Author Archives: Melissa Kenney

Signing Agreement

Eggshell Plaintiffs Can Help Maximize Your Subrogation Recovery to Include Building Code Upgrades

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In a recent unpublished opinion, Hale v. Bassette, No. HHD-CV-20-6124046-S, 2022 Conn. Super. LEXIS 2292, the Superior Court of Connecticut held that the plaintiff was entitled to recover building code upgrade costs associated with repairing a 150-year-old home damaged by the defendant’s negligence. In reaching its decision, the court applied the eggshell plaintiff doctrine, a legal principle that is more commonly applied in personal injury actions.  The doctrine says that a negligent defendant takes the injured plaintiff as he or she is found, making the defendant responsible for any injury that is magnified by the plaintiff’s pre-existing condition or injury.  The court found the fact that the home was 150 years old and susceptible to greater damage did not relieve the defendant of its obligation to make the plaintiff whole.

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House Flood

Tenants Underwater: Indiana Court of Appeals Upholds Privity Requirement for Property Damage Claims Against Contractors

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In United States Automatic Sprinkler Corp. v. Erie Ins. Exch., et al., No. 21A-CT-580, 2022 Ind. App. LEXIS 87 (Automatic Sprinkler), the Court of Appeals of Indiana (Court of Appeals) considered whether there is a privity requirement for property damage claims against contractors. The court imposed a privity requirement. The court also addressed whether a subrogation waiver in a contract with a tenant applied to damage caused by work done outside the contract, at the landlord’s request. The court held that the waiver did not apply. Continue reading

This entry was posted in Construction Defects, Indiana, Landlord-Tenant, Privity, Subrogation, Waiver of Subrogation and tagged , , , , , .

Jurisdiction by Consent: Georgia Holds that Corporations Registered to do Business in the State Consent to Being Sued There

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In Cooper Tire & Rubber Co, v, McCall, No. S20G1368, 2021 Ga. LEXIS 626 (Cooper Tire), the Supreme Court of Georgia (Supreme Court) held that Georgia courts can exercise general personal jurisdiction over foreign corporations that are registered to do business in the state. In Cooper Tire, the plaintiff, Tyrance McCall, filed a lawsuit against Cooper Tire & Rubber Company (Cooper Tire) in Georgia state court for personal injuries he sustained in a car accident. Cooper Tire filed a motion to dismiss for lack of personal jurisdiction. Continue reading

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New York Federal Court Determines a Claim Adjuster’s Testimony Is Sufficient To Prove Damages

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In Phila. Indem. Ins. Co., a/s/o Baldwin Real Estate Corp. v. Barker, 2021 U.S. Dist. LEXIS 87642 (N.D.N.Y. May 7, 2021), the United States District Court for the Northern District of New York considered whether the plaintiff, Philadelphia Indemnity Insurance Company (PIIC), a subrogating insurer, could prove its damages claim through the testimony of its adjuster, without an damages expert. The court held that, where the plaintiff’s damages proof was based on repair costs and the defendant offered no expert of its own related to the diminution in fair market value, the plaintiff could prove its damages using the adjuster’s testimony. Continue reading

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Idaho District Court Affirms Its Role as the Gatekeeper of Expert Testimony

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Many subrogation claims involving fire losses rely heavily on expert testimony. Expert testimony is admissible under Federal Rule of Evidence 702 if it is both relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whose standard has been incorporated into Federal Rule of Evidence 702, the Supreme Court instructed federal trial courts to act as a “gatekeeper” of expert testimony, giving them the power to exclude expert testimony that is not supported by sufficient evidence. In Maria Fernanda Elosu and Robert Luis Brace v. Middlefork Ranch Incorporated, Civil Case No. 1:19-cv-00267-DCN, 2021 U.S. Dist. LEXIS 14449 (D. Idaho Jan. 22, 2021) (Brace), the United States District Court for the District of Idaho exercised its gatekeeper role when it granted in part and denied in part the defendant’s motion to exclude expert testimony pursuant to Daubert and Federal Rule of Evidence 702. Continue reading

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