Amazon Feels the Heat From Hoverboard Fire Claims
January 20, 2020 —
William L. Doerler - The Subrogation StrategistIn State Farm Fire & Cas. Co. v. Amazon.com, Inc., No. 3:18CV166-M-P, 2019 U.S. Dist. LEXIS 189053 (Oct. 31, 2019), the United States District Court for the Northern District of Mississippi considered a Motion for Judgment on the Pleadings filed by defendant Amazon.com, Inc. (Amazon). Amazon argued that, because it was a “service provider” who cannot be held liable under Mississippi’s Product Liability Act (MPLA), Miss. Code § 11.1.63, the negligence and negligent failure to warn claims filed against it by plaintiff State Farm Fire & Casualty Company (State Farm) failed as a matter of law. The court, looking beyond the MPLA, held that State Farm’s complaint stated a claim against Amazon.
In State Farm, Taylor and Laurel Boone (the Boones), State Farm’s subrogors, purchased two hoverboards from third parties in transactions facilitated by Amazon. They purchased the first hoverboard on October 31, 2015 and the second on November 10, 2015. The Boones started using the hoverboards on or about December 25, 2015. On March 16, 2016, the hoverboards caught fire and the fire spread to destroy the Boones’ home. As alleged in the amended complaint, the hoverboards were “manufactured by unknown manufacturers from China.” State Farm, as the Boones’ subrogee, filed suit asserting negligence and negligent failure to warn claims against Amazon.
Amazon filed a Motion for Judgment on the Pleadings, arguing that State Farm’s claims against it were governed by the MPLA and, as a service provider, it was not liable under the MPLA. In response, State Farm argued that Amazon was liable because it acted as a “marketplace” and that, rather than MPLA claims, Amazon is subject to common law negligence and failure to warn claims. The District Court agreed with State Farm.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Dust Obscures Eleventh Circuit’s Ruling on “Direct Physical Loss”
October 12, 2020 —
Walter J. Andrews, Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery BlogOn August 18, 2020, the United States Court of Appeals for the Eleventh Circuit affirmed a District Court’s 2018 ruling that Sparta Insurance Company need not cover a south Florida restaurant’s lost income and extra expenses resulting from nearby road construction. But, in doing so, the appeals court appears to deviate from even its own understanding of “direct physical loss” under controlling Florida law.
In the underlying coverage action, the insured, Mama Jo’s Inc. operating as Berries in the Grove, sought coverage under its “all risk” commercial property insurance policy for business income loss and incurred extra expenses caused by construction dust and debris that migrated into the restaurant.
Reprinted courtesy of
Walter J. Andrews, Hunton Andrews Kurth,
Michael S. Levine, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Andrews may be contacted at wandrews@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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BWB&O Partner Tyler Offenhauser and Associate Lizbeth Lopez Won Their Motion for Summary Judgment Based on the Privette Doctrine
October 17, 2023 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is excited to share that Newport Beach Partner Tyler D. Offenhauser and Associate Lizbeth E. Lopez recently won their Motion for Summary Judgment based on the Privette Doctrine!
BWB&O’s Client is a local provider of fire safety services and equipment offering nationwide services. The Client was sued in an action pertaining to a claimed dangerous condition of its electrical panel resulting in an arc flash explosion on the Client’s leased property. The Plaintiff asserted that BWB&O’s Client allowed the existence of a defective, outdated, and dangerous electrical panel to exist when Plaintiff performed professional electrical services on BWB&O’s Client’s property as an independent contractor electrician.
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Bremer Whyte Brown & O'Meara LLP
Preliminary Notice Is More Important Than Ever During COVID-19
June 01, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Construction Law Musings, we welcome Justin Gitelman. Justin is the Content Coordinator at Levelset, where over 500,000 contractors and suppliers connect on a cloud-based platform to make payment processes stress-free. Levelset helps contractors and suppliers get payment under control, and sees a world where no one loses a night’s sleep over payment.
As the construction industry continues to adjust to the coronavirus and an uncertain future, contractors are struggling to get paid. During the COVID-19 pandemic, construction businesses across Virginia need to do everything they can to protect their payments, and get paid faster. One simple action that can help fight payment delays: sending preliminary notice on every job.
