Community Buildings

Virginia Allows Condominium Association’s Insurer to Subrogate Against a Condominium Tenant


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In Erie Insurance Exchange v. Alba, Rec. No. 190389, 2020 Va. LEXIS 53, the Supreme Court of Virginia considered whether the trial court erred in finding that a condominium association’s property insurance provider waived its right of subrogation against a tenant of an individual unit owner. The Supreme Court reversed the lower court’s decision, holding that the insurance policy only named unit owners as additional insureds, not tenants, and thus the subrogation waiver in the insurance policy did not apply to tenants. The court also found that the condominium association’s governing documents provided no protections to the unit owner’s tenant because the tenant was not a party to those documents. This case establishes that, in Virginia, a condominium association’s insurance carrier can subrogate against a unit owner’s tenant where the tenant is not identified as an additional insured on the policy.

The Alba case involved a fire at a condominium building originating in a unit occupied by Naomi Alba (Alba), who leased the condominium under a rental agreement with the unit owner, John Sailsman (Sailsman). The agreement explicitly held Alba responsible for her conduct and the conduct of her guests. An addendum to the lease stated that Sailsman’s property insurance only applied to the “dwelling itself” and that Alba was required to purchase renters insurance to protect her personal property. Along with the rental agreement, Alba received the condominium association’s Rules & Regulations, Declarations and Bylaws. Continue reading

This entry was posted in Implied-Co-Insured, Subrogation – Equitable, Virginia, Waiver of Subrogation and tagged , , , .
Broken Bricks

Illinois Federal Court Determines if Damages Are Too Remote


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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 , , , .
Product Recall

Garia Recalls Golf & Courtesy Electric Vehicles


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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 May 14, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Garia Recalls Golf & Courtesy Electric Vehicles Due to Fire Hazard.

According to the CPSC, “[a] fuse can overheat and melt while the electric vehicle is charging, posing a fire hazard.”

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

Fully Popped Recalls Poppin’ Cobs 10 Pack Microwave Popcorn


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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 7, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Fully Popped Recalls Poppin’ Cobs 10 Pack Microwave Popcorn Due to Fire and Burn Hazards; Sold Exclusively at Uncommon Good Stores.

According to the CPSC, “[t]he popcorn’s paper bag can catch fire in the microwave, posing fire and burn hazards.”

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

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 , , .
Product Recall

Epson Recalls Power Adapters Sold With Epson Scanners


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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 May 1, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Epson Recalls Power Adapters Sold with Epson Scanners Due to Burn and Fire Hazards.

According to the CPSC, “[t]he power adapters can overheat, melt and catch fire, posing burn and fire hazards.”

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

Parties’ Agreement Doesn’t Pull the Trigger on California’s Statute of Repose


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In Hensel Phelps Constr. Co. v. Superior Court, 257 Cal. Rptr. 3d 746 (Cal. Ct. App. 2020), the Court of Appeals of California, Fourth Appellate District, addressed whether a party’s contractual definition of the phrase “substantial completion” controlled the trigger date for California’s construction-related statute of repose, Cal. Civ. Code § 941(a). The Fourth District held that the agreement between the condominium owner and developer for Smart Corner Condominiums and the general contractor, Hensel Phelps Construction Co. (Hensel Phelps) – which determined the date of “substantial completion” for the construction project – did not control when the statute of repose started to run. Continue reading

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

Consumer Product Safety Commission Recalls


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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 16, 2020, the CPSC announced the following recalls related to products that present fire hazards:

  1. Polaris Recalls Model Year 2018 to 2020 Ranger XP 1000 Off-Road Vehicles. According to the CPSC, “[th]e clutch belt can break and damage the secondary clutch and the fuel line, posing a fire hazard to the rider.”
  2. Polaris Recalls Model Year 2019 to 2020 Ranger XP 1000 Off-Road Vehicles. According to the CPSC, “[t]he fuel line can be misrouted above the bracket that protects the fuel line from a clutch belt failure, posing a fire hazard to consumers.”
This entry was posted in CPSC Recalls, Products Liability 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 , , , , , .
Construction Defect

Not so Fast – Florida’s Legislature Overrules Gindel’s Pre-Suit Notice/Tolling Decision Related to the Construction Defect Statute of Repose


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As discussed in a prior blog post, in Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal held that when the plaintiffs provided a pre-suit notice in compliance with §558.004 of Florida’s construction defect Right-to-Cure statute, Fla. Stat. §§ 558.001 to 558.005, et. seq., they commenced a “civil action or proceeding,” i.e. an “action,” within the meaning of Florida’s construction defect Statute of Repose, Florida Statue § 95.11(3)(c). Thus, the court held that the plaintiffs commenced their action prior to the time Florida’s 10-year statute of repose period ended. In overturning the lower court’s dismissal of the action, the court found that because the Right-to-Cure statute, §558 of the Florida Statutes, sets out a series of mandatory steps that must be taken prior to bringing a judicial action, filing pre-suit notice of claim sufficiently constituted an “action” for purposes of Florida’s Statute of Repose. Continue reading

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