Where the subrogating insurer and insured both have recovery claims and are competing for a limited amount of available money from a defendant, issues arise as to who is entitled to recovery, and/or how the recovery should be divided. These issues fall within the realm of the “made whole rule”, which generally provides, that under certain...
A Louisiana federal court issued a decision this week that may affect thousands of claims in the ongoing Hurricane Katrina litigation. After a 19 day bench trial for five flood victims that filed suit against the United States Army Corps of Engineers (ACOE), U.S. District Judge Stanwood R. Duvall awarded $719,000 in the In Re...
New York Governor Paterson signed into law New York State Bill A40002, which amends CPLR 4545, New York’s Collateral Source Rule. The bill has many aspects, some of which relate to municipal health benefit plans which are not directly germane to subrogation concerns. From a subrogation perspective, the bill both maintains existing restrictive language concerning...
The Economic Loss Doctrine may bar tort claims when a defective product causes injury only to the product itself and not to other property or persons. In many jurisdictions there are exceptions to the doctrine, including when the damage is caused by a “sudden calamitous event.”Recently, the Supreme Court of Tennessee considered the application of...
On June 15, 2009, a special panel on multidistrict litigation ordered 10 federal cases involving liability for allegedly defective Chinese manufactured drywall consolidated in the U.S. District Court of the Eastern District of Louisiana with Judge Eldon E. Fallon. It was also ordered that another 67 liability actions involving allegedly defective Chinese manufactured drywall pending in...
“Dangerous and generally a fruitless occupation.”– Justice Akenhead No, Justice Akenhead was not talking about being a lawyer, but stating that it is inappropriate to rank possible causes of a fire in terms of probability in order to select the most probable. In Fosse Motor Engineers Ltd v Conde Nast (2008), Fosse, the owner of...
Article I, Section 19 of The California Constitution provides that just compensation be paid when private property is taken or damaged for public use. *STOP* Take a deep breath. It is not as tough as it sounds. In fact, after reading this blog you’ll likely find yourself asking "Why haven’t I used inverse condemnation as a cause of action in...
In Canada, the right of subrogation is a product of the common law, although it may be modified by statute or contract. Unlike in the United States, Canadian common law provides that an insurer may sue only in the name of the insured in relation to a subrogated claim .That rationale has its roots in...
Michigan appeared to join those states barring a landlord’s subrogee from suing a tenant in the case of New Hampshire Insurance Group v. Labombard, 155 Mich. App 369, 375 (1986). There, the court held that a tenant is an implied co-insured in every lease, unless “expressly and unequivocal’ stated otherwise. But recent decisions give a...
Effective October 1, 2009, North Carolina’s statute of repose for claims for defective products will be increased from six to twelve years for actions that accrue on or after October 1, 2009. N .C .G .S. 1-46.1(a)(1) . For actions that accrued prior to October 1, 2009, the former statue of six years after the date of initial purchase or consumption...
