Author Archives: Gus Sara

Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 1


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The newest episode of the Subro Sessions podcast, is hosted by Gus Sara, Partner, and Michael DeBona, Counsel, who are joined by guest J. Pablo Ross, PE, of Ross Engineering. The episode, entitled “Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 1,” explores the most common property damage claim our subrogation team encounters. Gus, Michael and Pablo define the causes, types of losses including product failures, HVAC failures, pipe freezes, overflows and give an overview of what a typical investigation looks like when developing a subrogation claim.

Be sure to mark your calendar for Part 2, being released on July 16.

Listen to all of our episodes here.

You can also listen to Subro Sessions on Apple Podcasts and Spotify.

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

A Matter Judged: Subrogating Insurers Should Beware of Prior Suits Involving the Insured


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In New Jersey Mfrs. Ins. Co. v. Lallygone LLC, No. A-2607-22, 2024 N.J. Super. Unpub. LEXIS 120, the Appellate Division of the Superior Court of New Jersey (Appellate Division) considered whether New Jersey Manufacturers Insurance Company (the carrier) could bring a subrogation action after its insured, Efmorfopo Panagiotou (the insured), litigated and tried claims related to the same underlying incident with the same defendant, Lallygone LLC (the defendant). The Appellate Division affirmed the trial court’s finding that the prior lawsuit extinguished the carrier’s claims. Continue reading

This entry was posted in New Jersey, Res Judicata, Subrogation and tagged , , , , .

Stop Suing Yourself: A Brief Discussion on the Anti-Subrogation Rule


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The newest episode of the Subro Sessions podcast is out now. This episode is entitled, “Stop Suing Yourself: A Brief Discussion on the Anti-Subrogation Rule” and is hosted by Gus Sara, Partner, and Katherine Dempsey, Associate. Gus and Katherine share their expertise on the Anti-Subrogation Rule by discussing its history, purpose and how it applies in various states across the country.

Listen to all of our episodes here. 

This entry was posted in Subrogation.
Community

Certificates of Merit: Is Your Texas Certificate Sufficient?


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In Eric L. Davis Eng’g, Inc. v. Hegemeyer, No. 14-22-00657-CV, 2023 Tex. App. LEXIS 8899, the Court of Appeals of Texas (Court of Appeals) considered whether the plaintiffs’ certificate of merit, in support of their professional malpractice claim against the defendant engineers, adequately set forth the experience and qualifications of the expert who submitted the certificate. The defendants filed a motion to dismiss, alleging that the certificate of merit was inadequate because it failed to establish that the expert practiced in the same specific areas as the defendants in relation to the work at issue. The lower court denied the defendants’ motion. The Court of Appeals affirmed the lower court’s decision, finding that there was sufficient information for the lower court to have reasonably found that the plaintiffs’ expert practiced in the same area as the defendants.

In Hegemeyer, the plaintiffs sued Eric L. Davis Engineering, Inc. (Davis) and Kenneth L. Douglass (Douglass), alleging improper design of their home’s foundation. The plaintiffs retained Davis to design and engineer the home and Douglass prepared the plans for the home. The plans called for the installation of post-tension cables in the home’s foundation. The plaintiffs alleged that the foundation design was improper and brought professional malpractice claims against Davis and Douglass.

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This entry was posted in Certificate of Merit, Litigation, Malpractice, Texas and tagged , , , .

Drawing the Line: In Tennessee, the Economic Loss Doctrine Does Not Apply to Contracts for Services


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In Commercial Painting Co. v. Weitz Co. LLC, No. W2019-02089-SC-R11-CV, 2023 Tenn. LEXIS 39 (Weitz), the Supreme Court of Tennessee (Supreme Court) considered whether the economic loss doctrine barred the plaintiff’s claims for fraud, negligent misrepresentation and punitive damages arising out of a contract with the defendant for construction services. The court held that the economic loss doctrine only applies to product liability cases and does not apply to claims arising from contracts for services. This case establishes that, in Tennessee, the economic loss doctrine does not bar tort claims in disputes arising from service contracts.

