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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 , , .

New York’s Court of Appeals Clarifies the Burden of Proof in Summary Judgment Cases


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In Rodriguez v. City of New York, 2018 N.Y. LEXIS 793, 2018 NY Slip Op. 02287 (Apr. 3, 2018), New York’s Court of Appeals, New York’s highest court, addressed the question of whether a plaintiff, in moving for summary judgment on the issue of the defendant’s liability, also needs to establish the absence of his or her own comparative negligence. In a 4-3 decision, a majority of the court held that, because the plaintiff’s comparative negligence is a matter of damages, not liability, the plaintiff does not bear that burden. Continue reading

This entry was posted in Comparative-Contributory Negligence, Litigation, New York and tagged , .

Delaware Tightens Jurisdictional Requirements for Filing Suit Against Foreign Corporations Selling Products in Delaware


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In Genuine Parts Company v. Cepec, — A.3d –, 2016 WL 1569077 (Del. Apr. 18, 2016), the plaintiffs, Ralph and Sandra Cepec, who are Georgia residents, filed suit against, among others, Genuine Parts Company (Genuine Parts), a Georgia corporation that was properly registered to do business in Delaware. The plaintiffs filed suit to pursue asbestos-related personal injury claims having nothing to do with Genuine Parts’ activities in Delaware. Genuine Parts moved to dismiss the claims against it for lack of general and specific personal jurisdiction. The trial court denied Genuine Parts’ motion, finding that, by complying with Delaware’s statute requiring foreign corporations to register to do business in Delaware and to appoint an in-state agent for service of process, Genuine Parts consented to general jurisdiction in Delaware. Because the Superior Court based its finding on a theory of express consent to personal jurisdiction, the court did not conduct a due process inquiry.

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This entry was posted in Delaware, Litigation, Products Liability and tagged , , .

In A Suit By A Subrogee-Insurance Company, The Insured Is Not Liable For Contribution


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When an insurer, as subrogee of its insured, files suit against a defendant to recover its subrogated payments, the defendant, not infrequently, files a third-party complaint against the insured. Typically, the defendant alleges that, if it is liable, then the insured, based on his or her contributory negligence, is liable to the defendant for contribution. Insureds, however, cannot be liable in tort to themselves.

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This entry was posted in Contribution-Apportionment, Litigation, Pennsylvania, Subrogation and tagged , , .

In Florida, Exculpatory Clauses Do Not Need Express Language Referring to the Exculpated Party’s Negligence


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By: Edward Jaeger and William Doerler

In Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), the Supreme Court of Florida considered whether a party to a contract, in order to be released from liability for its own negligence, needs to include an express reference to negligence in an exculpatory clause. The court held that, unlike an indemnification clause, so long as the language in an exculpatory clause is clear, the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not, for that reason alone, render the exculpatory clause ineffective.

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This entry was posted in Contracts, Florida, Litigation and tagged , .

Georgia Clarifies Its Non-Party At Fault Apportionment Statute


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Georgia’s apportionment statute, OCGA § 51-12-33, requires a jury, in some cases, to apportion responsibility for an injury among all those who contributed to it – whether a party to the lawsuit or not – based on each person’s respective share of combined fault. After the apportionment, each defendant’s liability is limited to his or her apportioned percentage. In Zaldivar v. Prickett, — S.E.2d –, 2015 WL 4067788 (Ga. July 6, 2015), the plaintiff, Daniel Prickett (Prickett), sued Imelda Zaldivar (Zaldivar) to recover for injuries that Pricket allegedly sustained in a motor vehicle accident. Zaldivar sought to apportion fault to a non-party, Overhead Door Company, Prickett’s employer, arguing that Overhead Door Company negligently entrusted its vehicle to Prickett. In addition to overruling prior case law precluding, as a matter of law, first-party claims based on negligent entrustment, the court considered whether “fault” can be apportioned to a tortfeasor whose negligence was a proximate cause of the plaintiff’s injury but who is otherwise immune from liability.

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This entry was posted in Contribution-Apportionment, Georgia, Litigation and tagged , , , .

