Most people have heard the old adage, “If it ain’t broke, don’t fix it.” But, is the opposite true? If something was fixed, does that suggest it was broken in the first place. In many cases, evidence that a product’s design was changed can be compelling evidence that the original product was defective. Many states...
Consider this hypothetical: It is 2 a.m. on a Monday morning. John and Jill Smith are fast asleep in the master bedroom while their kids are asleep down the hall. John awakes to the noisy smoke detector and the smell of smoke coming from their master bathroom. John goes to the bathroom to see what...
The California Supreme Court, in Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP (2014) DJDAR 8787, recently held that an architect which serves as principal architect on a project owes a duty of care to future homeowners in the design of a residential building. Such architects owe that duty of care even when they do not actually...
The New Law Journal is likely to soon feature the following article by Rob Kay discussing the very recent English case of Emirates Trading Agency LLC v. Prime Mineral Exports Private Limited [2014] EWHC 2104 (Comm). The decision held that a clause which required parties to have friendly discussions prior to resorting to arbitration – a clause...
A frequent question that arises with claims involving alleged defective products is what effect, if any, the age of the product has on recovery. It’s a common misconception that simply because a product is “old,” any claim for damages caused by it are barred. However, the extent to which there could be recovery for damages...
In British Columbia, condominiums are referred to as “strata corporations”. When a loss occurs at a strata corporation, there could be potential for subrogation. However, even though the wrongdoer may be known to the strata corporation, there are limitations on commencing an action. It is important to be aware of these limitations as proceeding otherwise...
Brit Inns Ltd v. BDW Trading Ltd is an illustrative example of where litigation (and in this case, a subrogated claim) can go wrong. Indeed, the judge said “[t]his litigation has gone wrong for everybody.” It does, though, have important aspects that can improve Claimants and Defendants approaches to subrogation claims. Facts A contractor caused flooding...
As the State of Texas continues to enjoy strong population growth, condominiums will continue to proliferate particularly in Texas’ largest cities. For subrogation professionals who occasionally see claims associated with condominium associations, it is helpful to have an understanding of the Texas Uniform Condominium Act (“UCA”) and how it may affect potential subrogation rights. The...
In most jurisdictions today, to recover under a strict products liability theory, the Plaintiff must prove that a defect in the subject product was a producing cause of the Plaintiff’s damages. More importantly, in order to recover under a strict products liability theory, the Plaintiff must show that the defective product caused physical harm to...
When faced with a subrogation loss involving a new or fairly new house, and a potential construction defect that caused the loss, one of the first things to look for is how warranties can help or hurt your case. Did the builder give an express warranty? For how long? Were any warranties disclaimed? Do implied...
