Author Archives: Kyle Rice

Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

This entry was posted by Kyle Rice on January 2, 2024.

In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability.

In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.””

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This entry was posted in Evidence, Pennsylvania, Products Liability and tagged Evidence, Pennsylvania, Product Liability, Products Liability – Risk-Utility.

Don’t Spoil Me: Oklahoma District Court Rules Against Spoliation Sanctions

This entry was posted by Kyle Rice on November 20, 2023.

In Okla. Farm Bureau Mut. Ins. Co. v. Omega Flex, Inc., No. CIV-22-18-D, 2023 U.S. Dist. LEXIS 197755, the United States District Court for the Western District of Oklahoma (the District Court) determined spoliation sanctions were not warranted after a home was demolished for repair following a joint scene examination.

The insurer, Oklahoma Farm Bureau Mutual Insurance Company (Insurer) provided a policy of insurance to Michael and Sondra Diel (the Diels). On July 11, 2020, the Diels’ home was struck by lightning and their attic caught fire. Following the loss, Insurer retained both counsel and fire origin and cause experts to inspect the Diels’ property. Insurer’s counsel informed in-house counsel for Omega Flex, Inc. (Omega Flex) via a letter dated July 14, 2020, that a preliminary investigation indicated the fire may have been caused by an Omega Flex product—specifically, TracPipe Corrugated Stainless Steel Tubing (CSST). Insurer’s counsel invited Omega Flex to inspect the property, noting: “It is anticipated that the loss will exceed $300,000” and stating that any inspection “must be completed during the next two weeks. At that time, the homeowner will proceed with demolition to rebuild.” (Emphasis added).

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This entry was posted in Evidence, Oklahoma, Spoliation and tagged Oklahoma, Sanctions, Spoliation, Spoliation – Fire Scene.

Risky Business: Contractual Versus Equitable Rights of Subrogation

This entry was posted by Kyle Rice on November 8, 2023.

In Zurich Am. Ins. Co. v. Infrastructure Eng’g. Inc., 2023 Ill. App. LEXIS 383, the insurer, Zurich American Insurance Company (Insurer) proceeded as subrogee of Community College District No. 508 d/b/a City Colleges of Chicago and CMO, a Joint Venture. The Appellate Court of Illinois, First District (Appellate Court) addressed whether Insurer – who issued a builder’s risk policy to insure a building during construction – could subrogate on behalf of the building owner, City Colleges of Chicago (City Colleges), who was part of the joint venture and an additional named insured, but who had not been directly paid for the underlying loss. The Appellate Court determined that the policy language established that the carrier was contractually permitted to subrogate on behalf of all additional named insureds on the policy, including the building owner.

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This entry was posted in Builder's Risk, Contractual Subrogation, Equitable Subrogation, Illinois, Insurable Interest and tagged Builder’s Risk, Contractual Subrogation, Equitable Subrogation, Illinois, Insurable Interest.

Know Your Limits: An Intro to Statutes of Limitations

This entry was posted by Kyle Rice on July 18, 2023.

The newest episode of the Subro Sessions #podcast is out now. This episode tackles a central part of the #subrogation process: the statute of limitations and is hosted by David Huberman, Partner and Kyle Rice, Associate

In the latest episode of Subro Sessions, these White and Williams professionals tackle the core principles and issues brought up by the statute of limitations. They briefly explain what statutes of limitations are and explain the best ways to view and handle statutes in the subrogation process.

If you want to hear more about relevant subrogation topics, tune in on the third Tuesday of every month for the newest episode of Subro Sessions!

Check the all of our Subro Sessions podcast episodes.

This entry was posted in Podcast, Subrogation and tagged Podcast, Subrogation.

Improvement or Malpractice? Florida Court of Appeals Addresses Applicable Statute of Limitations

This entry was posted by Kyle Rice on June 30, 2023.

