The Subrogation Strategist

Unless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments.

Rules of Evidence

Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of ... Continue Reading

In Homesite Ins. Co. a/s/o Adam Long v. Shenzhen Lepower Int’l Elecs. Co., Ltd., No. 6:23-CV-981, 2024 U.S. Dist. LEXIS 22002, the United States District Court for the Northern District of New York (the Court) considered whether Homesite Insurance Company (the Carrier) sufficiently pled a strict products liability claim against Shenzhen Lepower International Electronics Company Ltd. (Shenzhen). Finding that the Carrier’s complaint did not plausibly allege a strict products liability claim under any of the three available theories of liability, the Court granted Shenzhen’s motion to dismiss the Carrier’s complaint under Federal Rule of Civil Procedure 12(b)(6).

In University of Massachusetts Building Authority v. Adams Plumbing & Heating, Inc., 2023 Mass. App. Unpub. LEXIS 28, 102 Mass. App. Ct. 1107, the Appeals Court of Massachusetts (Appeals Court) considered whether the lower court properly held that the plaintiff’s breach of contract and indemnification claims were time-barred by the statute of repose because they sounded in tort.  The Appeals Court held that while the six-year statute of repose only applies to tort claims, they can also bar claims for breach of contract and indemnification if they sound in tort.  The Appeals Court affirmed the lower court’s ruling, finding that the plaintiff’s breach of contract and indemnification claims were just negligence claims disguised as non-tort claims.

In 2013 and 2014, the University of Massachusetts (UMass) retained various contractors to renovate the dining hall for one of its campus buildings, which included the installation of new ductwork for the kitchen’s exhaust system.  The dining hall opened for service in September 2014.  In the Spring of 2018, it was discovered that the ductwork for the kitchen had collapsed.  Further investigation revealed other deficiencies with the exhaust system.  On December 1, 2020, UMass filed a lawsuit against various contractors, asserting negligence, breach of contract, and indemnification. The breach of contract claims alleged breach of express warranties.Continue Reading

In a subrogation action, one party is substituted to the rights and remedies of another with respect to a lawful claim. The substituted party (the subrogee) is legally able to pursue any right or seek any remedy that would be available to the subrogor regarding that claim. But can a defendant in a subrogation action assert any claim against the subrogee that it would have against the subrogor? In Federated Mut. Inc. Co. v. Kosciusko County, No. 3:20-CV-960, 2021 U.S. Dist. Lexis 88735, the United States District Court for the Northern District of Indiana considered whether a defendant could assert counterclaims against the insureds/subrogors in an action filed in the name of their subrogee. The court held that since the insurerds/subrogors were not a party to the action and the defendant could assert the substance of its counterclaim as a defense, the defendant could not file counterclaims against the insureds/subrogors in the insurer’s subrogation action.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

Although there are times when both parties agree on the need to perform destructive tests on an object, when the parties disagree, the party seeking the destructive tests must justify its request. In Doerrer v. Schreiber Foods, Inc., et al., No. 2017-08582, 2019 N.Y. App. Div. LEXIS 4743, the Second Department of the Supreme Court of New York’s Appellate Division recently explained what a defendant moving to secure destructive testing needs to show in order to perform the testing it seeks.Continue Reading

In Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l, 2019 U.S. Dist. Lexis 46993 (E.D. Ky.), the United States District Court for the Northern Division of the Eastern District of Kentucky, by adopting a Magistrate Judge’s report and recommendations, see Farmers Mut. Ins. Co. v. Stove Builder, Int’l, Inc., 2019 U.S. Dist. LEXIS 48103 (E.D. Ky. Feb. 11, 2019), considered whether to allow the defendants to file a third-party complaint against the plaintiff’s insureds-subrogors. Finding that the defendants could not pursue contribution claims against the plaintiff’s insureds-subrogors, the court denied the defendant’s motion to file a third-party complaint.Continue Reading

In Texas, an action against a licensed/registered professional arising from the provision of professional services requires the plaintiff to file a “Certificate of Merit” (COM), which is an affidavit from a third-party professional setting forth the theory of liability against the professional. Tex. Civ. Prac. & Rem. Code § 150.002. The COM must be filed contemporaneously with the complaint, unless the following two conditions, contained within Section 150.002(c), are both satisfied. First, the action must be filed within ten days of the expiration of the statute of limitations or repose. Second, the plaintiff must specifically allege in its initial petition against the professional that there is insufficient time to obtain a COM before the statute of limitations or repose expires. In such cases, a court will grant the plaintiff a 30-day extension to file a COM and the plaintiff may obtain further extensions from the court for “good cause.” If a plaintiff fails to comply with the COM requirement, Section 150.002(e) requires the court to dismiss the complaint and the dismissal “may be with prejudice.”Continue Reading