Author Archives: William L. Doerler

Recall Alert

Hawthorne Hydroponics Recalls Humidifiers


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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 September 5, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Hawthorne Hydroponics Recalls Humidifiers Due to Fire and Shock Hazards.

According to the CPSC, the humidifiers can overheat while in use.

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

Carmack Amendment Loss Claims Should Indicate a Specified or Determinable Amount of Money


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In N.Y. Marine & Gen. Ins. Co. v. Estes Express Lines, Inc., 719 Fed. Appx. 691 (9th Cir. 2018), the United States Court of Appeals for the Ninth Circuit (Appeals Court) addressed the question of whether an insurer, N.Y. Marine & General Insurance Company (N.Y. Marine), could recover from a cargo carrier under the Carmack Amendment, 49 U.S.C. § 14706, if the insured’s loss claim did not state a specified amount of money. Finding that § 14706 requires that a party filing a cargo loss claim state a specified or determinable amount of money, the Appeals Court affirmed the district court’s holding that neither the carrier, Estes Express Lines, Inc. (Estes) nor the broker, Exfreight Zeta, Inc. (Zeta), was liable to N.Y. Marine. Continue reading

This entry was posted in Cargo - Transportation, Subrogation and tagged , .
Product Recall

Xtava Recalls Allure Hair Dryers


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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 August 15, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Xtava Recalls Allure Hair Dryers Due to Fire, Burn and Electrical Shock Hazards.

According to the CPSC, “[t]he hair dryer and power cord can overheat and catch on fire, posing fire, burn and electrical shock hazards.”

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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 August 2, 2018, the CPSC announced the following recalls related to products that present fire and/or explosion hazards:

Zebra Technologies Expands Recall of Power Supply Units for Thermal Printers Due to Fire Hazard

Miller Fireworks Recalls Fireworks Due to Violation of Federal Standard; Explosion and Burn Hazards.

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Transportation

New York Federal Court Holds That the Montreal Convention Does Not Allow a Party to Recover Inspection Costs Where Cargo Suffers No Physical Damage


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In Indemnity Ins. Co. of N. Am. v. Agility Logistics Corp., 2018 U.S. Dist. LEXIS 104179 (S.D.N.Y.), the United States District Court for the Southern District of New York considered the “novel question” of whether the Montreal Convention allows recovery of inspection costs when there is no physical damage to the cargo at issue. Although acknowledging that its holding was, arguably, absurd, the court held that, based on the plain language of Article 18 of the Montreal Convention, the subrogating insurer could not recover the inspection costs its insured incurred. Continue reading

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Florida Extends Filing Time for Claims Subject to the Statute of Repose


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Under Florida’s construction-related statute of repose, Fla. Stat. § 95.11, actions based on the design, planning or construction of an improvement to real property are barred if not commenced within 10 years after the later of several possible dates, including the date of actual possession by the owner and the date of the issuance of a certificate of occupancy. The Florida Legislature recently amended the statute to extend the time within which defendants subject to a suit filed close to the end of the 10-year period can file claims. Under the revised law, a defendant can file “counterclaims, cross-claims and third-party claims up to 1 year after the pleading to which such claims relate is served.” Regardless of when the cause of action at issue accrued, the law applies to actions commenced on or after July 1, 2018, except that any action that would not have been barred under Fla. Stat. § 95.11(3)(c) prior to the amendment may be commenced before July 1, 2019. Continue reading

This entry was posted in Construction Defects, Florida, Statute of Limitations-Repose and tagged , , .
Product Recall

Consumer Product Safety Commission Recall


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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 5, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Keyera Energy Recalls to Inspect Propane Gas Due to Fire and Explosion Hazards.

According to the CPSC, the recalled propane gas does not contain sufficient levels of odorant to help alert consumers to a gas leak.

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Product Recall

Kohler Recalls Automatic Transfer Switches for Kohler Generators


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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 May 23, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Kohler Recalls Automatic Transfer Switches for Kohler Generators Due to Fire Hazard.

According to the CPSC, this recall involves Kohler 100-amp service entrance rated automatic transfer switches used with Kohler brand residential and commercial generators.

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Product Recall

Regency Fireplace Products Recalls Gas Stove Fireplaces


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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 May 15, the CPSC announced the following recall related to a product that presents an explosion hazard:

Regency Fireplace Products Recalls Gas Stove Fireplaces Due to Explosion and Injury Hazards.

According to the CPSC, the pressure release system can fail and cause the gas stove to explode.

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New York’s Court of Appeals Clarifies the Burden of Proof in Summary Judgment Cases


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In Rodriguez v. City of New York, 2018 N.Y. LEXIS 793, 2018 NY Slip Op. 02287 (Apr. 3, 2018), New York’s Court of Appeals, New York’s highest court, addressed the question of whether a plaintiff, in moving for summary judgment on the issue of the defendant’s liability, also needs to establish the absence of his or her own comparative negligence. In a 4-3 decision, a majority of the court held that, because the plaintiff’s comparative negligence is a matter of damages, not liability, the plaintiff does not bear that burden. Continue reading

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