Author Archives: Lian Skaf

Waive It Goodbye: Despite Evidence to the Contrary, Delaware Upholds an AIA Waiver of Subrogation Clause

This entry was posted by Lian Skaf on April 12, 2022.

Subrogation professionals have always been looking for ways to defeat onerous waiver of subrogation provisions in contracts signed by insureds. However, even when contracts are unsigned, if there is intent when the contract is made – usually long before a loss occurs – a waiver of subrogation can doom what otherwise may have been a strong case. The Superior Court of Delaware considered such a scenario to determine whether a waiver of subrogation provision applied to a multimillion-dollar subrogation case.

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This entry was posted in Construction Defects, Contracts, Delaware, Waiver of Subrogation and tagged Construction Defects, Contracts - Formation, Delaware, Waiver of Subrogation.

The Deal Stands: Finding of Good Faith Settlement in California Precludes Contribution and Indemnity

This entry was posted by Lian Skaf on September 27, 2021.

Courts across the country have historically taken positions encouraging settlements between civil litigants. Thus, as long as there is good faith involved in the negotiation process, settlements and their effects on other parties are generally upheld. Recently, the United States District Court for the Eastern District of California (District Court) considered whether a settlement between the plaintiff and one of several defendants met the good faith standard, thereby barring claims for contribution and indemnity from the co-defendants. Continue reading →

This entry was posted in California, Cargo - Transportation, Contribution-Apportionment, Indemnification and tagged California, Cargo-Transportation, Contribution, Indemnification, Settlement.

Florida Court Gives Parties Assigned a Subrogation Claim a Math Lesson

This entry was posted by Lian Skaf on July 12, 2021.

Although the focus of most subrogation cases is usually on proving liability, determining the appropriate measure of damages is just as important. Sometimes turning on a nuanced argument for recoverability, an adverse holding can significantly boost or reduce the total damages in a case. The Court of Appeal of Florida, Fourth District (Court) recently decided such an issue in a case involving subrogation, holding that the defendants owed much more than they originally anticipated. Continue reading →

This entry was posted in Damages - Real Property, Florida, Subrogation and tagged Assignment, Damages, Florida, Subrogation.

Industry Standard and Sole Negligence Defenses Can’t Fix a Defect

This entry was posted by Lian Skaf on May 11, 2021.

Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend. Continue reading →

This entry was posted in Comparative-Contributory Negligence, Evidence, Negligence, Pennsylvania, Products Liability and tagged Negligence, Pennsylvania, Products Liability.

What the Jury Doesn’t Know about Insurance Won’t Hurt Them

This entry was posted by Lian Skaf on March 1, 2021.

The issue of whether a jury will be less inclined to award an insurance company plaintiff – versus an individual person or entity – a favorable verdict is a real one for subrogation professionals facing a potential trial. In states where the laws allow carriers to choose between filing in their own name or in the name of the insured, there are numerous factors attorneys must weigh before finalizing the caption. However, if a jury is allowed to know the extent of the carrier’s involvement, the notion of filing in the name of the insured becomes less appealing. Continue reading →

This entry was posted in Evidence, Massachusetts, Parties, Subrogation and tagged Evidence – Probative Value, Massachusetts, Parties, Parties – Real Party in Interest, Subrogation.

Washington Court Finds that Statute of Repose Fraud Exception Argument Lacks Energy

This entry was posted by Lian Skaf on December 9, 2020.

Statutes of repose are generally meant to be absolutes, providing clarity to potential defendants such as contractors. However, in limited scenarios, some states have allowed for exceptions to the defense. For instance, fraud is one potential exception that has been recognized in several jurisdictions and is often raised by parties on the basis of public policy. In Puget Sound Energy, Inc. v. Pilchuck Contractors, Inc., No. 80162-7-1, 2020 Wash. App. LEXIS 2862 (unpublished), the Court of Appeals of Washington determined whether it would allow a fraud exception to its statute of repose for construction activity. The court upheld the trial court’s holding that the statute of repose barred the appellant’s claims, declining to entertain a fraud exception. Continue reading →

This entry was posted in Construction Defects, Statute of Repose, Washington and tagged Construction Defects, Statute of Repose, Washington.

