The Subrogation Strategist

In American Fam. Ins. Co. v. NB Elec., Inc., No. A24-0377, 2025 Minn. App. LEXIS 12, the Court of Appeals of Minnesota (Court of Appeals) considered whether an insurer’s subrogation action was time barred under Minnesota’s two-year statute of limitations period. At issue was whether the statute of limitations began to run when the insured homeowner terminated the general contractor or when construction, with a new general contractor, was complete. Because the construction project did not terminate upon the replacement of the general contractor, the Court of Appeals found ... Continue Reading

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White and Williams has one of the longest-standing Subrogation Practices in the nation. This series of the Subro Sessions podcast, entitled “Getting to Know Subro,” is hosted by Lian Skaf, Partner. In this episode, Lian interviews Chris Konzelmann, Partner and Chair of the Subrogation Department, to discuss his 35 years with the firm while volunteering as a fire captain in Moorestown, New Jersey.

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Listen to the newest episode of Subro Sessions, hosted by Lian Skaf and Matthew Ferrie, Partners at White and Williams, entitled, “How to Make the Public Sector an Ally and not a ‘Public Enemy’.” John Lightbody, CFI, CFEI, CFII, Chief Investigator and President of Find The Cause Investigations, LLC, joins Lian and Matt to talk about the best practices for subrogation professionals when working with the public sector during fire investigations including what to do on site, decorum, obtaining the proper investigation documentation and working with both federal and state ... Continue Reading

In Lithko Contr., LLC v. XL Ins. Am. Inc., No. 31, Sept. Term, 2023, 2024 Md. LEXIS 256, the Supreme Court of Maryland considered whether a tenant who contracted for the construction of a large warehouse facility waived its insurer’s rights to subrogation against subcontractors when it agreed to waive subrogation against the general contractor. The court ultimately decided that the unambiguous language of the subrogation waiver in the development agreement between the parties did not extend to subcontractors. The court also held that the tenant’s requirement that subcontracts include a subrogation waiver did not, in this case, impose a project-wide waiver on all parties. The court, however, found that the requirement that the subcontracts include a similar, but not identical, waiver provision rendered the subcontract’s waiver clauses ambiguous and remanded the case to the lower court to determine if the parties to the development agreement – i.e., Duke Baltimore LLC (“Duke”) and Amazon.com.dedc, LLC (“Amazon”) – intended that the waiver clause in the subcontracts covered claims against subcontractors.Continue Reading

This episode of Subro Sessions, hosted by associates Zachariah Sigda and Katherine Dempsey, entitled, “Insured Made Whole Doctrine: Texas and Washington State,” dives into the topic of the made whole doctrine. Zachariah and Katherine define the made whole doctrine and explain how the doctrine applies in both Texas and Washington state courts, using those states to show how the doctrine can vary state-to-state. Thus, it is important for subrogation professionals to consider the made whole doctrine before pursuing recovery.

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In Phila. Indem. Ins. Co. v. Gonzalez, No. 1-23-0833, 2024 Ill. App. Unpub. LEXIS 1372, the Appellate Court of Illinois considered whether the terms of a lease agreement limited a tenant’s liability for fire damages, a fire caused by her negligence, to her apartment unit only. The plaintiff insured the subject apartment building, which incurred damage to several units as result of a fire in the tenant’s unit. The lease defined “Premises” as the specific apartment unit occupied by the tenant and held the tenant responsible for damage caused to the Premises. While the court found that the lease permitted the plaintiff to subrogate against the tenant, it held that the lease terms limited the damages to the tenant’s apartment unit only.

In Gonzalez, the plaintiff’s insured owned a multi-unit apartment building in Chicago. In September 2019, the building owner entered into a lease agreement with the defendant for apartment Unit 601. The lease stated that Unit 601 was the “Leased Address (Premises).” Another provision stated that building owner “hereby leases to Tenant(s) and Tenant(s) hereby leases from Landlord(s) for use as a private dwelling only, the Premises, together with the fixtures and appliances (if any) in the premises…” The lease also stated that “Tenant shall be liable for any damage done to the premises as a result of Tenant’s or Tenant’s invitees, guests or others authorized to reside in the Premises [sic] direct action, negligence, or failure to inform Landlord of repairs necessary to prevent damage to the Premises.”Continue Reading

The newest episode of the Subro Sessions podcast, is hosted by Gus Sara, Partner, and Michael DeBona, Counsel, who are joined by guest J. Pablo Ross, PE, of Ross Engineering. The episode, entitled “Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them – Part 2,” gives insight into the role of the attorney in a joint-evidence investigation, steps that subrogation professionals and experts take to complete the analysis, make appropriate recommendations to the client and the process of evidence lab examinations.

