The Subrogation Strategist

In L.W. v. Audi AG, 108 Cal. App. 5^th 95, the Court of Appeal of California (Court of Appeal) recently held that a foreign manufacturer can be subject to specific personal jurisdiction in California state courts. In L.W., a minor child suffered injuries when an Audi Q7 allegedly malfunctioned and surged forward, pinning the child against a garage wall. The plaintiffs brought suit against Audi AG (Audi Germany) and Volkswagen Group of America, Inc. doing business as Audi of America (Audi America). Audi Germany designed, manufactured and then sold the Audi Q7 to Audi America. Audi ... Continue Reading

In Johnson v. Amazon.com, Inc., No. 4:22-CV-04086, 2024 U.S. Dist. LEXIS 59196, the United States District Court for the Southern District of Texas held that Amazon.com, Inc. (Amazon) can be liable for negligent undertaking claims when products sold on its website are defective.

In Johnson, the Plaintiff, Joshua Johnson (Johnson), purchased a bathmat on Amazon. The bathmat was designed, manufactured and sold by Comuster, a Chinese entity. Nine months after purchasing the bathmat, the bathmat shifted while Johnson was taking a shower and caused him to fall. Johnson sustained a severe cut on his arm that required surgery and left significant scarring.Continue Reading

In Brown v. City of Oil City, No. 6 WAP 2022, 2023 Pa. LEXIS 681 (2023), the Supreme Court of Pennsylvania (Supreme Court) recently held that a contractor can be liable for dangerous conditions it creates even if the hazard is obvious or known by the property owner. In City of Oil City, the City of Oil City (Oil City) contracted with Harold Best and Struxures, LLC and Fred Burns, Inc. (collectively Contractors) to reconstruct the concrete stairs to the city library. Contractors completed their work at the end of 2011. In early 2012, Oil City received reports of issues with the stairs. Oil City notified Contractors that it considered the stairs dangerous and that Contractors’ defective workmanship created the condition. Neither Oil City or Contractors took any action to fix the stairs or warn of the danger and the stairs’ condition worsened with time.

On June 29, 2022, in N.J. Mfrs. Ins. Grp. a/s/o Angela Sigismondi v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS 115826 (Sigismondi), the United States District Court for the District of New Jersey held that Amazon.com, Inc. (Amazon) is a “seller” under New Jersey’s product liability statute and can thus face strict liability for damages caused by products sold on its platform. Although the analysis is state-specific, Sigismondi may serve as an important decision for allowing product defect claims to proceed against Amazon when so often the third-party vendor that lists the product is unlocatable, insolvent, or not subject to the jurisdiction of United States courts.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

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

Seven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.Continue Reading

In New York Cent. Mut. Ins. Co. v. TopBuild Home Servs., Inc., 2019 U.S. Dist. LEXIS 69634 (April 24, 2019), the United States District Court for the Eastern District of New York recently held that the “lesser of two” doctrine applies to subrogation actions, thereby limiting property damages to the lesser of repair costs or the property’s diminution in value.Continue Reading

In Palisades at Fort Lee Condominium Association v. 100 Old Palisade, LLC, et al., 2017 N.J. LEXIS 845 (Palisades), the Supreme Court of New Jersey addressed how the discovery rule – which tolls the statute of limitations – applies in construction defect cases. The court clarified that, when a building has multiple owners, the statute of limitations begins to run when the first owner – be it an original or subsequent owner – in the line of building owners reasonably knew or should have known of the basis for a cause of action.Continue Reading

In Beaufort Builders, Inc. v. White Plains Church Ministries, Inc., 783 S.E.2d 35 (N.C. Ct. App. 2016), the Court of Appeals of North Carolina addressed whether the economic loss rule barred the negligence claim of White Plains Church Ministries, Inc. (White Plains) against Charles F. Cherry (Cherry), the owner of Beaufort Builders, Inc. (Beaufort Builders). The court held that, because the economic loss rule would bar White Plains’ negligence claims against Beaufort Builders, White Plains could not pursue a third-party negligence claim against Cherry, individually.Continue Reading

In Melrose Gates, LLC v. Chor Moua, et al., 875 N.W.2d 814 (Minn. 2016), the Supreme Court of Minnesota, applying the factors the court first articulated in RAM Mutual Insurance Company v. Rohde, 820 N.W.2d 1 (Minn. 2012), analyzed whether the parties to an apartment lease reasonably expected that the tenants would be liable in subrogation for fire damage caused by the tenants’ negligence. The Melrose Gates court held that, based on the language of the lease, the type of insurance the parties purchased, and the fact that the building was a multi-unit structure, the parties intended that the tenants would be responsible for damage to their leased unit but not for damage to other property. Thus, while the landlord’s insurer could recover the amount it paid to repair the damage to the tenants’ unit, it could not recover the amount it paid to repair other units or common areas of the building.Continue Reading

In Rogers v. Wright, 366 P.3d 1264 (Wyo. 2016), the Supreme Court of Wyoming held that home builders have a tort duty of reasonable care and this duty, independent of any contractual obligations, makes the economic loss rule inapplicable.Continue Reading

In Zbranek Custom Homes, Ltd. v. Joe Allbaugh, et al., No. 03-14-00131-CV, 2015 WL 9436630 (Tex.App.-Austin Dec. 23, 2015), the Court of Appeals of Texas, Austin, considered the circumstances under which a general contractor can be held liable for injuries to a non-contracting party’s property. The court held that, because the general contractor, Zbranek Custom Homes, Ltd. (Zbranek), exercised control over the construction of the fireplace at issue, Zbranek owed a duty of care to the first lessees of the home that Zbranek built.Continue Reading

In Dominguez v. Hayward Industries, Inc., Certified Gunite Company d/b/a Custom Pools, and John M. Pieklo, -- So.3d ----, 2015 WL 5438782 (3d DCA Sept. 16, 2015), the District Court of Appeal of Florida, Third District, discussed whether products liability claims related to a pool filter, a component part of a pool system, were subject to Florida’s twelve-year products liability statute of repose, section 95.031, Florida Statutes. The court held that a pool filter does not constitute an improvement to real property and, thus, the plaintiffs’ claims were subject to the statute of repose.Continue Reading

In Nami Resources Company, LLC v. Asher Land and Mineral, Ltd., -- S.W.3d --, 2015 WL 4776376 (Ky. App. Aug. 14, 2015), the Court of Appeals of Kentucky recently declined to expand the scope of the economic loss doctrine, holding that the doctrine precludes misrepresentation claims only in commercial product liability cases.

In Nami Resources, Nami Resources Company, LLC (“NRC”) extracted gas from property owned by Asher Land and Mineral, Ltd. (“ALM”) pursuant to a contract. Under the contract, NRC agreed to pay ALM 1/8th of the gas’ market price. A dispute developed over the amount of royalties that NRC paid to ALM under the contract. ALM sued NRC, asserting, among other things, a claim for breach of contract and a tort claim for fraudulent misrepresentation. NRC argued that ALM’s misrepresentation claim was barred by the economic loss doctrine, contending that ALM’s claims were founded on contractual duties and that, absent a basis independent of the alleged breach of contract, ALM could not maintain its tort claims.Continue Reading