The Subrogation Strategist

In Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal recently concluded that the date on which 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., is the date on which the plaintiff 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, reversing the decision of the trial court, the Fourth District held that the plaintiffs timely-filed their construction defect action against the defendants.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 October 25, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Haier America Recalls Top-Mount Refrigerators Due to Fire Hazard.

According to the CPSC, “[a]n electrical component in the refrigerator can short ... 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 October 19, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Brookstone Wireless Speakers Recalled Due to Fire Hazard.

According to the CPSC, “[t]he lithium ion batteries in the wireless speakers can overheat and ... Continue Reading

Recent court decisions have signaled the courts’ proclivity to prefer arbitration over full-fledged litigation when provisions in construction contracts are called into question. While the courts recognize a party’s constitutional right to a jury trial, the courts also lean strongly towards resolving disputes via arbitration as a matter of public policy, especially if a construction contract carves out arbitration as an alternative to litigation.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 October 18, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Hydrolevel Recalls Controllers for Slant/Fin Boilers Due to Fire Hazard.

According to the CPSC, “[a] malfunction in the recalled controller can cause the ... 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 October 18, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Kikkerland Recalls Wireless Charger Bedside Pockets Due to Fire and Burn Hazard.

According to the CPSC, “[t]he wireless charger bedside pockets can ... 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 October 11, 2018, the CPSC announced the following recall related to a product that presents a fire hazard:

Cooper Lighting Recalls Solar/Battery Powered Light Fixtures Due to Fire Hazard.

According to the CPSC, “[t]he batteries in the solar-powered light ... 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 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 ... Continue Reading

In Kim v. Toyota Motor Corp., 6 Cal.5^th 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