A recent decision by the Ontario Superior Court of Justice serves as a reminder of how contractual language in lease agreements may permit recovery against a negligent party in subrogated claims. In Designer Collection Sales Inc. v. 161 Spadina Inc., (decided May 8, 2012) a frozen water pipe burst in an unoccupied upstairs unit of a...
Recorded Statements and Work Product Protection On June 25, 2012, the California Supreme Court rendered its decision on a critical issue for attorneys and investigators alike: Is a recorded statement taken by an attorney, or her/his agent, afforded attorney work product protection? For years, most attorneys in Southern California would respond “of course it’s protected!” This...
Imagine you are in the middle of a complicated fire subrogation case. Each side has multiple lay and expert witnesses. After your expert finishes testifying about the fire’s cause, one confused looking juror raises his hand with a clarification question for your expert. The judge informs the juror that this is not permitted, and you...
A recent Oregon case offers a reminder that subrogating carriers need to carefully examine personal jurisdiction before pursuing an out-of-state defendant. In Robinson v. Harley Davidson Motor Company (Oregon Ct. App. 2012), Oregon resident Robinson was riding her Harley Davidson motorcycle in Idaho when she noticed a problem with the front wheel. Although she had...
On Thursday, March 22, 2012, the Colorado State Forest Service initiated a controlled burn on property owned by the Denver Water Board and located in Jefferson County, Colorado. This 50 acre prescribed burn was part of an ongoing fuel management program in the Lower North Fork area pursuant to a service agreement between the Colorado...
Property subrogation cases that proceed against developers and seller-builders of homes are suddenly apt to being diverted from judicially engaged litigation into the province of Judicial Reference pursuant to California Code of Civil Procedure Section 638. In essence, this Code section exercises to remove judicial litigation and substitute independent arbitration pursuant to a written agreement...
In Fortis Benefits v. Cantu, 234 S.W.3d 642 (Tex.2007), the Texas Supreme Court held that the “made whole” doctrine does not apply where the parties’ agreed contract provides a clear and specific right of subrogation. Despite this ruling, the Austin Court of Appeals was recently confronted with a situation where a trial court attempted to...
Thinking about subrogating against a tenant in Washington? Think again because the Washington Court of Appeals has re-affirmed existing law and increased the risks of such a challenge. Since Cascade Trailer v. Beeson was decided 1988, Washington courts have held that tenants are implied co-insureds under a landlord’s property policy. This holding leaves the landlord’s insurer without...
The sooner evidence can be evaluated and preserved, the better the prospects for a successful outcome. The Federal Rules of Civil Procedure afford to potential plaintiffs and defendants a uniform standard when pre‐action “discovery” can be obtained. Strictly speaking, the relief sought is not discovery, as the rule is utilized to preserve evidence. Federal Rule...
The Wisconsin legislature enacted a comprehensive tort reform package in early 2011. Part of the legislation changed Wisconsin’s evidence rules governing the admissibility of witness testimony on scientific, technical or specialized subjects. Wisconsin law now aligns with federal standards, which means that Wisconsin practitioners will have to identify any expert opinions they may need in a particular...
