The Subrogation Strategist

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 27, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

At Home Recalls Shag Rugs Due to Violation of Federal Flammability Standard; Fire Hazard.

The CPSC posted the following information about the hazard:

The ...

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 28, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Whirlpool Recalls Glass Cooktops with Touch Controls Due to Burn and Fire Hazards.

According to the CPSC, “[t]he recalled cooktop surface elements can turn ... Continue Reading

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

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 20, 2019, the CPSC announced the following recall related to a product that presents a fire hazard:

Southwire Recalls Electrical Outlet Boxes Due to Fire Hazard.

According to the CPSC, “[t]he electrical receptacles can overheat when in use, posing a fire ... Continue Reading

While pursuing contractors and subcontractors separately can oftentimes be a strategic move in subrogation cases involving construction defects, attorneys must be aware that proceeding in a piecemeal fashion may result in claim preclusion in the later cases. In the case of Girolametti v. Michael Horton Assocs., 2019 Conn. LEXIS 172, 2019 WL 2559548, the Supreme Court of Connecticut considered whether the issuance of an arbitration decision involving the general contractor precluded subsequent claims against subcontractors who worked on the same project. The court held that, because the subcontractors were presumptively in privity with the general contractor for purposes of res judicata and there were no facts requiring the court to depart from that presumption, the doctrine of res judicata applied and precluded the plaintiff’s claims against the subcontractors.Continue Reading

In reviewing a ruling on a motion for summary judgment that found that a component manufacturer owed no duty to install safety features, the Supreme Court of Indiana answered a narrow question that shifts the landscape for product liability litigation pursuant to the Indiana Product Liability Act (IPLA). Brewer v. PACCAR, Inc., 2019 Ind. LEXIS 428, involved a wrongful death claim against PACCAR, Inc. (PACCAR), the manufacturer of a glider kit that is installed on semi-trucks. The glider kit comes with a variety of optional safety features, provided they are specifically requested by the semi-truck manufacturer that integrates the kit into its end product.Continue Reading

Since the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), parties proceeding in product liability cases in Pennsylvania often disagree about jury instructions. In Davis v. Volkswagen Grp. of Am., No. 1405 EDA 2018, 2019 Pa. Super. Unpub. LEXIS 2763, the Superior Court of Pennsylvania, in an unpublished opinion,[1] recently addressed whether the trial court gave proper jury instructions in a products liability case against Volkswagen entities, including Volkswagen Aktiengeselleschaft (Volkswagen). The court held that, despite a statement in Tincher that the plaintiff is the “master of the claim,” the trial court properly instructed the jury on both the consumer expectation test and the risk-utility test for establishing that the product at issue, a Volkswagen Passat, was in a defective condition.Continue Reading