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 December 23, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Urban Outfitters Recalls Taper Candle Holders Due to Fire Hazard.

According to the CPSC, “[t]he candle holders can catch on fire if they come in contact with ... Continue Reading

New York has joined a growing number of jurisdictions ruling that Amazon can be liable for defective products sold by third-party sellers on its website. The rationale for New York’s recent ruling is based upon Amazon’s level of control over the sale of the product. There are three ways which products are sold on Amazon: (1) Amazon sells, processes and ships the product; (2) a third-party sells, processes and ships the product (i.e., Amazon does not take possession of the product); and (3) a third-party sells the product and Amazon “fulfills” the order by storing, processing and shipping the product through its “Fulfillment by Amazon” (FBA) logistical program. The FBA program has been the lynchpin in many of the recent decisions decided against Amazon, including a recent New York case. Under the FBA, the sellers store their inventory at Amazon’s warehouse until the product is purchased, at which time Amazon retrieves the product from its warehouse shelf, packages it, and ships it to the consumer. Accordingly, Amazon has significant control over products “fulfilled” through the FBA.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 December 16, 2020, the CPSC announced the following recalls related to products that present fire hazards:

1. LG Energy Solution Michigan Recalls Home Energy Storage Batteries Due to Fire Hazard. According to the CPSC, “[t]he home batteries can overheat, posing a ...

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 December 10, 2020, the CPSC announced the following recalls related to products that present fire hazards:

1. Thermo Tents Recalls Mór Series Tents Due to Fire Hazard; Tents are Mislabeled as Fire Retardant (Recall Alert). According to the CPSC, “[t]he tents are ...

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 December 9, 2020, the CPSC announced the following recalls related to products that present fire hazards:

1. Neptune Benson Recalls Delta Ultra-Violet Generators For Pools and Spas Due to Fire Hazard. According to the CPSC, “[w]ater can leak within the generator ...

Statutes of repose are generally meant to be absolutes, providing clarity to potential defendants such as contractors. However, in limited scenarios, some states have allowed for exceptions to the defense. For instance, fraud is one potential exception that has been recognized in several jurisdictions and is often raised by parties on the basis of public policy. In Puget Sound Energy, Inc. v. Pilchuck Contractors, Inc., No. 80162-7-1, 2020 Wash. App. LEXIS 2862 (unpublished), the Court of Appeals of Washington determined whether it would allow a fraud exception to its statute of repose for construction activity. The court upheld the trial court’s holding that the statute of repose barred the appellant’s claims, declining to entertain a fraud exception.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 December 2, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

ADCO Recalls Candles Due to Fire and Burn Hazards; Sold Exclusively at Dollar Tree.

According to the CPSC, “[t]he candles’ high flames can ignite the ... Continue Reading