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In Ohio Sec. Ins. Co v. Brakefire, Inc., CA. No. 5:24-cv-267, 2024 U.S. Dist. LEXIS 97606 (Brakefire), the United States District Court for the Northern District of Ohio considered whether a subrogating plaintiff’s negligence claim against a fire sprinkler maintenance company was barred by the maintenance contract between the parties. The court held that even though the plaintiff only asserted a negligence claim, the action was essentially rooted in the contract and, thus, the subrogation waiver and accelerated one-year limitations period in the contract barred the plaintiff’s action entirely. In addition, the court held that because the claim was based on the obligations set forth in the contract, the plaintiff could not proceed in tort.

In Brakefire, the plaintiff’s insured, Skyways Petroleum, LLC owned and operated a Comfort Inn & Suites Hotel (Comfort) in Kent, Ohio. Prior to February 2022, Comfort contracted with defendant Brakefire, Inc. (Brakefire) for maintenance of the fire suppression sprinkler system.  The contract contained a limitation of liability provision which stated that no action shall be brought against the service provider “more than one (1) year after the accrual of the cause of action.” The provision also stated that the parties “agree that their respective insurance companies shall have no right of subrogation against the other on account thereof.” In February 2022, the hotel experienced a severe water loss caused by a sprinkler pipe freezing and bursting. As the hotel’s property insurance carrier, the plaintiff paid over $3.5 million to repair the damages.Continue Reading

The newest episode of the Subro Sessions podcast, is hosted by Gus Sara, Partner, and Michael DeBona, Counsel, who are joined by guest J. Pablo Ross, PE, of Ross Engineering. The episode, entitled “Water Losses 101: A Discussion of Common Causes of Water Losses and How to Investigate Them - Part 1,” explores the most common property damage claim our subrogation team encounters. Gus, Michael and Pablo define the causes, types of losses including product failures, HVAC failures, pipe freezes, overflows and give an overview of what a typical investigation looks like when developing ... Continue Reading

The newest episode of the Subro Sessions podcast, hosted by associates, Ryan Bennett and Melissa Kenney, is entitled “Getting Control of an Accident Scene and Ensuring Evidence is Preserved.” Ryan and Melissa discuss fire scene preservation and safeguarding evidence on water damage claims and in fire loss cases. They share three examples of scenarios in which acting fast, retaining proper investigators and evidence technicians can ensure that the client is in the best position to evaluate subrogation potential.

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In a matter of first impression, the Superior Court of Connecticut (Superior Court), in American Commerce Ins., Co. v. Eastern Fuel Corp., No. CV-206109168-S, 2024 Conn. Super. LEXIS 380, held that a waiver of subrogation provision in a consumer fuel service/delivery contract violated public policy. The Superior Court overruled the motion for summary judgment filed by Eastern Fuel Corporation (Eastern) and determined that the clause was impermissible as the contract was entered into by two parties with unequal bargaining power.

American Commerce Insurance Company (American) provided property insurance to Arlene and James Hillas (the Insureds) for their home in Woodbridge, Connecticut. The Insureds hired Eastern to service their heating system on or around October 25, 2018. The service work at the property included inspecting the oil filters and flushing the fuel lines. On November 1, 2018, when the Insureds turned the heating system on for the first time that season, the two oil tanks on the property were allegedly full. After a series of deliveries, claims that the oil levels were lower than expected, discovering oil staining on the floor and Eastern’s replacement of the oil lines, Eastern delivered another 429 gallons. However, after the delivery, additional leaks were discovered relating to the oil line replacements. Ultimately, the Insureds submitted a claim to American and American paid in excess of $59,000 for the damage incurred.Continue Reading

The point at which an insurance carrier possesses the equitable right of subrogation is an issue on which the states have differed. Some allow carriers to pursue rights of subrogation immediately upon payment and some have taken stricter approaches. Missouri falls into the latter group. By not allowing the carrier the right to file suit against third-party tortfeasors until the insured provides its carrier with an assignment of all its rights, Missouri’s approach has opened the door for challenges to subrogation rights.

