Category Archives: Uncategorized

Ocean State Job Lot Recalls “Growing Table-Mini Greenhouse and Raised Garden Bed”


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On February 15, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Ocean State Job Lot Recalls “Growing Table-Mini Greenhouse and Raised Garden Bed” Due to Fire Hazard

According to the CPSC’s website, “[t]he recalled greenhouses can overheat, posing a fire hazard resulting in property damage and injury.”

Product images from the CPSC website are set forth below:

This entry was posted in CPSC Recalls, Products Liability, Uncategorized and tagged .

Amendments to Federal Rule of Evidence 702 – Expert Testimony


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In April, the Supreme Court sent a list of proposed amendments to Congress that amend the Federal Rules of Evidence. Absent action by Congress, the rules go into effect December 1, 2023.  The proposed amendments affect Rules 106, 615 and, relevant to this article, 702.

Rule 702 addresses testimony by an expert witness. The proposed rule reads as follows (new material is underlined; matters omitted are lined through):

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

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This entry was posted in Experts - Reliability, Experts – Daubert, Uncategorized 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.

 

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Product Recall

Electrolux Group Recalls Frigidaire Gas Laundry Centers


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control.  On July 13, the CPSC announced the following recall related to a product that presents a fire hazard:

Electrolux Group Recalls Frigidaire Gas Laundry Centers Due to Fire Hazard

According to the CPSC’s website, “[t]he felt seal on the dryer drum can be folded inward which can lead to lint accumulation, creating a fire hazard.”

Product images from the CPSC website are set forth below:

This entry was posted in CPSC Recalls, Products Liability, Uncategorized and tagged .

ELD Strikes Again! Michigan Court Hits the Brakes on Plaintiffs’ Economic Loss Claims


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In HDI Glob. SE v. Magnesium Prods. of Am., Inc., No. 360385, 2023 Mich. App. LEXIS 2602 (Magnesium Prods.), the Court of Appeals of Michigan (Court of Appeals) considered whether the lower court erred in dismissing the plaintiffs’ claim for loss of income based on the economic loss doctrine. The court found that while the defendant manufacturer owed a duty to the general public to exercise reasonable care in its manufacturing process, that duty did not apply to the economic damages alleged by the plaintiffs.

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This entry was posted in Contracts, Economic Loss Rule, Michigan, Subrogation, Uncategorized and tagged , , , .

New Mexico Adopts Right to Repair Act


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On April 7, 2023, New Mexico’s governor, Michelle Lujan Grisham, signed into law New Mexico’s Right to Repair Act (Act), 2023 N.M. SB 50. The Act’s effective date is July 1, 2023. The Act applies to construction defects in dwellings, i.e., newly constructed single family housing units designed for residential use. The Act applies to not only newly constructed housing units but also to systems and other components and improvements that are part of the housing unit at the time of construction.

Pursuant to the Act, except for construction defect claims that involve an immediate threat to the life or safety of persons occupying the dwelling, that render the dwelling uninhabitable or in which the seller, after notice, refused to make a repair pursuant to any applicable express warranty, a purchaser must comply with the provisions of the Act before filing a complaint or pursing an alternative dispute mechanism related to a construction defect in the dwelling. A seller who receives a notice complying with the provisions of the Act must give notice to all construction professionals who may be responsible for the defect.

The Act gives the seller an opportunity to inspect the dwelling and take reasonable measures to determine the nature and cause of each alleged construction defect, and the nature and extent of any repairs needed. Further, the Act requires sellers to respond within 60 days. The response may include: a) an offer to repair or replace each alleged construction defect, b) an offer to provide monetary compensation to the purchaser, or c) invoke any remedies provided in the construction contract. If the seller’s response includes a notice of intent to repair or replace the construction defect(s) – and such offer has not been rejected by the purchaser – the purchaser shall allow the seller and the seller’s construction professional a reasonable opportunity to do so.

A purchaser who reasonably rejects the seller’s offer has complied with the requirements and may initiate suit. Similarly, if a seller does not comply with the Act and the seller’s failure is not due to any fault by the purchaser, the purchaser shall follow any remedy provided for in the construction contract, file a complaint in court or pursue any alternative dispute resolution mechanism set forth in the construction contract.

