Author Archives: Gus Sara

Large Property Loss

Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant


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In Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018), the Court of Appeals of Indiana considered whether a landlord’s carrier could bring a subrogation claim against a commercial tenant for fire-related damages when the lease, which did not reference subrogation, explicitly required the landlord to maintain fire insurance coverage for the leased premises. The court held that subrogation was barred because the provision requiring the landlord to maintain fire insurance established an agreement to provide both parties with the benefits of insurance. The Youell case establishes that, in Indiana, if the lease explicitly states that the landlord will maintain fire casualty insurance for the building, the lease evidences an agreement by the parties to shift the risk of loss to the insurer. This agreement bars a landlord’s insurance carrier from subrogating against a commercial tenant in the event of a casualty. Continue reading →

This entry was posted in Contracts, Indiana, Landlord-Tenant, Subrogation and tagged , .
Construction Defect

California Court of Appeal Holds That the Right to Repair Act Prohibits Class Actions Against Manufacturers of Products Completely Manufactured Offsite


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In Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite. Continue reading →

This entry was posted in California, Class Actions, Products Liability, Right to Repair Act and tagged , , .
Gavel

Wisconsin Court of Appeals Holds Economic Loss Doctrine Applies to Damage to Other Property If It Was a Foreseeable Result of Disappointed Contractual Expectations


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In Kmart Corp. v. Herzog Roofing, Inc., 2018 Wisc. App. Lexis 842, the Court of Appeals of Wisconsin considered whether the economic loss doctrine barred the plaintiff’s negligence claims against the defendant roofer for damages resulting from the collapse of a roof. The Court of Appeals held that, while some of the plaintiff’s property damages were unrelated to the scope of the contract, the economic loss doctrine still applied to those damages because they were a foreseeable result of the defendant’s breach of the contract. This case establishes that in Wisconsin, the economic loss doctrine bars tort claims for damage to property unrelated to the contract if those damages were a reasonably foreseeable risk of disappointed expectations of the contract. Continue reading →

This entry was posted in Damages, Economic Loss Rule, Wisconsin and tagged , , .
Pointing out a Problem

California Supreme Court Holds That Evidence of Industry Custom and Practice May Be Admissible in a Design Defect, Strict Product Liability Case


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In Kim v. Toyota Motor Corp., 6 Cal.5th 21 (Cal. 2018), the Supreme Court of California considered whether the trial court properly allowed the defendant to introduce evidence of industry custom and practice in defense of a strict product liability design defect case. The Supreme Court held that the evidence was relevant and admissible because it was introduced to address the feasibility and cost of alternative product designs, and not to show that the defendant acted reasonably. The court’s holding establishes that, while evidence of industry custom and practice is not admissible to prove or disprove fault in strict liability cases, it is admissible for other purposes, such as analyzing whether a product was defectively designed under the risk-benefit test. Continue reading →

This entry was posted in California, Evidence, Products Liability and tagged , , .
Fallen Tree

Georgia Court of Appeals Holds Lay Witness Can Provide Opinion Testimony on the Value of a Property If the Witness Had an Opportunity to Form a Reasoned Opinion


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In Woodrum v. Ga. Farm Bureau Mut. Ins. Co., 815 S.E.2d 650 (Ga. Ct. App. 2018), the Court of Appeals of Georgia considered whether the lower court properly disqualified a contractor as an expert witness and excluded the contractor from offering lay opinion testimony regarding the value of a property. The Court of Appeals held that, while the lower court properly disqualified the contractor as an expert witness, it improperly excluded the general contractor’s lay opinion testimony regarding the value of the property. This case establishes that, in Georgia, a lay witness can provide opinion testimony on the value of a property if the proponent of the testimony demonstrates that the witness had an opportunity to form a reasoned opinion. Continue reading →

This entry was posted in Experts – Daubert, Georgia and tagged , .
Construction Defect

Supreme Court of Kentucky Holds Plaintiff Can Recover for Stigma Damages in Addition to Repair Costs Resulting From Property Damage