In Megown v. Auto Club Fam. Ins. Co., 2024 Mo. App. LEXIS 82, the plaintiff-insureds Michael and Jane Megown (the Megowns) suffered a house fire on February 8, 2016. Their insurance carrier, Auto Club Family Insurance Company (Auto Club) reimbursed the Megowns for their property damage in the amount of $722,433.56. Subsequently, the Megowns sued Auto Club for breach of contract and later amended their complaint to add claims against Tyberius Enterprises, LLC d/b/a Crag Electric (Craig Electric), the third-party tortfeasor, for direct negligence, alleging both property damage and personal injuries. Auto Club intervened in the Megowns’ claim against Craig Electric to protect its interest as subrogee for its property damage payment to the Megowns. Craig Electric settled prior to trial, paying $1,000,000.00 to both the Megowns and Auto Club, to be allocated at a later date. After a bench trial that apportioned the settlement with $722,433.56 paid to Auto Club and $277,566.44 paid to Megowns - and a jury trial awarding no further damages - the Megowns appealed.Continue Reading

Chris Konzelmann, Partner, hosts the newest episode of the Subro Sessions podcast entitled: “Pursuing Claims Against Minors and Their Parents.” In this episode, Chris revisits a case and discusses the problems that may arise when subrogation efforts are targeted towards children and their parents and whether either can be held responsible for tort claims.

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In New Jersey Mfrs. Ins. Co. v. Lallygone LLC, No. A-2607-22, 2024 N.J. Super. Unpub. LEXIS 120, the Appellate Division of the Superior Court of New Jersey (Appellate Division) considered whether New Jersey Manufacturers Insurance Company (the carrier) could bring a subrogation action after its insured, Efmorfopo Panagiotou (the insured), litigated and tried claims related to the same underlying incident with the same defendant, Lallygone LLC (the defendant). The Appellate Division affirmed the trial court’s finding that the prior lawsuit extinguished the carrier’s claims.

Matt Ferrie, Partner, is returning to host the newest episode of Subro Sessions. This episode is the first part of a series entitled “Investigating Residential Electrical Fires.” Joining Matt is Bert Davis, Principal for Romauldi, Davidson & Associates and BDA Engineering. Matt and Bert address common misconceptions and factors to consider when investigating property damage subrogation cases in residential electrical fires.

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In Mutual Benefit Ins. Co. a/s/o Michael Sacks v. Koser, No. 1340 MDA 2023, 2023 Pa. Super. LEXIS 574, 2023 PA Super 252 (Mutual Benefit), the Superior Court of Pennsylvania discussed whether a landlord’s property insurer could file a subrogation action against tenants that had negligently damaged the landlord’s property. Despite there being more than one clause in the lease holding the tenants liable for the damages, the court held that because there was a provision requiring the landlord, not the tenants, to insure the leased building, the insurer could not subrogate against the tenants.

In Pennsylvania, a tenant’s liability for damage to a leased premises in a subrogation action brought by a landlord’s insurer is determined by the reasonable expectation of the parties to the lease agreement. Under this approach, to determine if subrogation is permitted, the court considers the circumstances of the case and examines the terms of the lease agreement.

In Westminster Am. Ins. Co. a/s/o Androulla M. Toffalli v. Bond, No. 538 EDA 2023, 2023 Pa. Super. LEXIS 626, 2023 PA Super 272, the Superior Court of Pennsylvania (Appellate Court) recently discussed the impact of silence on the Sutton Rule with respect to the landlord, Androulla M. Toffalli (Landlord), securing insurance. After holding that the tenant, Amy S. Bond (Bond) t/a Blondie’s Salon – who leased both commercial and residential space in the building pursuant to written leases – was not an implied “co-insured” on Landlord’s insurance policy, the Appellate Court reversed the decision of the trial court.

