Author Archives: Gus Sara

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New Jersey Supreme Court Requires Proof of Diminution of Market Value to Establish Damages


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In Kornbleuth v. Westover, 2020 N.J. LEXIS 298, the Supreme Court of New Jersey considered whether the trail court properly dismissed the plaintiffs’ trespass claim against their neighbors for failing to offer evidence of diminution of the market value of their property. The Supreme Court upheld the dismissal, finding that the plaintiffs’ damages could not be determined, as a matter of law, because they did not offer evidence of the diminution of market value of their property as a result of the trespass. Although the plaintiffs presented evidence of the cost to restore the property, the court held that determining the applicable measure of damages for a trespass claim is dependent on the diminution of market value and whether or not the restoration costs are proportionate to that value. Continue reading →

This entry was posted in Damages - Real Property, Litigation, New Jersey and tagged , , .
Fire

Mississippi Supreme Court Applies AIA Subrogation Waiver to Non-Work Property Damage


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In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing., L.L.C., No. 2019-FC-10285-SCT, 2020 Miss. LEXIS 44, the Supreme Court of Mississippi considered whether the subrogation waiver in the General Conditions of the Construction Contract, American Institute of Architects (AIA) form A201-2007, applied to claims for damages to property unrelated to the construction work. Siding with the majority of jurisdictions that have addressed this issue, the court interpreted the AIA subrogation waiver to apply to any property damage, whether or not related to the construction work (i.e. the Work), if the property insurance covering the non-Work property also insured the construction work. Continue reading →

This entry was posted in AIA Contracts, Construction Defects, Contracts, Mississippi, Subrogation, Waiver of Subrogation and tagged , , , , , .
Water Loss

Commercial Tenant’s Subrogating Insurer Barred by Lease Terms from Pursuing Landlord


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In Travelers Indem. Co. of Am. v. Schwarz Props., L.L.C., 2020 U.S. Dist. LEXIS 18176, the United States District Court for the Western District of North Carolina considered whether the lease between a commercial tenant and its landlord barred the tenant’s insurance carrier from subrogating against the landlord for damages to the tenant’s goods. The court found that the tenant’s carrier could not subrogate against the landlord because the lease clearly and explicitly stated that the landlord was not responsible for the tenant’s property. In addition, the lease required the tenant to insure its own property and to hold the landlord harmless for any damage to the tenant’s goods. This case establishes that, in North Carolina, negligence claims between a landlord and tenant may be barred if the lease includes clear and explicit exculpatory and indemnification provisions. Continue reading →

This entry was posted in Landlord-Tenant, North Carolina, Subrogation, Sutton Doctrine and tagged , , , , .
Gavel

Wisconsin Supreme Court Induced to Narrowly Interpret Exceptions to the Economic Loss Doctrine


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In Hinrichs v. Dow Chem. Co., 2020 WI 2, 2020 Wisc. LEXIS 2 (2020), the Supreme Court of Wisconsin considered whether two recognized exceptions to the economic loss doctrine—the “fraud in the inducement” and “other property” exceptions—applied to allow the plaintiffs’ tort claims to go forward. The court held that the fraud in the inducement exception only applies to alleged fraud that is unrelated to either the quality or characteristics of the product for which the parties contracted or performance of the contract. In addition, the court held that the fraud in the inducement exception did not apply to the plaintiffs’ tort claims because the alleged fraud was related to the quality and characteristics of the product, and thus was not extraneous to the contract. The court also held that the “other property” exception to the economic loss doctrine did not apply because the product at issue was integrated into a more complete product, and when that happened, the completed product ceased to be “other property” for purposes of the economic loss doctrine. This case narrows the application of two exceptions to the economic loss doctrine, which is a common defense in product defect cases. Continue reading →

This entry was posted in Economic Loss Rule, Fraud - Misrepresentation, Products Liability, Wisconsin and tagged , , .
Large Property Loss

Massachusetts Court Holds Statute of Repose Does Not Apply to Claims for Failure to Maintain Property


