Tag Archives: Subrogation

Amazon Loses – It Is a Seller Under Wisconsin’s Products Liability Law

This entry was posted by Lian Skaf on September 5, 2019.

As most subrogation professionals know, Amazon has been fighting products liability claims across the country for some time now. While it has been largely successful in doing so in the past, in a recent decision, Wisconsin sided with the plaintiff. In the case of State Farm Fire & Cas. Co. v. Amazon.com, Inc., 2019 U.S. Dist. LEXIS 122316, 2019 WL 3304887, the United States District Court for the Western District of Wisconsin denied the motion for summary judgment filed by defendant Amazon.com, Inc. (Amazon). The court held that Amazon was so deeply involved with the transaction at issue that it was an entity that could be held strictly liable under Wisconsin law. It also held that 47 U.S.C. § 230 of the Communications Decency Act (CDA) did not immunize Amazon because its liability was not based on posting content from a third party. Continue reading →

This entry was posted in Products Liability, Subrogation, Wisconsin and tagged Products Liability, Subrogation, Wisconsin.

Ohio Court Measures the Damage to a Computer Network by Its Value to the Owner, Not Its Fair Market Value

This entry was posted by Gus Sara on August 21, 2019.

In Westfield Insurance Group v. Silco Fire & Security, 2019 Ohio App. LEXIS 2810, the Court of Appeals of Ohio, Fifth Appellate District addressed whether the trial court properly instructed the jury that the applicable measure of damages for damage done to a computer network was the network’s replacement cost value rather than its fair market value. Based on the unique circumstances of the case, the Court of Appeals held that the trial court did not abuse its discretion when it instructed the jury on the replacement cost measure of damages rather than fair market value. Continue reading →

This entry was posted in Contracts, Damages - Real Property, Ohio, Subrogation and tagged Damages, Ohio, Subrogation.

Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in Construction Contracts

This entry was posted by Gus Sara on July 12, 2019.

In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s insured violated Wisconsin statute § 895.447, which prohibits limitations of tort liability in construction contracts. The Supreme Court affirmed the lower court’s decision that the waiver clause did not violate the statute because it merely shifted the responsibility for the payment of damages to the defendant’s insurance company. The waiver clause did not limit or eliminate the defendant’s tort liability. This case establishes that while
§ 895.447 prohibits construction contracts from limiting tort liability, a subrogation waiver clause that merely shifts responsibility for the payment of damages from a tortfeasor to an insurer does not violate the statute and, thus, is enforceable. Continue reading →

This entry was posted in Construction Defects, Subrogation, Waiver of Subrogation, Wisconsin and tagged Construction Defects, Exculpatory Clause, Subrogation, Waiver of Subrogation, Wisconsin.

Texas Walks the Line on When the Duty to Preserve Evidence at a Fire Scene Arises

This entry was posted by Lian Skaf on July 10, 2019.

The extent to which a loss scene can be altered before adversaries can legitimately cry spoliation has long been a mysterious battleground in the world of subrogation. In the case of In re Xterra Constr., LLC, No. 10-16-00420-CV, 2019 Tex. App. LEXIS 3927 (Tex. App. – Waco, May 15, 2019), the Court of Appeals of Texas, Tenth District, addressed the question of when a party has a duty to preserve evidence. The court found that the trial court abused its discretion in imposing sanctions on the defendants for the spoliation of evidence as the evidence at issue was already gone by the time the defendants knew or reasonably should have known there was a substantial chance a claim would be filed against them. Continue reading →

This entry was posted in Evidence, Spoliation, Subrogation, Texas and tagged Spoliation, Subrogation, Texas.

“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties

This entry was posted by Rahul Gogineni on June 27, 2019.

In Gables Construction v. Red Coats, 2019 Md. App. LEXIS 419, Maryland’s Court of Special Appeals considered whether a contractual waiver of subrogation in the prime contract for a construction project barred a third party – a fire watch vendor hired to guard the worksite – from pursuing a contribution claim against the general contractor. The court concluded that the general contractor could not rely on the waiver of subrogation clause to defeat the contribution claim of the vendor, who was not a party to the prime contract. As noted by the court, holding that a waiver of subrogation clause bars the contribution claims of an entity that was not a party to the contract would violate the intent of the Maryland Uniform Contribution Among Tortfeasors Act (UCATA). Continue reading →

This entry was posted in Contribution-Apportionment, Maryland, Waiver of Subrogation and tagged Contribution, Maryland, Subrogation, Waiver of Subrogation.

New York Court Holds That the “Lesser of Two” Doctrine Limits Recoverable Damages in Subrogation Actions

This entry was posted by Michael L. DeBona on June 11, 2019.