In this case, Bond rented the ground floor of a property located in Monroe County pursuant to a written commercial lease (Commercial Lease) and operated Blondie’s salon out of the leased location. In addition, Bond rented and lived in a second-floor apartment pursuant to a residential lease (Residential Lease). Both leases required the tenants (Tenants) to obtain insurance for personal items. The leases, however, did not require Landlord to obtain fire insurance for the property.Continue Reading

Brett Tishler, Partner, and Michael Abed, Associate, are back to host the newest episode of Subro Sessions. This is the second of a two-part #podcast series, entitled “Workers’ Compensation Subrogation - Tales by the Water Cooler: Part II– We Got a New Claim, Now What?” Brett and Michael are joined again by a surprise guest, Rob Caplan, Partner, to discuss a new workers’ compensation #subrogation case. Rob talks about a new loss and gives a critical look into the specifics into the investigation, experts, and other factors to determine if there is potential for recovery.Continue Reading

A federal court in West Virginia recently ruled that a negligence claim could proceed against Amazon related to a spy camera used to take unsolicited photos of a teenage girl.  M.S. v. Amazon.com, Inc., No. 3:23-cv-0046, 2023 U.S. Dist. LEXIS 213236 (S.D. W. Va. Nov. 30, 2023). The negligence claim is specifically interesting for subrogation professionals as it potentially provides an additional avenue for recovery against Amazon in addition to a product liability claim.

In 2021, the plaintiff, M.S. (a minor), visited the United States as a foreign-exchange student.  During her stay, she lived with Darrel Wells, a 55-year-old man. Mr. Wells purchased a spy camera that was disguised as a bathroom towel hook on Amazon. The camera was listed for sale by an unknown third party and satisfied through the “Fulfillment by Amazon” program.  The product description showed the camera serving as a towel hook with the caption: “It won’t attract any attention[:] A very ordinary hook,” as shown in the photo below from the pleading.Continue Reading

Brett Tishler, Partner, and Michael Abed, Associate, are back to host the newest episode of Subro Sessions. This is the first of a two-part podcast series, entitled “Workers’ Compensation Subrogation Tales by the Water Cooler: Part I – How to Handle a Case—AKA—What Are We Getting Ourselves Into?” Brett and Michael are joined by a special guest, Rob Caplan, Partner, to trade stories and discuss the many moving parts in workers’ compensation #subrogation—and the many moving parts to consider when dealing with a new claim in order to obtain a recovery.

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In Jewels by Iroff, Inc. v. Securitas Tech. Corp., No. 1:23-CV-556-TWT, 2023 U.S. Dist. LEXIS 172391, a Georgia federal court addressed a suit against a security/alarm company arising from a break-in at a jewelry store where the thieves stole over $1 million in jewelry. The court addressed numerous provisions in the alarm company’s contract – such as a waiver of subrogation, exculpatory and limitation of liability provision – and concluded that the provisions were enforceable. Thus, the court dismissed the plaintiff’s complaint (although it gave the plaintiff the opportunity to try and amend its complaint to state a cause of action).

In February 2022, a break-in occurred in Alpharetta, Georgia at Jewels by Iroff, Inc. (Iroff). Iroff’s insurer, Jewelry Mutual Insurance Company (Insurer), reimbursed Iroff for more than $1.2 million in losses following the incident. Insurer then filed a subrogation action against Iroff’s alarm security contractor, Securitas Tech. Corp. (Securitas), alleging gross negligence, breach of contract and fraudulent misrepresentation.Continue Reading

The discovery rule applies to latent injuries, such that the statute of limitations does not begin to run until the plaintiff knows of or should have known of the injury. In Western World Ins. Group v. KC Welding, LLC, No. 2022-CA-00527-SCT, 2023 Miss. LEXIS 278 (KC Welding), a majority of the justices on the Supreme Court of Mississippi (Supreme Court) affirmed the trial court’s ruling that Western World Insurance Group (Insurer) filed its lawsuit one day late. Thus, the statute of limitations barred Insurer’s lawsuit.

