Recall Alert

Briggs & Stratton Recalls Portable Generator Fuel Tank Replacement Caps


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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 October 10, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Briggs & Stratton Recalls Portable Generator Fuel Tank Replacement Caps, Due to Fire Hazard.

According to the CPSC, “[t]he fuel tank replacement caps lack ventilation holes which allow pressure to build up in the fuel tank, posing a fire hazard.”

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Pointing out a Problem

California Supreme Court Holds That Evidence of Industry Custom and Practice May Be Admissible in a Design Defect, Strict Product Liability Case


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In Kim v. Toyota Motor Corp., 6 Cal.5th 21 (Cal. 2018), the Supreme Court of California considered whether the trial court properly allowed the defendant to introduce evidence of industry custom and practice in defense of a strict product liability design defect case. The Supreme Court held that the evidence was relevant and admissible because it was introduced to address the feasibility and cost of alternative product designs, and not to show that the defendant acted reasonably. The court’s holding establishes that, while evidence of industry custom and practice is not admissible to prove or disprove fault in strict liability cases, it is admissible for other purposes, such as analyzing whether a product was defectively designed under the risk-benefit test. Continue reading

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Product Recall

Traeger Grills Recalls Wood Pellet Grills


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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 September 25, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Traeger Grills Recalls Wood Pellet Grills Due to Fire Hazard.

According to the CPSC, grease can leak from the drip tray, posing a fire hazard.

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Recall Alert

Hawthorne Hydroponics Recalls Humidifiers


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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 September 5, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Hawthorne Hydroponics Recalls Humidifiers Due to Fire and Shock Hazards.

According to the CPSC, the humidifiers can overheat while in use.

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Fallen Tree

Georgia Court of Appeals Holds Lay Witness Can Provide Opinion Testimony on the Value of a Property If the Witness Had an Opportunity to Form a Reasoned Opinion


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In Woodrum v. Ga. Farm Bureau Mut. Ins. Co., 815 S.E.2d 650 (Ga. Ct. App. 2018), the Court of Appeals of Georgia considered whether the lower court properly disqualified a contractor as an expert witness and excluded the contractor from offering lay opinion testimony regarding the value of a property. The Court of Appeals held that, while the lower court properly disqualified the contractor as an expert witness, it improperly excluded the general contractor’s lay opinion testimony regarding the value of the property. This case establishes that, in Georgia, a lay witness can provide opinion testimony on the value of a property if the proponent of the testimony demonstrates that the witness had an opportunity to form a reasoned opinion. Continue reading

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Cargo

Carmack Amendment Loss Claims Should Indicate a Specified or Determinable Amount of Money


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In N.Y. Marine & Gen. Ins. Co. v. Estes Express Lines, Inc., 719 Fed. Appx. 691 (9th Cir. 2018), the United States Court of Appeals for the Ninth Circuit (Appeals Court) addressed the question of whether an insurer, N.Y. Marine & General Insurance Company (N.Y. Marine), could recover from a cargo carrier under the Carmack Amendment, 49 U.S.C. § 14706, if the insured’s loss claim did not state a specified amount of money. Finding that § 14706 requires that a party filing a cargo loss claim state a specified or determinable amount of money, the Appeals Court affirmed the district court’s holding that neither the carrier, Estes Express Lines, Inc. (Estes) nor the broker, Exfreight Zeta, Inc. (Zeta), was liable to N.Y. Marine. Continue reading

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Product Recall

Xtava Recalls Allure Hair Dryers


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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 August 15, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Xtava Recalls Allure Hair Dryers Due to Fire, Burn and Electrical Shock Hazards.

According to the CPSC, “[t]he hair dryer and power cord can overheat and catch on fire, posing fire, burn and electrical shock hazards.”

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Water Loss

Rhode Island District Court Dismisses Plaintiff’s Case for Spoliation Due to Potential Unfair Prejudice to Defendant


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In Amica Mutual Ins. Co. v. BrassCraft Mfg., Co., 2018 U.S. Dist. LEXIS 88986 (D.R.I. May 29, 2018), the United States District Court for the District of Rhode Island addressed the question of whether the defendant was so unfairly prejudiced by the subrogating insurer’s spoliation of evidence that dismissal of the plaintiff’s case was the appropriate Rule 37(b)(2)(a)(i)-(vi) sanction. The court, focusing on the potential for undue prejudice to the defendant, granted the defendant’s motion to dismiss. Continue reading

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Time

Utah’s Highest Court Holds That Plaintiffs Must Properly Commence an Action to Rely on the Relation-Back Doctrine to Overcome the Statute of Repose


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Earlier this summer, in Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders LLC, 2018 UT 28, the Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose. In Utah, the statute of repose requires that an action be “commenced within six years of the date of completion.” The plaintiff alleged that its 2014 amended complaint naming the general contractor as a defendant was timely-commenced because, before the date on which Utah’s statute of repose ran, a defendant filed a motion to amend its third-party complaint to name the general contractor as a defendant, and the defendant subsequently assigned its claims to the plaintiff. The plaintiff argued that the filing of its 2014 amended complaint related back[1] to the date of its original complaint. The Supreme Court disagreed, holding that an action is “commenced” by filing a complaint and that a motion for leave to amend does not count as “commencing” an action. Continue reading

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Product Recall

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 August 2, 2018, the CPSC announced the following recalls related to products that present fire and/or explosion hazards:

Zebra Technologies Expands Recall of Power Supply Units for Thermal Printers Due to Fire Hazard

Miller Fireworks Recalls Fireworks Due to Violation of Federal Standard; Explosion and Burn Hazards.

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