Defendants often claim that the negligent work they are being sued for was done by “an independent contractor”—thus attempting to alleviate their responsibility. This defense is often raised in cases where construction is being performed. However, it can also be raised when one party contracts with another for a specific type of installation or delivery...
The Pennsylvania Supreme Court recently joined “the overwhelming majority” of states that have declined to recognize a separate cause of action in tort for negligent spoliation of evidence. In Pyeritz v. Commonwealth of Pennsylvania, __ Pa. __, 32 A.2d 687 (2011), the Court held that “Pennsylvania law does not recognize a cause of action for...
The Utah Supreme Court recently approved a number of amendments to the Utah Rules of Civil Procedure which limit discovery in civil actions. The amendments became effective for all cases filed after November 1, 2011. The purpose of the amendments are to allow discovery in proportion to: needs of the case; amount in controversy; complexity of the...
Imagine Mr. and Mrs. Johnson are recent first-time homeowners in California. Last year, they purchased a new home built by Lemon Construction. Shortly after moving into the home, the Johnsons went on a short vacation. To their dismay, they returned the following week to find the entire upstairs of their new house completely flooded. Investigation...
On January 10, 2012, BMW of North America, LLC, announced a voluntary recall of 88,911 Mini and Mini Cooper cars manufactured between 2006-2011 and equipped with 4-cylinder turbocharged engines. The recall arises from overheating of a circuit board which electronically controls an auxiliary water pump that cools the turbocharger in the vehicles. In extreme cases,...
Practitioners and judges frequently use the terms subrogation and contribution interchangeably. This is legally incorrect and, as one insurance company recently learned, the distinction between the two concepts can be fatal. In American States Insurance Company v. National Fire Insurance Company of Hartford 2012 DJDAR 197, an insurance carrier attempted to subrogate against another carrier...
EDRs or "black boxes" now are contained in a wide range of consumer products including copiers, household appliances, alarm systems and cars. "EDRs" can provide a final data picture of how a product was last operating before a failure happened. Technological advances include building EDRs with a read write tamper proof cabability. For example, an...
How airtight is a confidentiality provision in a settlement agreement? In a recent case out of Florida, the court protected a confidential settlement agreement from disclosure to a remaining party. Wal-Mart Stores, Inc. v. Nicolette Strachan et al., ___ So. 2d __, 36 Fla. L. Weekly D2262, Case No. 4D11-2539 (Fla. 4th DCA Oct. 12, 2011). However,...
Fine art losses come in many shapes and sizes. Oftentimes, fine art is a relatively small piece of a homeowner’s or commercial property claim. Occasionally, however, the art represents the vast majority of a claim. You may have heard of the story in 2006 about casino mogul, Steve Wynn, who accidentally poked a hole in...
When to draft an expert report is an area of disagreement amongst subrogation professionals, attorneys and experts. Typically the attorney will request that an expert wait to draft a report until discovery is complete and the deadline to designate testifying experts is on the horizon. Conversely, most adjusters ask for a report as soon as...
