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.
In Ryan Altenbaugh, et al. v. Benchmark Builders Inc., et al., No. 120, 2021, 2022 Del. LEXIS 24, the Supreme Court of Delaware recently affirmed the lower court’s ruling that the statute of limitations barred the homeowners’ negligent construction claims. Although the court applied the discovery rule to toll the running of the three-year statute of limitations, it found that the homeowners were on inquiry notice of the defects within their home eight years before filing suit. Continue reading
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.