In KC Welding, on July 12, 2018, KC Welding, LLC (KC Welding) sent an employee to Sunbelt Shavings, LLC (Sunbelt) to repair the door of a box containing wood chips. Sunbelt’s employees discovered that KC Welding employees were welding a storage bin that had not been emptied of wood chips and Sunbelt’s employees asked KC Welding’s employees to leave. After that, Sunbelt’s employees attempted to soak the area with water. Later than night, a fire started on Sunbelt’s property, apparently as the result of smoldering wood shavings, a fire that was extinguished on July 13, 2018.Continue Reading

Gus Sara, Partner, and Joe Kuffler, Counsel, reunite to host another episode of Subro Sessions, entitled, “Reading the Small Print: A Discussion of Contractual Impediments to Subrogation” to discuss common issues with contractual provisions.

Subrogation professionals run into various contractual provisions, including subrogation waivers, limitation to liability and damages caps, accelerated statute of limitations, indemnification/hold harmless clauses, notices and pre-suit requirements and venue/forum clauses. Gus and Joe present relevant case scenarios and ... Continue Reading

In State Farm Fire & Cas. Co. v. Tamagawa, Index No. 510977/2021, 2023 N.Y. Misc. Lexis 5434, the Supreme Court of New York considered whether an insurance carrier can settle its property subrogation lawsuit with the defendant, and discontinue the lawsuit, while the carrier’s insured still had pending claims with the carrier and claims for uninsured losses against the defendant. The court held that the carrier’s claims for the amount paid are divisible and independent of the insured’s claims and that the carrier’s settlement did not affect the insured’s right to sue for any unreimbursed losses. The court’s decision reminds us that, in New York, a carrier can resolve its subrogation claim before the insured is made whole.Continue Reading

In State Farm Fire & Cas. Co. v. Tamagawa, Index No. 510977/2021, 2023 N.Y. Misc. Lexis 5434, the Supreme Court of New York considered whether an insurance carrier can settle its property subrogation lawsuit with the defendant, and discontinue the lawsuit, while the carrier’s insured still had pending claims with the carrier and claims for uninsured losses against the defendant. The court held that the carrier’s claims for the amount paid are divisible and independent of the insured’s claims and that the carrier’s settlement did not affect the insured’s right to sue for ... Continue Reading

The newest episode of the Subro Sessions podcast is out now. This episode is hosted by Katherine Dempsey and Melissa Kenney who are joined by Rachael Klein, Senior Fire Investigator at EFI Global. Rachael discusses what the procedures are for fire investigators when they arrive at a loss site, detailing how she finds the area of origin by identifying fire effects and patterns, preserving the scene and if there is potential for subrogation.

If you want to hear more about relevant subrogation topics, tune in on the third Tuesday of every month for the newest episode of Subro Sessions.

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The newest episode of the Subro Sessions podcast is out now. Hosted by Gus Sara, Partner, and Joseph Kuffler, Counsel, this episode tackles a part of the subrogation process that’s all about timing: the statute of repose.

In the latest episode of Subro Sessions, these White and Williams professionals tackle the core principles and issues brought up by the statute of repose. Gus and Joe will define the statute of repose, explain it’s intended purpose and how it is applied, and use real-life examples from their experiences dealing with this topic.

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In Donegal Mut. Ins. Co. v. Thangavel, No. 379, 2022, 2023 Del. LEXIS 227, the Supreme Court of Delaware (Supreme Court) considered whether the Sutton Rule prevented the plaintiff from pursuing subrogation against the defendants. As applied in Delaware, the Sutton Rule explains that landlords and tenants are co-insureds under the landlord’s fire insurance policy unless a tenant’s lease clearly expresses an intent to the contrary. If the Sutton Rule applies, the landlord’s insurer cannot pursue the tenant for the landlord’s damages by way of subrogation. Here, the Supreme Court affirmed the trial court’s decision that the Sutton Rule applied because the lease did not clearly express an intent to hold the tenants liable for the landlord’s damages.

