A number of property damage subrogation cases involve pursuit by a property owner’s insurer of a negligent tenant. Once liability is determined, the first part of the legal analysis is to determine application of the Implied Co-Insurance Doctrine. In review of the policy and lease agreement, we determine if the tenant is covered under the...
On March 24, 2023, Florida reduced the Statute of Limitations for negligence claims from 4 years to 2 years for any negligence causes of action arising after the amendment went into effect on that date. Fla. Stat. § 95.11(4)(a); see also Florida House Bill 837, https://www.flsenate.gov/Session/Bill/2023/837. Negligence if often pled in tandem with or as...
Fires resulting from spontaneous combustion of self-heating products such as oil-based stains and certain cooking oils are relatively common. Typically, soiled linens, rags and sawdust are saturated with such products and serve as the first fuel for the fire. In recent years, there has been an increase in restaurant fires involving the spontaneous combustion of...
Frequently, freight brokers attempt to deny subrogation claims for cargo damaged in transit on a truck by arguing that they are accorded broker status and do not have the same strict liability as a “Motor Carrier” under The Carmack Amendment. However, a recent action by the United States Supreme Court this summer supports subrogated insurers...
There are many challenges to subrogation recovery when the fire originates at a neighboring property. To assist with the challenge of pursuing liability, one tip is to look for evidence supporting the fire spread theory. In some jurisdictions, common law negligence claims and code violations are allowed to hold the property owner or property manager...
A 2021 opinion by a Washington State appellate court provided additional guidance on how plaintiffs may avoid the “public duty doctrine” defense in lawsuits against government entities. Norg v. City of Seattle (No. 80836-2-I), involved a wife who called 9-1-1 after her husband suffered a heart attack. She provided the Seattle Fire Department with the...
In subrogation actions arising from a subcontractor’s negligence, a common defense for a general contractor is to allege that the subcontractor was an “independent contractor.” In other words – “it wasn’t me, it was the other guy, and I’m not responsible for him!” But is that always the end of the story? Courts in New...
“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...