Subcontractors and suppliers should send preliminary notices out to the GC, project owner, and/or lender at the start of every single project. These tools allow contractors to make themselves visible on crowded job sites, helping contractors get paid more quickly, and, in some cases, securing their right to file a mechanics lien or bond claim.
Preliminary Notices in Construction
The purpose of a preliminary notice is to allow each member of a construction project to know who you are and what work you’ll be performing. With coronavirus in mind, contractors can use preliminary notices to remind the hiring party of their payment expectations. When you submit a preliminary notice on every project, you’ll have legal protection in your corner while also giving yourself a greater opportunity to get paid.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrissghill@constructionlawva.com
Charles Eppolito Appointed Vice-Chair of the PBA Judicial Evaluation Commission and Receives Prestigious “President’s Award”
November 30, 2020 —
Charles Eppolito, III - White and Williams LLPPartner Charles (Chuck) Eppolito, III has been appointed as a Vice-Chair of the Pennsylvania Bar Association (PBA) Judicial Evaluation Commission. His three-year term begins immediately and will expire September 30, 2023. The PBA Judicial Evaluation Commission is responsible for developing and implementing a judicial evaluation process for appellate judicial candidates in the Commonwealth of Pennsylvania. As Vice-Chair, Chuck will oversee reviewing the investigative panel's report, interviewing each candidate, discussing qualifications and reaching an agreement upon and issuing a rating for each candidate for appellate judicial office.
Chuck has a long history of involvement with the 25,000-member organization, serving as PBA Secretary from 2007 to 2010, Chair of the House of Delegates from 2011 to 2013 and President from 2018 to 2019. Most recently, it was announced that Chuck is a recipient of a PBA “President’s Award” for his dedication and commitment to fulfilling the mission of the PBA COVID-19 Task Force. The award will be presented during the virtual PBA Awards Luncheon on Thursday, November 19, 2020.
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Charles Eppolito, III, White and Williams LLPMr. Eppolito may be contacted at
eppolitoc@whiteandwilliams.com
CA Court of Appeal Reinstates Class Action Construction Defect Claims Against Homebuilder
September 03, 2015 —
Beverley BevenFlorez-CDJ STAFFLaurence R. Phillips, Andrew S. Azarmi, and Stefani Warren of Dentons reported that “on August 19, the California Court of Appeal, Fourth District, reinstated a class action asserting construction defect claims against a nationwide homebuilder.” According to the article, the decision is significant because “it effectively opens the door to class claims against homebuilders (and potentially other service providers employed in the homebuilding industry) arising out of alleged construction defects on California residential development and construction projects.”
The decision is unpublished, but “could signal a troubling trend for companies involved in the homebuilding industry in California. It is not yet clear whether the decision will be appealed to the California Supreme Court.”
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Rejection’s a Bear- Particularly in Construction
December 23, 2024 —
Christopher G. Hill - Construction Law MusingsAs I read through this week’s cases published in Virginia Lawyers Weekly, I came across a case posing an interesting question. The question is, “If your bid is rejected along with everyone else’s, can you complain?” The short answer set out by the Rockingham County, Virginia Circuit Court is “No.” In the case of General Excavation v. City of Harrisonburg the Court looked at the Virginia Public Procurement Act’s bid protest provisions in Va. Code 2.2-4360 and 2.2-4364(C) in the context of General Excavation’s protest of the City’s failure to award it (or anyone else for that matter) the contract on which it was the low bidder. The controlling section of the statute allows a challenge to the award or proposed award of a contract.
In defending the action, the City of Harrisonburg argued that, because the Procurement Act waived some of the city’s sovereign immunity, it must be read strictly. The city further argued (somewhat ironically) that, because no award of the contract was given or even proposed, General Excavation could not bring suit because it would not be challenging the “proposed award or award” of a contract. Not surprisingly, the Rockingham County court held with the City and strictly construed the statute against General Excavation in finding that General Excavation did not have the standing necessary to bring suit under the statute.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