In Thangavel, the plaintiff, Donegal Mutual Insurance Company (Insurer), provided property insurance to Seaford Apartment Ventures, LLC (Landlord) for a residential property in Delaware. Sathiyaselvam Thangavel and Sasikala Muthusamy (Tenants) leased an apartment (the Premises) from Landlord and signed a lease. Insurer alleged that Tenants hit a sprinkler head while flying a drone inside the Premises which caused water to spray from the damaged sprinkler head, resulting in property damage to the Premises. Landlord filed an insurance claim with Insurer, who paid Landlord $77,704.06 to repair the damage. Insurer then sought to recover the repair costs from Tenants via subrogation.Continue Reading

The insurer’s right of subrogation is equitable in nature, even if not based in contract. However, since the insurer steps into the shoes of its insured and is limited to the rights of its insured, an integral part of the investigation process is determining what rights the insured has. Whether or not the insured can settle with the tortfeasor and that whether the settlement would also apply to the subrogated carrier is a question the Supreme Court of New York, a trial court, recently addressed.

In Utica First Ins. Co. v. Homeport I LLC, et al., No. 150448/2022, 2023 N.Y. Misc. LEXIS 3087 (N.Y. Sup. Ct.), the plaintiff insurance carrier’s insured, SI Waterfront Management Inc. (SI Waterfront), owned and operated a restaurant called Wynwood at 24 Navy Pier Court in Staten Island, New York. The owner of the property was Homeport I LLC (Homeport). Significant construction work pertaining to plumbing and draining lines at the property was done by Ironstate Holdings, LLC (Ironstate), the plumbing portion of which was conducted by subcontractor Claire Construction Corp. (Claire). As a result of the construction work, on June 8, 2021, SI Waterfront allegedly sustained property damage from flooding.Continue Reading

The newest episode of the Subro Sessions #podcast is out now. This episode tackles a central part of the #subrogation process: the statute of limitations and is hosted by David Huberman, Partner and Kyle Rice, Associate

In the latest episode of Subro Sessions, these White and Williams professionals tackle the core principles and issues brought up by the statute of limitations. They briefly explain what statutes of limitations are and explain the best ways to view and handle statutes in the subrogation process.

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In Nationwide Prop & Cas. Ins. Co. v. Fireline Corp., No. 1:20-cv-00684, 2023 U.S. Dist. LEXIS 104241, the United States District Court for the District of Maryland (District Court) considered whether the events giving rise to the plaintiff’s claims fell within the scope of a previously formed agreement, thereby rendering the plaintiff’s claims subject to the agreement’s time limitation and waiver of subrogation provisions. The District Court found that the claims fell within the scope of the agreement.

In Patton v Pearson, No. M2022-00708-COA-RC-CV, 2023 Tenn. App. LEXIS 231, the Court of Appeals of Tennessee (Court of Appeals) considered whether the lower court erred in dismissing an insurance carrier’s lawsuit against its insured’s tenant for damages sustained in a fire. While the lawsuit was filed in the name of the landlord (i.e., the insured), discovery revealed that the lawsuit was actually a subrogation lawsuit, brought by the landlord’s insurance carrier. The lower court granted the tenant’s motion for summary judgment based on the Sutton Doctrine, holding that the tenant was an implied co-insured under the landlord’s policy. The Court of Appeals affirmed, finding that although the lease agreement did not reference insurance, the Sutton Doctrine applied, which barred the landlord’s carrier from subrogating against the tenant.

In HDI Glob. SE v. Magnesium Prods. of Am., Inc., No. 360385, 2023 Mich. App. LEXIS 2602 (Magnesium Prods.), the Court of Appeals of Michigan (Court of Appeals) considered whether the lower court erred in dismissing the plaintiffs’ claim for loss of income based on the economic loss doctrine. The court found that while the defendant manufacturer owed a duty to the general public to exercise reasonable care in its manufacturing process, that duty did not apply to the economic damages alleged by the plaintiffs.Continue Reading

In United States Automatic Sprinkler Corporation v. Erie Insurance Exchange, et al., No. 2SS-CT-264, 2023 Ind. LEXIS 105, the Supreme Court of Indiana (Supreme Court) reversed an order of the trial court that denied a motion for summary judgment filed by a sprinkler contractor. At issue was whether commercial tenants – one who contracted with the sprinkler contractor and others who did not – could recover for their respective property damages. The court held that under the contract’s subrogation waiver and agreement to insure, the contracting tenant waived its insurer’s rights to recover through subrogation. With respect to the non-contracting tenants, who sought to recover only property damages, the court held that the absence of contractual privity barred their recovery.

