The Subrogation Strategist

Courts are faced with the difficult task of drawing a line to determine when the failure to preserve evidence becomes culpable enough to permit a judicial remedy. In State Farm Fire & Cas. Co. v. Cohen, No. 19-1947, 2020 U.S. Dist. LEXIS 163681, the United States District Court for the Eastern District of Pennsylvania (District Court) made clear that a party is not entitled to a spoliation sanction without proof that the alleged spoliation was beyond accident or mere negligence. The District Court emphasized that when evidence goes missing or is destroyed, the party seeking a spoliation sanction must show that the alleged spoliation was intentional and that the alleged spoliator acted in “bad faith” before adverse inferences will be provided.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 16, 2020, the CPSC announced the following recalls related to products that present fire hazards:

1. MWE Investments Recalls Westinghouse Portable Generators Due to Fire Hazard. According to the CPSC, “[t]he recalled portable generators can leak fuel ...

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 9, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Royal Gourmet Recalls Deluxe Gas Grills Due to Fire Hazard; Sold Exclusively at Wayfair.com.

According to the CPSC, “[t]he grill’s plastic regulator ... 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 3, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

CFMOTO Recalls Recreational Off-Highway Vehicles Due to Fire Hazard (Recall Alert).

According to the CPSC, “[t]he fuel line fitting on the vehicles can ... Continue Reading

The California Court of Appeals recently ruled that Amazon.com, Inc. (Amazon) can be held strictly liable for injuries caused by a defective product sold by a third-party vender on its website. Bolger v. Amazon, D075738, 2020 Cal. App. LEXIS 761. The decision in Bolger comes just two months after the United States District Court for the Southern District of Texas reached the same ruling under Texas law in McMillan v. Amazon.com, Inc., No. 18-CV-2242, 2020 U.S. Dist. LEXIS 102025Continue Reading