In Am. Auto. Ins. Co. v. FDH Infrastructure Servs. LLC., No. 3D22-1143, 2023 Fla. App. LEXIS 3662, the Court of Appeals of Florida, Third District (Court of Appeals) addressed whether Florida’s two-year statute of limitations governing professional malpractice actions or four-year statute of limitations governing improvements to real property was applicable to a claim involving a construction accident due to erroneous structural engineering calculations. The Court of Appeals determined that the four-year statute governing improvements to real property was more specific and governed only construction-based claims and, thus, was the appropriate governing statute. Continue reading →

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

Up in Smoke: Insurer’s Circumstantial Evidence Did Not Establish Negligence

This entry was posted by Kyle Rice on April 21, 2023.

In Union Mut. Fire Ins. Co. v. Ace Caribbean Mkt., No. 21-2653,2023 U.S. App. LEXIS 8203 (2d Cir. Apr. 6, 2023), the United States Court of Appeals for the Second Circuit (Second Circuit) considered whether evidence that a fire may have originated in extension cords was sufficient to establish that: a) the owners/proprietors were negligent in their use of the extension cords; and b) their negligence was the cause of the fire. The Second Circuit held that the circumstantial evidence was not sufficient and affirmed summary judgment in favor of the defendant.

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This entry was posted in Negligence, New York and tagged Circumstantial Evidence, Negligence, New York, Res Ipsa.

Family Matters: United States District Court Extends Sutton Rule to Undefined “Family”

This entry was posted by Kyle Rice on December 22, 2022.

In Am. Reliable Ins. Co. v. Addington., No. 3:21-CV-00848, __ F.Supp.3d __, 2022 U.S. Dist. LEXIS 218436, the United States District Court for the Middle District of Tennessee (the District Court) considered whether a tenant’s live-in partner and the partner’s adult son constituted a “family” in the underlying lease and, thus, were implied co-insureds under the Sutton Rule. The District Court determined that the arrangement did constitute a “family” and that the Sutton Rule barred subrogation.

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This entry was posted in Landlord-Tenant, Sutton Doctrine, Tennessee, Uncategorized and tagged Landlord-Tenant, Tennessee.

The Final Nail: Ongoing Repairs Do Not Toll the Statute of Repose

This entry was posted by Kyle Rice on October 28, 2022.

In Venema v. Moser Builders, Inc., 2022 PA Super. 171, 2022 Pa. Super. LEXIS 414, the Superior Court of Pennsylvania (Superior Court) upheld an award of judgment on the pleadings from the Court of Common Pleas of Chester County (Trial Court). The Superior Court found that Pennsylvania’s 12-year Statute of Repose for improvements to real property (Statute of Repose) began to run upon the issuance of the certificate of occupancy following original construction of the home in 2003—not from the completion of repairs to the home that continued through 2008. Continue reading →

This entry was posted in Construction Defects, Pennsylvania, Statute of Limitations-Repose and tagged Construction Defects, Improvement, Pennsylvania, Statute of Repose.

Pump the Brakes: Indiana Rules MCS-90 Endorsement Does Not Apply to Intrastate Trips

This entry was posted by Kyle Rice on March 11, 2022.

In Progressive Southeastern Ins. Co. v. B&T Bulk, LLC, No. 21S-CT-496, 2022 Ind. LEXIS 131, the Supreme Court of Indiana (Supreme Court) reversed a decision of the Court of Appeals of Indiana (Court of Appeals), ruling that Form MCS-90 (MSC-90) endorsements on insurance policies do not apply to purely intrastate trips. In reversing the decision of the Court of Appeals, the court found that the Indiana Legislature’s incorporation of the federal Motor Carrier Act of 1980 (MCA) into the state code did not expand the MCA’s scope to include intrastate trips. Continue reading →

This entry was posted in Cargo - Transportation, Indiana and tagged Cargo-Transportation, Indiana, MCS-90.

Utah Digs Deep and Finds “Design Defect” Includes Pre-Construction Geotechnical Reports

This entry was posted by Kyle Rice on November 16, 2021.

The Supreme Court of Utah recently found that an incorrect pre-construction geotechnical engineering report is a “defective design.” Thus, actions arising from an incorrect geotechnical report are appropriately governed by Utah’s Economic Loss Statute (Statute), Utah Code Ann. § 78B-4-513(1). Continue reading →

This entry was posted in Construction Defects, Economic Loss Rule, Utah and tagged Construction Defects, Design Defect, Economic Loss Doctrine, Privity, Utah.