Seven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible. Continue reading
In New York Cent. Mut. Ins. Co. v. TopBuild Home Servs., Inc., 2019 U.S. Dist. LEXIS 69634 (April 24, 2019), the United States District Court for the Eastern District of New York recently held that the “lesser of two” doctrine applies to subrogation actions, thereby limiting property damages to the lesser of repair costs or the property’s diminution in value. Continue reading
In Palisades at Fort Lee Condominium Association v. 100 Old Palisade, LLC, et al., 2017 N.J. LEXIS 845 (Palisades), the Supreme Court of New Jersey addressed how the discovery rule – which tolls the statute of limitations – applies in construction defect cases. The court clarified that, when a building has multiple owners, the statute of limitations begins to run when the first owner – be it an original or subsequent owner – in the line of building owners reasonably knew or should have known of the basis for a cause of action.
In Beaufort Builders, Inc. v. White Plains Church Ministries, Inc., 783 S.E.2d 35 (N.C. Ct. App. 2016), the Court of Appeals of North Carolina addressed whether the economic loss rule barred the negligence claim of White Plains Church Ministries, Inc. (White Plains) against Charles F. Cherry (Cherry), the owner of Beaufort Builders, Inc. (Beaufort Builders). The court held that, because the economic loss rule would bar White Plains’ negligence claims against Beaufort Builders, White Plains could not pursue a third-party negligence claim against Cherry, individually.
In Melrose Gates, LLC v. Chor Moua, et al., 875 N.W.2d 814 (Minn. 2016), the Supreme Court of Minnesota, applying the factors the court first articulated in RAM Mutual Insurance Company v. Rohde, 820 N.W.2d 1 (Minn. 2012), analyzed whether the parties to an apartment lease reasonably expected that the tenants would be liable in subrogation for fire damage caused by the tenants’ negligence. The Melrose Gates court held that, based on the language of the lease, the type of insurance the parties purchased, and the fact that the building was a multi-unit structure, the parties intended that the tenants would be responsible for damage to their leased unit but not for damage to other property. Thus, while the landlord’s insurer could recover the amount it paid to repair the damage to the tenants’ unit, it could not recover the amount it paid to repair other units or common areas of the building.
In Rogers v. Wright, 366 P.3d 1264 (Wyo. 2016), the Supreme Court of Wyoming held that home builders have a tort duty of reasonable care and this duty, independent of any contractual obligations, makes the economic loss rule inapplicable.
In Zbranek Custom Homes, Ltd. v. Joe Allbaugh, et al., No. 03-14-00131-CV, 2015 WL 9436630 (Tex.App.-Austin Dec. 23, 2015), the Court of Appeals of Texas, Austin, considered the circumstances under which a general contractor can be held liable for injuries to a non-contracting party’s property. The court held that, because the general contractor, Zbranek Custom Homes, Ltd. (Zbranek), exercised control over the construction of the fireplace at issue, Zbranek owed a duty of care to the first lessees of the home that Zbranek built.
In Dominguez v. Hayward Industries, Inc., Certified Gunite Company d/b/a Custom Pools, and John M. Pieklo, — So.3d —-, 2015 WL 5438782 (3d DCA Sept. 16, 2015), the District Court of Appeal of Florida, Third District, discussed whether products liability claims related to a pool filter, a component part of a pool system, were subject to Florida’s twelve-year products liability statute of repose, section 95.031, Florida Statutes. The court held that a pool filter does not constitute an improvement to real property and, thus, the plaintiffs’ claims were subject to the statute of repose.
In Nami Resources Company, LLC v. Asher Land and Mineral, Ltd., — S.W.3d –, 2015 WL 4776376 (Ky. App. Aug. 14, 2015), the Court of Appeals of Kentucky recently declined to expand the scope of the economic loss doctrine, holding that the doctrine precludes misrepresentation claims only in commercial product liability cases.
In Nami Resources, Nami Resources Company, LLC (“NRC”) extracted gas from property owned by Asher Land and Mineral, Ltd. (“ALM”) pursuant to a contract. Under the contract, NRC agreed to pay ALM 1/8th of the gas’ market price. A dispute developed over the amount of royalties that NRC paid to ALM under the contract. ALM sued NRC, asserting, among other things, a claim for breach of contract and a tort claim for fraudulent misrepresentation. NRC argued that ALM’s misrepresentation claim was barred by the economic loss doctrine, contending that ALM’s claims were founded on contractual duties and that, absent a basis independent of the alleged breach of contract, ALM could not maintain its tort claims.