In New York Cent. Mut. Ins. Co. v. TopBuild Home Servs., Inc., 2019 U.S. Dist. LEXIS 69634 (April 24, 2019), the United States District Court for the Eastern District of New York recently held that the “lesser of two” doctrine applies to subrogation actions, thereby limiting property damages to the lesser of repair costs or the property’s diminution in value. Continue reading →

This entry was posted in Damages, Damages - Real Property, New York, Subrogation and tagged Damages, New York, Subrogation.

Property Owner’s Defense Goes Up in Smoke in Careless Smoking Case

This entry was posted by Michael J. Ciamaichelo on June 11, 2019.

Property owners owe a duty of reasonable care to avoid causing harm to neighboring properties. When a property owner knows or should know about a condition that poses a risk of danger to neighboring properties, the property owner must exercise reasonable care to make the condition safe. The Court of Special Appeals of Maryland recently held that, where hundreds of discarded cigarette butts had accumulated in a bed of mulch over an extended period of time prior to the fire at issue, the owner of the property with the mulch beds owed a duty of care to its neighbors to prevent a foreseeable fire. Continue reading →

This entry was posted in Experts, Maryland, Negligence, Premises Liability, Subrogation and tagged Experts, Fire - Cigarettes, Maryland, Negligence – Duty, Subrogation.

When an Insurer Proceeds as Subrogee, Defendants Cannot Assert Contribution Claims Against the Insured

This entry was posted by Shannon M. Warren on May 14, 2019.

In Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l, 2019 U.S. Dist. Lexis 46993 (E.D. Ky.), the United States District Court for the Northern Division of the Eastern District of Kentucky, by adopting a Magistrate Judge’s report and recommendations, see Farmers Mut. Ins. Co. v. Stove Builder, Int’l, Inc., 2019 U.S. Dist. LEXIS 48103 (E.D. Ky. Feb. 11, 2019), considered whether to allow the defendants to file a third-party complaint against the plaintiff’s insureds-subrogors. Finding that the defendants could not pursue contribution claims against the plaintiff’s insureds-subrogors, the court denied the defendant’s motion to file a third-party complaint. Continue reading →

This entry was posted in Contribution-Apportionment, Kentucky, Subrogation and tagged Civil Procedure, Kentucky, Parties, Subrogation.

California Court Invokes Equity to Stretch Anti-Subrogation Rule Principles

This entry was posted by Gus Sara on May 2, 2019.

By: Gus Sara and William L. Doerler

In Western Heritage Ins. Co. v. Frances Todd, Inc. 2019 Cal. App. Lexis 299, the Court of Appeals of California, First Appellate District, addressed whether a commercial condominium association’s carrier could subrogate against the tenants (aka lessees) of one of its member unit owners. After examining the condominium association’s declarations, as well as the lease terms between the owner and the lessees, the court held that the association’s carrier could not subrogate against the lessees because they were implied co-insureds on the policy. To reach its decision, the court explained that an insurer steps into the shoes of its insured, not the party with whom it is in privity. Although the first-party property portion of the association’s insurance policy did not, as required by the association’s declarations, have the owner listed as an additional named insured, the court held that it would be inequitable to treat the association as the sole insured for purposes of determining Western Heritage’s right to bring a subrogation action. Continue reading →

This entry was posted in Anti-Subrogation Rule, California, Landlord-Tenant, Subrogation, Sutton Doctrine and tagged Anti-Subrogation Rule, California, Subrogation.

Tenants Who Negligently Cause Fires in Florida Beware: You May Be Liable to the Landlord’s Insurer

This entry was posted by Rahul Gogineni on March 27, 2019.

In Zurich Am. Ins. Co. v. Puccini, LLC, 2019 Fla. App. LEXIS 1487, 44 Fla. L. Weekly D 383, Florida’s Third District Court of Appeals considered whether a landlord’s carrier, Zurich American Insurance Company (Zurich), was precluded from pursuing a subrogation claim against the landlord’s tenant, Puccini, LLC (Puccini), for fire-related damages. After the fire, Zurich paid its insured, Lincoln-Drexel Waserstein, Ltd. (Lincoln), over $2.1 million. Zurich then proceeded with an action against Puccini. Puccini filed for summary judgment arguing that it was an additional insured under the Zurich policy. The trial court agreed with Puccini and dismissed the action. Zurich then appealed the case to Florida’s Third District Court of Appeals. Finding that the lease contemplated both liability on the part of the tenant and indemnification in favor of the landlord, the court held that the tenant was not an implied co-insured under Zurich’s policy. Thus, the court allowed Zurich’s subrogation action. Continue reading →

This entry was posted in Anti-Subrogation Rule, Florida, Subrogation and tagged Anti-Subrogation Rule, Florida, Landlord-Tenant, Subrogation, Sutton Doctrine.