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In Muncie v. Wiesemann, 2018 K.Y. LEXIS 257, the Supreme Court of Kentucky considered whether stigma damages[1] in a property casualty case are recoverable in addition to the costs incurred to remediate the actual damage. The court held that stigma damages are recoverable in addition to repair costs, but the total of the stigma damages and repair costs cannot exceed the diminution in the fair market value of the property. The court’s decision establishes that if the repair costs are insufficient to make the plaintiff whole, a recovery for stigma damages up to the amount of the diminution in the market value of the home is appropriate. Continue reading →

This entry was posted in Damages, Damages - Real Property, Kentucky, Made Whole and tagged , , .
House Flood

Tennessee Court of Appeals Holds Defendant Has the Burden of Offering Alternative Measure of Damages to Prove that Plaintiff’s Measure of Damages is Unreasonable


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In Durkin v. MTown Construction, LLC, 2018 Tenn. App. LEXIS 128, the Court of Appeals of Tennessee considered whether the lower court properly took judicial notice of an alternative measure of damages to the measure of damages advanced by the plaintiff. The Court of Appeals held that the defendant has the burden of offering evidence of alternative measures of damages if it seeks to argue that the plaintiff’s measure of the damages is unreasonable. The Court of Appeals found that the lower court erred in taking judicial notice of alternative measures of damage when the defendant failed to meet its burden of proof. The court’s holding establishes that, if the defendant does not offer evidence of alternative measures of damage, then the measure of damages introduced by the plaintiff will apply.   Continue reading →

This entry was posted in Damages, Damages - Real Property, Tennessee and tagged , .
Water Loss

Connecticut Supreme Court Holds That Landlord’s Insurer Can Pursue Equitable Subrogation If Lease Requires Tenant Have Insurance and Holds Tenant Responsible for Damage


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In Amica Mutual Insurance Company v. Muldowney, 328 Conn. 428 (2018), the Connecticut Supreme Court considered whether a landlord’s insurance carrier could subrogate against the landlord’s tenants for property damage when the lease did not specifically authorize subrogation. The court held that, while subrogation was not expressly allowed, the language in the lease requiring the tenants to have liability insurance and holding them liable for damage was sufficient to overcome Connecticut’s common law presumption that a landlord’s carrier cannot subrogate against a tenant. This case emphasizes the importance of analyzing every aspect of a lease when determining the true intent of the parties with respect to subrogation. Continue reading →

This entry was posted in Connecticut, Landlord-Tenant, Subrogation, Subrogation – Equitable and tagged , .
Community

Florida Court of Appeals Clarifies How the Statute Governing Indemnification Provisions in Construction Contracts Applies


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In Blok Builders, LLC v. Katryniok, 2018 Fla. App. LEXIS 1312, the Court of Appeals of Florida for the Fourth District considered whether Florida Statute § 725.06 applied to a contract for the excavation of various neighborhood easements containing telecommunication lines. The court held that the statute did not apply because the contract for the excavation work was unrelated to a “building, structure, appurtenance, or appliance,” as explicitly required by the statute. The court’s analysis highlights the importance of thoroughly analyzing statutes and considering (and anticipating) their most narrow interpretations. Continue reading →

This entry was posted in Construction Defects, Contracts, Florida, Indemnification and tagged , .
Figures

Utah’s Supreme Court Addresses When an Insurer Can, Despite the Made Whole Doctrine, Proceed in Its Own Name


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In Wilson v. Educators Mut. Ins. Ass’n, 2017 UT 69, the Supreme Court of Utah considered whether an insurer had the right to bring a subrogation action in its own name despite the fact that its insured had not yet been made whole. The court held that, although the common law made whole doctrine generally bars an insurer from proceeding in its own name until after the insured has been made whole, the terms of an insured’s insurance policy can change the made whole doctrine. The Wilson case highlights the importance of reviewing the applicable insurance policy, in conjunction with the law of the applicable jurisdiction, to determine an insurer’s subrogation rights. Continue reading →

This entry was posted in Made Whole, Subrogation, Utah and tagged , , , .