On Monday, June 21, 2010, the United States Supreme Court issued its opinion in Kawasaki Kisen Kaisha LTD. v. Regal-Beloit Corp. By a 6-to-3 vote, the court said the Carmack Amendment does not apply to a shipment originating overseas under a single through bill of lading. The terms of the through bill of lading govern the...
On June 7, 2010, in a unanimous decision, the United State Supreme Court reversed the Eleventh Circuit in Krupski v. Costa Crociere S.p.A., holding that relation back under Fed. R. Civ. P. 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge or timeliness in...
A California court recently held that an insurer had a duty to preserve an allegedly defective tire for use as evidence in the insured’s product liability case. Cooper v. State Farm Mutual Auto. Ins. Co., 177 Cal.App.4th 876 (2009, 4th Dist., Div. 2). Plaintiff Bryan Cooper, an insured of State Farm, was involved in a...
The fire loss involves your insured’s fireplace. The fire originally starts in the fireplace, but spreads to nearby combustibles, catching the structure on fire. Is there a subrogation case? Once a fireplace loss comes in, thorough analysis of the fireplace system needs to take place. Generally, fireplaces are masonry built of bricks, blocks, or stone and mortar. The other...
The recent California Appellate Court decision of Interstate Fire & Casualty Insurance Company v. Cleveland Wrecking Company (2010) 182 Cal.App.4th 23, illustrates that under the right circumstances, a liability insurer can subrogate against a third party to recover amounts paid to resolve a first party personal injury claim. The case involved a construction site personal injury...
The Third District Court of Appeal of Florida recently brought us closer to clarity on Florida’s approach to when a landlord’s insurer can sue a tenant. State Farm of Florida Ins. Co. v. Loo, 2010 WL 445945 (Fla. 3d DCA Feb. 10, 2010). For the most part, jurisdictions adopt one of three approaches in this context:...
It’s every horseman’s nightmare—a trailer accident. There are many causes of these accidents, but in the chaos of attempting to remove the horses and tend to their wounds (or worse), questions that could pave the way for a subrogation opportunity often go unanswered. This post will discuss some of the primary reasons for trailer accidents, and subrogation...
Mutual consent and court ordered mediation is becoming more prevalent as a means to resolve matters in conflict as litigation costs escalate and court calendars suffer from over-crowding, greater demand and budgetary constraints. While mediation is a valuable forum to access for all parties, there are specific areas which are often overlooked in preparing a matter...
Chlorinated polyvinyl chloride ("CPVC") has been used in potable water distribution systems since the 1960s. More recently, CPVC has been used in high rise fire suppression piping systems. Within the last decade, failures in these systems have been identified raising questions as to (1) the appropriateness of CPVC and (2) the suitability of CPVC when mated with steel piping. ...
Have you ever experienced the following all-too-common frustrating subrogation scenario: Your cause and origin expert determines that a fire started from a particular product but, after destructive examination of the product, your engineer is unable to identify the defect which caused the product to fail. Even though you cannot identify the specific defect, you are not necessarily out...
