The Subrogation Strategist

In Hensel Phelps Constr. Co. v. Superior Court, 257 Cal. Rptr. 3d 746 (Cal. Ct. App. 2020), the Court of Appeals of California, Fourth Appellate District, addressed whether a party’s contractual definition of the phrase “substantial completion” controlled the trigger date for California’s construction-related statute of repose, Cal. Civ. Code § 941(a). The Fourth District held that the agreement between the condominium owner and developer for Smart Corner Condominiums and the general contractor, Hensel Phelps Construction Co. (Hensel Phelps) – which determined the date of “substantial completion” for the construction project - did not control when the statute of repose started to run.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 April 16, 2020, the CPSC announced the following recalls related to products that present fire hazards:

1. Polaris Recalls Model Year 2018 to 2020 Ranger XP 1000 Off-Road Vehicles. According to the CPSC, “[th]e clutch belt can break and damage the secondary clutch ...

In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing., L.L.C., No. 2019-FC-10285-SCT, 2020 Miss. LEXIS 44, the Supreme Court of Mississippi considered whether the subrogation waiver in the General Conditions of the Construction Contract, American Institute of Architects (AIA) form A201-2007, applied to claims for damages to property unrelated to the construction work. Siding with the majority of jurisdictions that have addressed this issue, the court interpreted the AIA subrogation waiver to apply to any property damage, whether or not related to the construction work (i.e. the Work), if the property insurance covering the non-Work property also insured the construction work.Continue Reading

As discussed in a prior blog post, in Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal held that when 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., they 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, the court held that the plaintiffs commenced their action prior to the time Florida’s 10-year statute of repose period ended. In overturning the lower court’s dismissal of the action, the court found that because the Right-to-Cure statute, §558 of the Florida Statutes, sets out a series of mandatory steps that must be taken prior to bringing a judicial action, filing pre-suit notice of claim sufficiently constituted an “action” for purposes of Florida’s Statute of Repose.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 April 2, 2019, the CPSC announced the following recalls related to products that present fire hazards:

1. Southern Motion Recalls “Wireless Power” Reclining Furniture Due to Fire Hazard. According to the CPSC, “[t]he lithium-ion batteries used to power the ...

Will COVID-19 impact subrogation? Like so much else, the answer is “yes.”

The global effect of COVID-19 is unlike any event in human history. More than 4 billion people—over half of the world's population—are currently under confinement measures. In just a few short weeks, COVID-19 has impacted nearly every aspect of life across the globe. In the United States, stay-at-home orders started in mid-March. We can only speculate how long this will be the new norm. On March 29th, President Trump suggested the spread of the coronavirus will not peak for at least another two weeks and he extended the national social distancing guidelines through April 30th.Continue Reading