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In Penn-America Insurance Company v. Bay State Gas Company, 96 Mass. App. Ct. 757 (2019), the Appeals Court of Massachusetts considered whether the plaintiff’s claims against the defendant, arising from an alleged defect in the defendant’s natural gas line, were time-barred by the six-year statute of repose for improvements to real property. The Appeals Court held that the statute of repose did not apply to the plaintiff’s claims, which were related to the defendant’s alleged failure to maintain its property. Thus, in Massachusetts, the statute of repose does not apply if the plaintiff’s claim is rooted in the failure to maintain an improvement, rather than negligent design or construction of the improvement. Continue reading →

This entry was posted in Construction Defects, Massachusetts, Statute of Limitations-Repose, Subrogation and tagged , , , .
Fire

Establishing Proximate Cause Where Both Roads Lead to the Defendant


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In Westfield Ins. Group v. Pure Renovations, LLC, 2019-Ohio-4773, 2019 Ohio App. LEXIS 4829, the Court of Appeals of Ohio considered whether the lower court properly granted the defendant’s summary judgment motion. In its motion, the defendant argued that the plaintiff could not prove that the defendant’s conduct was the proximate cause of the fire at issue because the plaintiff’s liability expert identified two possible causes of the fire. The Court of Appeals, finding issues of fact remain as to whether the defendant was solely responsible for both possible causes, reversed the summary judgment ruling. This case establishes that, in Ohio, if all likely causes implicate solely the defendant’s alleged negligent conduct, a plaintiff’s inability to identify, definitively, one cause of a loss does not necessarily preclude the plaintiff from establishing proximate cause.

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This entry was posted in Causation, Negligence, Ohio and tagged , , .

Pennsylvania Superior Court Fires up a Case-By-Case Analysis for Landlord-Tenant, Implied Co-Insured Questions


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In Joella v. Cole, 2019 PA Super. 313, the Superior Court of Pennsylvania recently considered whether a tenant, alleged by the landlord’s property insurance carrier to have carelessly caused a fire, was an implied co-insured on the landlord’s policy. The court found that the tenant was an implied co-insured because the lease stated that the landlord would procure insurance for the building, which created a reasonable expectation that the tenant would be a co-insured under the policy. Since the tenant was an implied co-insured on the policy, the insurance carrier could not maintain a subrogation action against the tenant. This case confirms that Pennsylvania follows a case-by-case approach when determining whether a tenant was an implied co-insured on a landlord’s insurance policy. Continue reading →

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

California Clarifies Its Inverse Condemnation Standard


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In City of Oroville v. Superior Court, 446 P.3d 304 (Cal. 2019), the Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup. The court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial cause of the damage. Since the dental practice did not have a code-required backwater valve — which would have prevented or minimized this loss — the court found that the city was not liable because the sewage system was not a substantial cause of the loss. This case establishes that a claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage. It also suggests that comparative negligence can be a defense to inverse condemnation claims. Continue reading →

This entry was posted in California, Government – Claims Against, Property and tagged , .
Figures

Ohio Court Measures the Damage to a Computer Network by Its Value to the Owner, Not Its Fair Market Value


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In Westfield Insurance Group v. Silco Fire & Security, 2019 Ohio App. LEXIS 2810, the Court of Appeals of Ohio, Fifth Appellate District addressed whether the trial court properly instructed the jury that the applicable measure of damages for damage done to a computer network was the network’s replacement cost value rather than its fair market value. Based on the unique circumstances of the case, the Court of Appeals held that the trial court did not abuse its discretion when it instructed the jury on the replacement cost measure of damages rather than fair market value. Continue reading →

This entry was posted in Contracts, Damages - Real Property, Ohio, Subrogation and tagged , , .
Broken Bricks

Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in Construction Contracts


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In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s insured violated Wisconsin statute § 895.447, which prohibits limitations of tort liability in construction contracts. The Supreme Court affirmed the lower court’s decision that the waiver clause did not violate the statute because it merely shifted the responsibility for the payment of damages to the defendant’s insurance company. The waiver clause did not limit or eliminate the defendant’s tort liability. This case establishes that while
§ 895.447 prohibits construction contracts from limiting tort liability, a subrogation waiver clause that merely shifts responsibility for the payment of damages from a tortfeasor to an insurer does not violate the statute and, thus, is enforceable. Continue reading →

This entry was posted in Construction Defects, Subrogation, Waiver of Subrogation, Wisconsin and tagged , , , , .