In Weitz, defendant, Weitz Co. LLC (Weitz), was the general contractor for a construction project and hired plaintiff Commercial Painting Co. (Commercial) as a drywall subcontractor.  Weitz refused to pay Commercial for several of its payment applications, claiming that the applications were submitted untimely and contained improper change order requests.  Commercial filed a lawsuit against Weitz seeking over $1.9 million in damages, alleging breach of contract, unjust enrichment, enforcement of a mechanic’s lien, and interest and attorney’s fees under the Prompt Pay Act of 1991. Weitz filed a counterclaim for $500,000 for costs allegedly incurred due to Commercial’s delay and defective workmanship. In response, Commercial amended its complaint to add claims for fraud, intentional and negligent misrepresentation, rescission of the contract and $10 million in punitive damages. Commercial alleged that Weitz received an extension of the construction schedule but fraudulently withheld this information from Commercial and continued to impose unrealistic deadlines.

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This entry was posted in Contracts, Economic Loss Rule, Tennessee and tagged , , .

Reading the Small Print: A Discussion of Contractual Impediments to Subrogation


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Gus Sara, Partner, and Joe Kuffler, Counsel, reunite to host another episode of Subro Sessions, entitled, “Reading the Small Print: A Discussion of Contractual Impediments to Subrogation” to discuss common issues with contractual provisions.

Subrogation professionals run into various contractual provisions, including subrogation waivers, limitation to liability and damages caps, accelerated statute of limitations, indemnification/hold harmless clauses, notices and pre-suit requirements and venue/forum clauses. Gus and Joe present relevant case scenarios and stress the importance of reading the small print and knowing what terms are enforceable. 

Check the all of our Subro Sessions podcast episodes.

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

New York Court Holds Insurer Can Recover Before Insured Is Made Whole


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In State Farm Fire & Cas. Co. v. Tamagawa, Index No. 510977/2021, 2023 N.Y. Misc. Lexis 5434, the Supreme Court of New York considered whether an insurance carrier can settle its property subrogation lawsuit with the defendant, and discontinue the lawsuit, while the carrier’s insured still had pending claims with the carrier and claims for uninsured losses against the defendant. The court held that the carrier’s claims for the amount paid are divisible and independent of the insured’s claims and that the carrier’s settlement did not affect the insured’s right to sue for any unreimbursed losses. The court’s decision reminds us that, in New York, a carrier can resolve its subrogation claim before the insured is made whole.

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

Clock’s Ticking: Discussion of the Statute of Repose and its Impact on Subrogation


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The newest episode of the Subro Sessions podcast is out now. Hosted by Gus Sara, Partner, and Joseph Kuffler, Counsel, this episode tackles a part of the subrogation process that’s all about timing: the statute of repose.

In the latest episode of Subro Sessions, these White and Williams professionals tackle the core principles and issues brought up by the statute of repose. Gus and Joe will define the statute of repose, explain it’s intended purpose and how it is applied, and use real-life examples from their experiences dealing with this topic.

Check the all of our Subro Sessions podcast episodes.

 

This entry was posted in Subrogation, Uncategorized and tagged , .
Large Property Loss

Let’s Give ‘Em Sutton to Talk About: Tennessee Court Enforces Sutton Doctrine


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In Patton v Pearson, No. M2022-00708-COA-RC-CV, 2023 Tenn. App. LEXIS 231, the Court of Appeals of Tennessee (Court of Appeals) considered whether the lower court erred in dismissing an insurance carrier’s lawsuit against its insured’s tenant for damages sustained in a fire. While the lawsuit was filed in the name of the landlord (i.e., the insured), discovery revealed that the lawsuit was actually a subrogation lawsuit, brought by the landlord’s insurance carrier. The lower court granted the tenant’s motion for summary judgment based on the Sutton Doctrine, holding that the tenant was an implied co-insured under the landlord’s policy. The Court of Appeals affirmed, finding that although the lease agreement did not reference insurance, the Sutton Doctrine applied, which barred the landlord’s carrier from subrogating against the tenant. Continue reading

This entry was posted in Anti-Subrogation Rule, Landlord-Tenant, Sutton Doctrine, Tennessee and tagged , , , .

Subro Trauma Center – Part 2: A Long Way From Home – Pursuing Claims Against Foreign Entities


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The newest episode of the Subro Sessions podcast is out now. If you listened to the first installment of the “Subro Trauma Center – Discussions on Common Issues that Arise in Subrogation Claims and How to Address Them” series, you won’t want to miss Part 2: A Long Way From Home – Pursuing Claims Against Foreign Entities, hosted by Gus Sara, Lian Skaf and Matthew Ferrie.

Often, the presence of a foreign entity is seen as a dead end that could potentially result in a closed file. In this episode of Subro Sessions, Gus, Lian and Matt examine these types of files. They explore common factors to consider, the means of pursuit and laws that apply by using examples from their own experiences with foreign entities.

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 , .