Indiana’s Supreme Court, In a Matter of First Impression, Finds That an AIA Waiver of Subrogation Clause Extends the Waiver to Damage to Non-Work Property


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In Board of Commissioners of County of Jefferson v. Teton Corp., 30 N.E.3d 711 (Ind. 2015), Jefferson County hired Teton Corporation to perform renovation work on the Jefferson County courthouse. Teton hired subcontractors to perform the roofing work.

Jefferson County’s contract with Teton incorporated American Institute of Architects (“AIA”) General Conditions form A201-1987. The AIA contract required Jefferson County to obtain property insurance and included a waiver of subrogation clause that stated, in pertinent part:  “The Owner and Contractor waive all rights . . . for damage caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work.” (Emphasis added). Instead of procuring a separate builder’s risk policy for the renovation work, Jefferson County relied on its existing “all risk” property insurance policy to cover the entire courthouse, including the renovation work.

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This entry was posted in AIA Contracts, Indiana, Litigation, Waiver of Subrogation and tagged , , , .

North Carolina Amends Its Expert Discovery Rule


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In July of 2015, the North Carolina legislature amended N.C. Rule of Civil Procedure 26(b)(4), which governs expert discovery. The new rule becomes effective October 1, 2015 and applies to actions commenced on or after that date.

Under the old rule, parties can obtain discovery related to trial experts by issuing expert interrogatories. Parties can also, upon motion, obtain additional discovery, such as deposition testimony and, with respect to such additional discovery, the court may require the party seeking discovery to pay a fair portion of the fees and expenses incurred by the opposing party in obtaining this additional discovery from its expert.

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This entry was posted in Discovery, Legislation, Litigation, North Carolina and tagged , , .

North Carolina Court Holds That the Plaintiff’s Complaint Did Not Provide Sufficient Notice to Extend the Statute of Limitations After the Plaintiff Voluntarily Dismissed Her Complaint


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Pursuant to North Carolina Rule of Civil Procedure 41(a)(1), a plaintiff, under certain conditions, can voluntarily dismiss his or her complaint and file a new action based on the same claim within one year after the dismissal. In Murphy v. Hinton, — S.E.2d –, 2015 WL 4081966 (N.C. App. July 7, 2015), the Court of Appeals of North Carolina considered whether the plaintiff, who voluntarily dismissed her wrongful death complaint without prejudice, could take advantage of Rule 41(a)(1)’s tolling provision and extend the statute of limitations for an additional year. The court, following Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 358 (1986), held that, in order to toll the statute of limitations, the original complaint must conform in all respects to the rules of pleading. The court also held that the plaintiff’s complaint failed to satisfy the notice pleading requirements of Rule 8(a)(1) because the plaintiff’s negligence claim failed to identify the duty that the plaintiff owed, failed to allege unreasonable conduct and otherwise failed to reference the essential elements of a negligence cause of action. Because the plaintiff’s complaint failed to comply with the “rudimentary notice pleading requirements of Rule 8(a)(1),” the court held that the plaintiff could not rely on Rule 41(a)(1) to extend the statute of limitations. Thus, the court affirmed the trial court’s order dismissing the plaintiff’s complaint based on the statute of limitations.

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This entry was posted in Litigation, North Carolina, Statute of Limitations-Repose and tagged , .

California Homeowners Can Release Future, Unknown Claims Against Builders


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By: Edward A. Jaeger, Jr. and William L. Doerler

In Belasco v. Wells, 183 Cal. Rptr.3d 840, 234 Cal. App. 4th 409 (2015), the California Court of Appeals for the Second District addressed the question of whether a homeowner, when settling an administrative complaint against a licensed homebuilder, can release future, unknown claims. Despite the presence of a California statute, Cal. Civ. Code § 1542, stating that a general release does not extend to claims that the releasor does not know about, the court held that the homeowner’s express release of future claims was enforceable. Thus, the homeowner’s release – signed as part of a 2006 settlement of the homeowner’s construction defect claims against the defendant, a homebuilder – barred the homeowner’s 2012 claims against the builder based on latent defects in the roof of the home that the homeowner discovered in 2011.

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This entry was posted in California, Contracts, Litigation, Right to Repair Act and tagged , , .