The case centered around a sprinkler system that malfunctioned and flooded the Sycamore Springs Office Complex (Landlord), causing extensive property damage to four commercial tenants. Surgery Center, one of the four tenants, requested permission from the Landlord to install a sprinkler system inside the building. Landlord agreed, in exchange for Surgery Center agreeing to be solely responsible for maintaining the sprinkler system. Surgery Center hired United States Automatic Sprinkler (Automatic Sprinkler) to both install and conduct periodic inspection and testing of the sprinkler system. The contract terms outlined the scope of work to be performed by Automatic Sprinkler and the work was limited to the inspection and testing of the sprinkler system. Although repairs and emergency services were excluded from the contract, each could be performed upon the request and authorization of Surgery Center for an additional cost. The contract also contained certain risk allocation provisions including a waiver of subrogation and an agreement to insure.Continue Reading

In Chubb Lloyds Inc. Co. of Tex. v. Buster & Cogdell Builders, LLC, No. 01-21-00503-CV, 2023 Tex. App. LEXIS 676, the Court of Appeals of Texas, First District (Court of Appeals) considered whether the lower court properly dismissed the plaintiff’s subrogation case by enforcing a subrogation waiver in a construction contract which was not fully executed.  The contract was signed by only one of the two subrogors and was not signed by the defendant general contractor.  The Court of Appeals affirmed the trial court’s decision, holding that despite the lack of signatures, the evidence established mutual assent to the contractual terms by all parties.

The plaintiff’s subrogors, Jeffrey and Mary Meyer (collectively, the Meyers), retained defendant Buster & Codgell Builders (BCB) to expand their residence.  BCB drafted a contract using the American Institute of Architects (AIA) standard form contract for residential construction.  The AIA contract included, by reference, a subrogation waiver that applied to BCB and its subcontractors.  Prior to beginning the work, BCB emailed Jeffrey Meyer a version of the contract that only had one signature block for both Jeffrey and Mary Meyer.  Minutes later, BCB sent a second version of the contract which had a signature line for each of the Meyers.  However, Jeffrey Meyer signed the first version of the contract and emailed it back to BCB.  In the subject line of his email, Mr. Meyers asked that BCB countersign and return the contract.  BCB did not sign and return the contract.Continue Reading

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 Ace American Insurance Company, et. al. v. Toledo Engineering Co., Inc., et. al., No. 18-11503, 2023 U.S. Dist. LEXIS 15222 (Ace American), the United States District Court for the Eastern District of Michigan determined whether insurers could pursue their subrogation claims against the defendants despite a waiver of subrogation in each of the contracts the insured had with the respective defendants. Based on the language of the contracts and the circumstances leading up to the loss, the court held that the insurers could not pursue their subrogation claims - other than their claims for gross negligence - due to waivers of subrogation in the applicable contracts.

In Ace American, the insured, Guardian Industries, LLC (Guardian), retained Toledo Engineer Co., Inc. (TECO) and Dreicor, Inc. (Dreicor) to renovate a glass furnace in the insured’s glass manufacturing plant. Guardian and TECO entered into a contract on December 6, 2016. Guardian and Dreicor entered into a contract on September 29, 2013, that the parties later updated on June 3, 2016. Both defendants began work on the project in the spring of 2017 and were finished with the portion of the work known as the “Cold Tank Repair” prior to the loss.Continue Reading

In United States Aviation Underwriters v. Turnberry Airport Holdings, LLC, No. 3D22-270, 2023 Fla. App. LEXIS 1207 (U.S. Aviation), the Court of Appeal of Florida, Third District (Appellate Court) considered whether the insurer for a commercial landlord could pursue subrogation against the landlord’s tenant.  Based on the terms of the lease between the landlord and the tenant, the Appellate Court held that the landlord’s insurer could not pursue subrogation.

In U.S. Aviation, the defendant, Turnberry Airport Holdings, LLC (Turnberry Airport) leased space to an insured aircraft owner.  The lease contained the following provision:

TENANT agrees that all policies of insurance obtained by it in connection with the Space or as required hereunder shall contain appropriate waiver of subrogation clauses.Continue Reading