To the extent that the repair and replacement process takes place pursuant to the Act, the statute of repose set forth in NMSA § 37-1-27 and any applicable statutes of limitations is tolled.

Although the Act does not specifically mention that it applies to subrogation claims, because a subrogating insurer steps into the shoes of its insured, subrogation professionals should be aware of this change in the law and, as appropriate, provide the notice set forth in the Act.

This entry was posted in Construction Defects, New Mexico, Right to Repair Act, Statute of Limitations-Repose, Uncategorized and tagged , , , , , .

BISSELL Expands Recall of Cordless Multi-Surface Wet Dry Vacuums


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control.  On April 6, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

BISSELL Expands Recall of Cordless Multi-Surface Wet Dry Vacuums Due to Fire Hazard.

According to the CPSC’s website, “[t]he circuit board inside the vacuum’s battery pack can overheat and smoke, posing a fire hazard.”

Product images from the CPSC website are set forth below:

This entry was posted in CPSC Recalls, Products Liability, Uncategorized and tagged .

Someone Who Hires an Independent Contractor May Still Be Liable, But Not in This Case


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In Allstate Veh. & Prop. Ins. Co. v. Glitz Constr. Corp., 2023 N.Y. App. Div. LEXIS 1180, 2023 NY Slip Op 01171, the Supreme Court of New York, Appellate Division, Second Department (Appellate Court), considered whether a contractor could be found liable for its subcontractor’s alleged negligence in causing injury to a homeowner’s property. The homeowner’s insurer, as subrogee of the homeowner, sought to recover damages from the contractor despite an allegation that the subcontractor – an independent contractor – caused the injury to the homeowner’s property. Finding that there was no evidence that any of the exceptions to the non-liability rule related to hiring independent contractors applied, the Appellate Court affirmed the lower court’s decision granting judgment in favor of the contractor.

In this case, the homeowner hired the contractor (defendant) to convert her garage area into a bedroom and an office. The defendant later hired a subcontractor to perform the electrical rough-in work. At trial, the homeowner’s insurer (plaintiff) presented evidence that the subcontractor, who damaged an existing wire with a drill bit, caused an electrical failure that resulted in a fire. The defendant argued that it could not be held liable for the subcontractor’s alleged negligence because the subcontractor was an independent contractor and, on appeal, the Appellate Court agreed.

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This entry was posted in Negligence, New York, Uncategorized and tagged , .

Relion Battery Recalls Relion Insight Series Lithium Batteries


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control.  On March 2, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Relion Battery Recalls Relion Insight Series Lithium Batteries Due to Thermal Burn and Fire Hazards.

According to the CPSC’s website, “[t]he batteries can overheat, posing thermal burn and fire hazards.”

Product images from the CPSC website are set forth below:

This entry was posted in CPSC Recalls, Products Liability, Uncategorized and tagged .
Gavel

Michigan Court Waives Goodbye to Subrogation Claims, Except as to Gross Negligence


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In Ace American Insurance Company, et. al. v. Toledo Engineering Co., Inc., et. al., No. 18-11503, 2023 U.S. Dist. LEXIS 15222 (Ace American), the United States District Court for the Eastern District of Michigan determined whether insurers could pursue their subrogation claims against the defendants despite a waiver of subrogation in each of the contracts the insured had with the respective defendants. Based on the language of the contracts and the circumstances leading up to the loss, the court held that the insurers could not pursue their subrogation claims – other than their claims for gross negligence – due to waivers of subrogation in the applicable contracts.

In Ace American, the insured, Guardian Industries, LLC (Guardian), retained Toledo Engineer Co., Inc. (TECO) and Dreicor, Inc. (Dreicor) to renovate a glass furnace in the insured’s glass manufacturing plant. Guardian and TECO entered into a contract on December 6, 2016. Guardian and Dreicor entered into a contract on September 29, 2013, that the parties later updated on June 3, 2016. Both defendants began work on the project in the spring of 2017 and were finished with the portion of the work known as the “Cold Tank Repair” prior to the loss.

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This entry was posted in Michigan, Subrogation, Uncategorized, Waiver of Subrogation and tagged , , .