Illinois Federal Court Determines if Damages Are Too Remote

This entry was posted by Lian Skaf on June 3, 2020.

Foreseeability is a tort concept that tends to permeate several aspects of legal analysis, often causing confusion in litigants’ interpretation of, and courts’ application of, foreseeability to their cases. In Cincinnati Ins. Co. v. Progress Rail Services. Corp., 2020 U.S. Dist. LEXIS 73967 (C.D. Ill.), the United States District Court for the Central District of Illinois took on the task of analyzing a case dealing with foreseeability issues to determine if the defendant owed the plaintiff a duty and if the damages were so remote as to violate public policy. The court held that since the defendant’s actions contributed to the risk of harm to the plaintiff and the facts satisfied the four-prong duty test, the defendant owed the plaintiff’s subrogor a duty of reasonable care. It also held that the plaintiff’s damage claim did not open the defendant up to liability that would violate public policy. Continue reading →

This entry was posted in Damages, Illinois, Negligence and tagged Damages, Illinois, Negligence, Negligence – Duty.

In Louisiana, If the Band Plays On, the Plaintiff Cannot Recover Loss of Use Damages

This entry was posted by Lian Skaf on March 9, 2020.

In Jensen v. Matute, 2020 La. App. LEXIS 160, the Court of Appeal of Louisiana considered whether the plaintiff could recover compensatory, loss of use damages following a rear-end car collision. The court held that because the plaintiff was able to mitigate the loss of use and, consequently, suffered no actual loss of use damages, he had no recoverable claim. Continue reading →

This entry was posted in Damages – Personal Property, Louisana and tagged Damages – Emotional Distress, Louisiana.

Virginia Molds Tort Versus Contract Law in New Home Construction Case

This entry was posted by Lian Skaf on January 17, 2020.

Often times, both contract and tort claims co-exist in a subrogation matter and the line between the two can be blurred. This is especially true in the context of damages resulting from new home construction defect claims. However, states are increasingly attempting to define the scope of when the “gist of the action” is based in contract only. In Tingler v. Graystone, 834 S.E.2d 244 (Va. 2019), the Supreme Court of Virginia defined that scope in terms of new home construction. The court defined the “source of duty rule” by holding that claims of nonfeasance sounding only in contract do not give rise to an independent tort claim. The court also reiterated its application of the economic loss doctrine, stating that, when negligent actions result in damage to property other than the product itself, there can be a viable tort claim. Continue reading →

This entry was posted in Construction Defects, Contracts, Economic Loss Rule, Virginia and tagged Construction Defects, Economic Loss Doctrine, Virginia.

Tennessee Looks to Define Improvements to Real Property

This entry was posted by Lian Skaf on November 8, 2019.

For subrogation practitioners dealing with an installation-based statute of repose, knowing what is an improvement to real property is the first battle in what can, but does not have to be, a long fight. Like many other states, Tennessee’s statute of repose bars claims based on improvements to real property. Tennessee’s statute of repose runs four years after substantial completion of the improvement. See Tennessee Code Ann. § 28-3-202. In the case of Maddox v. Olshan Found. Repair & Waterproofing Co. of Nashville, L.P., E A, 2019 Tenn.App. LEXIS 464, 2019 WL 4464816, the Court of Appeals of Tennessee examined whether or not the work done by the defendant, Olshan Foundation Repair & Waterproofing Co. of Nashville, L.P., E.A. (Olshan) — which addressed bowing walls, cracks in the foundation and walls and water intrusion — qualified as improvements to real property for the purposes of the statute of repose. The court held that the work by Olshan essentially amounted to repairs, and did not qualify as improvements to real property. Continue reading →

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