431. The purpose of New York’s no-fault scheme is “to promote prompt resolution of injury claims, limit cost to consumers and alleviate unnecessary burdens on the courts.” Byrne v. Oester Trucking, Inc., 386 F. Supp. 2d 386, 391 (S.D.N.Y. 2005).

New York’s no-fault scheme—contained in Article 51 of its Consolidated Laws (“Comprehensive Motor Vehicle Insurance Reparations”)—requires owners of vehicles to carry insurance with $50,000 minimum limits which covers basic economic loss, i.e., first-party benefits, on account of personal injury arising from the use or operation of a motor vehicle. Basic economic loss includes, among other things: (1) medical expenses; (2) lost earnings up to $2,000 per month for three years; and (3) out-of-pocket expenses up to $25 per day for one year. N.Y. INS. LAW § 5102(a).

Where workers’ compensation insurance coverage exists for an injured motorist— i.e., where the motorist is operating a vehicle while in the course and scope of her employment—the workers’ compensation insurer must pay the injured motorist’s basic economic loss up to $50,000. N.Y. INS. LAW § 5102(b)(2). The compensation insurer in this scenario is said to become “primary.” And since first-party benefits are guaranteed regardless of fault, there is no corresponding right of subrogation for the carrier reimbursing an injured motorist for items of basic economic loss. Condon v. Hathaway, 740 N.Y.S.2d 600, 603 (N.Y. Sup. Ct. 2002).

Instead, New York provides a compensation insurer with what is referred to as “loss transfer.” Loss transfer is simply an opportunity to recover from the negligent motorist’s vehicle insurer the first-party benefits the compensation insurer became obligated to pay as a result of the accident. But the right of a compensation insurer to recover under the loss transfer exception depends on the existence of either of two conditions: At least one of the motor vehicles involved (1) weighs more than 6,500 lbs. unloaded, or (2) is used principally for the transportation of persons (e.g., taxi, bus) or property for hire (e.g., FedEx, delivery truck)1. N.Y. INS. LAW § 5105(a). If one of these two conditions is met, a compensation insurer is free to pursue a loss transfer against the negligent motorist’s vehicle insurer for the recovery of the $50,000 first-party benefits it became obligated to pay under Section 5102(b)(2).

The “sole remedy” for pursuing a loss transfer against the negligent motorist’s vehicle insurer is, without exception, arbitration. N.Y. INS. LAW § 5105(b). Thus there is no signatory requirement as arbitration is the sole remedy of any insurer seeking a loss transfer arising from a motor vehicle accident in New York. The New York Insurance Department has selected Arbitration Forums as the administrator of loss transfer arbitration and, through its regulations contained in 11 NYCRR § 65.10 (2003), has granted Arbitration Forums the authority to “make appropriate administrative rules for arbitration.”

It is important to remember that loss transfer is only applicable to the $50,000 first-party benefits a compensation insurer becomes obligated to pay under Section 5102(b)(2) of New York’s Insurance Law. Recovery of “APIP” 3 —or, additional benefits paid over and above the $50,000 no-fault threshold—can be had through conventional workers’ compensation subrogation provided under N.Y. WORKERS’ COMP LAW § 29.

New York’s loss transfer scheme is fraught with nuance and hidden exceptions, found not only in Article 51 itself, but also in the Insurance Department’s extensive regulations and in the rules promulgated by Arbitration Forums pursuant to its authority given by the Insurance Department. It is critical that counsel be sought as soon as practicable in a potential loss transfer case to not only preserve a loss transfer opportunity but to develop a comprehensive strategy for a successful recovery.

This entry was posted in New York, Subrogation, Workers' Compensation and tagged No-Fault Subrogation.

Arkansas: Avoiding the “Made Whole” Doctrine Through Dépeçage

This entry was posted by Robert M. Caplan on April 10, 2014.

In Arkansas, a workers’ compensation carrier’s subrogated recovery is subject to a determination of whether the injured worker—or, as the case may be, the worker’s surviving beneficiaries—has been “made whole” by the worker’s recovery against the third party tortfeasor. See, e.g., Yancey v. B & B Supply, 213 S.W.3d 657, 659 (Ark. App. 2005) (“An insured’s right to be made whole takes precedence over an insurer’s right to subrogation, and an insured must be fully compensated before the insurer’s right to subrogation arises.”) 1 More often than not, a “made whole” determination will completely eradicate the carrier’s lien.

But under the right circumstances, a workers’ compensation carrier may be able to avoid the harsh outcome of “made whole” by intervening in a pending third party action and subsequently filing a motion for dépeçage—i.e., the conflict of laws principle requiring the court to conduct a separate choice of law analysis for discrete issues in a given case. A motion for dépeçage, in this sense, would demand that the court conduct a choice of law analysis to determine what state’s workers’ compensation subrogation law will apply on reimbursing a carrier’s lien.

We recently exploited this often underutilized tactic—to avoid Arkansas’ made whole doctrine—in a case involving a fatal plane crash in Louisiana. In that case, the deceased worker and his beneficiaries were residents of Louisiana; the accident took place in Louisiana; the worker was officially employed in Louisiana; and the workers’ compensation insurance policy was governed by, and benefits were paid under, Louisiana law. The only “contact” with Arkansas 2, meanwhile, was that Arkansas was the defendant’s domicile.

Seizing upon these favorable circumstances, we intervened in the Arkansas state court action and immediately filed a motion for dépeçage, arguing that Louisiana law should apply on “workers’ compensation subrogation lien issues only.” The beauty of dépeçage is that it involves a choice of law analysis on a narrow, discrete issue. As a general rule of litigation, courts are generally more amenable to granting relief when the request is narrowly tailored for a specific purpose. Requesting that the court apply Louisiana law on all issues would have likely met with great disappointment and an adverse finding.

A motion for dépeçage is a highly technical litigation tool, but—as in the case of avoiding the “made whole” doctrine—brandishing such a motion at the right time, under the right circumstances, can mean the difference between some type of recovery and no recovery.

[1] Other “made whole” jurisdictions include: Georgia, Montana, Nebraska (“fair and equitable”), New Mexico (“modified”), Oklahoma (“equitable apportion”), South Carolina (“equitable reduction”), and Washington.

[2] A “contact” with a state can mean many things—e.g., a party’s domicile, an employment relationship, the place where a tort or breach occurred, etc. Some states use the term “interest” instead of “contact,” but both generally mean the same thing—a qualitative measure of the degree to which a particular state is said to have a stake in the outcome of the case. See, e.g.,Specialty Surfaces Int’l, Inc. v. Cont’l Cas. Co., 609 F.3d 223, 229 (3d Cir. 2010) (“Pennsylvania applies a flexible rule which permits analysis of the policies and interests underlying the particular issue before the court and directs courts to apply the law of the state with the ‘most interest in the problem.’”).

This entry was posted in Arkansas, Made Whole, Workers' Compensation.