The Subrogation Strategist

The purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate.Continue Reading

On November 25, 2024, in Pickard v. Amazon.com, Inc., No. 5:20-cv-01448, 2024 U.S. Dist. LEXIS 215377, the United States District Court for the Western District of Louisiana (District Court) ruled that Amazon.com, Inc. (Amazon) could be liable for manufacturer-seller liability under the Louisiana Products Liability Act (LPLA) for a defective product sold by a third-party seller through the “Fulfillment by Amazon” program (FBA). The court also dismissed two tort claims against Amazon as follows: (i) Amazon does not qualify as a “seller” for purposes of non-manufacturer seller liability (because passing title is required for that claim); and (ii) there is insufficient evidence to prove the decedent, Archie Pickard (Pickard), relied on Amazon’s safety practices when purchasing the defective product, precluding a claim for negligent undertaking.  Continue Reading

In State Farm Fire & Cas. Co. v. Coway USA, Inc., No. 22-cv-3516, 2024 U.S. Dist. LEXIS 192849, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiff produced sufficient evidence to establish that the defendant sold and/or marketed a product and, thus, could be held liable for an alleged defect in the product. The plaintiff, a subrogating insurance carrier, brought strict product liability and breach of warranty claims against the defendant—the installer of a bidet in its insured’s home—claiming that the defendant also marketed and sold the bidet. The sole evidence to support a finding that the defendant sold the bidet was the homeowner’s testimony that she bought the product from the installer. The court found that the insured’s testimony, without any documentation or other corroborating evidence, was insufficient to establish that the defendant sold the product. Since proof of a sale is a required element for strict product liability and breach of warranty claims, the District Court granted the defendant’s motion for summary judgment, dismissing the case. Continue Reading

Unless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments.

Rules of Evidence

Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of ... Continue Reading

In Myers v. Alfa Mut. Ins. Co., No. CL-2024-0010, 2024 Ala. Civ. App. LEXIS 119, the Court of Civil Appeals of Alabama (Appeals Court) issued a per curium opinion addressing whether the trial court properly awarded damages for loss-of-use for an irreparable, privately owned vehicle. Finding that it had to follow prior precedent from the Supreme Court of Alabama (Supreme Court), the Appeals Court reversed the trial court’s decision.Continue Reading

Products liability is an area of law that both sides of the aisle vigorously litigate. Like in most litigation, products liability claims provide subrogation attorneys with an important means of prosecuting cases against manufacturers, sellers, and other entities in the stream of commerce. Of course, these claims also come with numerous “buyer beware” requirements.Continue Reading

Doubling down on the often quoted phrase: “All is sunny in Workers’ Compensation Subrogation,” just last week, the Supreme Court of Nevada (Supreme Court) provided a huge win for workers’ compensation subrogation professionals.

In Amtrust N. Am., Inc. v. Vasquez, No. 84974, 2024 Nev. Lexis 51, the Supreme Court overruled the much-maligned Breen ^[1] decision/formula and the Poremba ^[2] decision’s limitation on economic damages. The Supreme Court held that workers' compensation insurers may now rely wholly upon NRS 616C.215(5), Nevada’s lien reimbursement statute, to determine the amount an insurer can recover on its lien.Continue Reading

In Gallery Community Association v. K. Hovnanian at Gallery LLC, No. 1 CA-CV 23-0375, 2024 Ariz. App. Unpub. LEXIS 696 (Ct. App.), the Court of Appeals of Arizona (Court of Appeals) discussed whether a homeowners’ association can file an action for breach of the implied warranty of workmanship and habitability arising from construction defects. At issue was whether the implied warranty extended to the areas within the community that the association maintained, including the common areas. The Court of Appeals held that homeowners’ associations can sue builder-vendors for breach of the implied warranty arising from construction defects.Continue Reading

Listen to the newest episode of Subro Sessions, hosted by Lian Skaf and Matthew Ferrie, Partners at White and Williams, entitled, “How to Make the Public Sector an Ally and not a ‘Public Enemy’.” John Lightbody, CFI, CFEI, CFII, Chief Investigator and President of Find The Cause Investigations, LLC, joins Lian and Matt to talk about the best practices for subrogation professionals when working with the public sector during fire investigations including what to do on site, decorum, obtaining the proper investigation documentation and working with both federal and state ... Continue Reading

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 12, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Glen Dimplex Americas Recalls Cadet Apex72 Electric Heaters Due to Fire Hazard. According to the CPSC’s website, “[t]he fan can malfunction and fail to ...