Disciplined in Sophisticated Defense and Insurance Litigation

January 27, 2017 | Publication| When Pipes Go Pop

Jessica M. Skarin, Kathleen Brown

This article originally appeared in the CLM Magazine, a publication of the Claims & Litigation Management Alliance (CLM). Legal opinions may vary when based on subtle factual differences. All rights reserved.

It is once again that time of year when calendars are replaced and claims of freeze-induced sprinkler line failures exhaust any leftover holiday cheer. Although we may not see the historic low temperatures associated with the polar vortex of 2014, the winter season always brings with it an influx of freeze-related claims. Notably, the involvement of Mother Nature does not automatically preclude a subrogation recovery, and these types of claims should be triaged promptly and efficiently in order to avoid overlooking subrogation potential.

Freeze-induced sprinkler line failures occur when water inside a sprinkler system freezes. As this occurs, the water expands inside the line and can result in a fitting or a pipe cracking. In a wet line system, the water running through the line leaks into the building via the failure point. The same thing can even happen in a dry-line system, since a crack depressurizes the line and triggers the unnecessary flow of water. Regardless of the type of system, the result, inevitably, is a claim for water damage and the need to evaluate the potential for subrogation recovery.

As with other types of claims, it always is helpful to involve an expert as early as possible in the process. Although freeze-induced sprinkler failures typically are easy to identify, they sometimes can present in atypical fashions. Generally, a freeze-induced failure involves a broken pipe or failure in an area of a building that is subjected to cold temperatures. However, a freeze-induced failure also can present itself in heated areas.

For instance, if ice inside a sprinkler line is so thick that it completely blocks the line or creates what is referred to as an “ice plug,” the system can become over pressurized and cause a failure somewhere further down the line in a heated space. These types of freeze-induced failures are not always as easy to recognize. Additionally, the reported date of loss may be misleading. Sprinkler pipes may crack during the freezing temperatures, but the damage may not present itself until the first warm day after a cold stretch of weather because that is when the ice melts and allows water to leak. An experienced fire protection engineer will be able to identify freeze-induced failures and evaluate potential contributing factors other than the winter temperatures.

To assist with the cause investigation, the physical artifacts associated with the failure should be collected and preserved. This includes any pipe fitting fragments or other sprinkler components. The first responder to the site also should photographically document the valve room, pressure gauges, and inspection

tags for the sprinkler system prior to any repairs being made. Since sprinkler systems are considered life safety systems, most fire departments insist that the sprinkler system be put back into service as soon as possible. This does not always leave much time for a forensic examination. If possible, the portion of the line where the failure occurred should be isolated, capped, and left undisturbed while the rest of the system is put back into service. This will allow some additional time to inspect with the interested parties.

In addition to preserving the physical artifacts, some basic information should be gathered. For example, determine when the sprinkler system was installed and by whom. Find out if any work was done on or around the sprinkler system since it was installed. Ask the insured who performs service and maintenance for the sprinkler system, and make sure to differentiate between “service” and “maintenance.” Inspections and required testing may be performed by a vendor on a regular basis, but these tests typically do not include preventative maintenance. Thus, while most property owners contract for the performance of quarterly or annual tests referred to as “service,” there may not be a formal procedure in place for required “maintenance,” which might include the periodic draining of condensation from low points in a dry sprinkler system. To the extent outside vendors are involved, the contracts should be reviewed to ascertain the scope of the vendor’s work.

A thorough investigation of freeze related claims may identify failure modes involving human error that were simply brought to light by Mother Nature. For example, there may have been a failure to properly heat or insulate a sprinkler pipe during the original construction. In buildings that have been renovated, an addition or modification may have altered the flow of heat to an area that houses the sprinkler system, making the system more susceptible to freezes. Most jurisdictions have adopted the standards created by the National Fire Protection Association (NFPA) regarding the proper installation of sprinkler systems, including how to properly protect against freezes. The standards have changed slightly with the 2002 and 2013 revisions, but the benchmark for freeze protection continues to be 40 degrees Fahrenheit. In spaces that could be subject to temperatures below that number, additional steps must be taken to prevent freezing. This could include the installation of heaters in the attic spaces or physical padding placed around the pipes. Additionally, the NFPA standards provide the specifications for the proper slope of all pipes in a dry sprinkler system. Pipes that are not adequately sloped allow condensation to collect and freeze inside the line instead of draining to a dedicated low point. Construction not in compliance with the NFPA standards may support a claim alleging a design or construction defect despite the cold weather conditions.

Even if a sprinkler system appears to be designed and installed correctly, a subrogation claim still may be viable if the failure occurred on a dry sprinkler system that should not have contained any water. If a vendor fails to evacuate all the water following a full flow test, or if a property owner fails to drain condensation using the low point valves, there may be liability for creating a condition that allowed the freeze to occur. In these situations, “cold weather” is unlikely to be a valid defense.

When cold weather strikes, don’t assume Mother Nature is wholly to blame for freeze-induced sprinkler failures. Understanding the potential failure modes and key pieces of information will allow claims and subrogation professionals to quickly identify those cases with subrogation potential.

Jessica M. Skarin

A Senior Associate at Butler Weihmuller Katz Craig LLP in Tampa, FL. Jessica practices in our Subrogation & Recovery department.

September 20, 2017 PublicationFlorida Insurance Litigation (2017 Edition)

LexisNexis Practice Guide: Florida Insurance Litigation provides the practitioner with immediate access to knowledge and strategy on every aspect of insurance practice in Florida. The publication concisely presents the terms, conditions and exclusions that govern coverage offered against the risks under each line of insurance. This approach provides a comprehensive exploration of key concepts, policy language and insight for litigation of common and esoteric disputes under those policies. Each chapter also provides task-oriented checklists, examples, strategic points, and cross-references to governing statutory and case law.

Read More »
July 27, 2017 PublicationTRIAL ESSENTIALS: KEYS TO NOT LOSING YOUR JURY TRIAL BEFORE THE FIRST WITNESS IS CALLED

Sun-Tzu is a well-recognized and oft-quoted Chinese general, military strategist and philosopher. He is also credited as the author of The Art of War.1 While the title clearly identifies that book as having much to do with actual war, Sun-Tzu’s philosophy translates to many different fields of application. One such field of application is the preparation for and litigation involved with a jury trial. Most specifically applicable is the Sun-Tzu quote that “every battle is won or lost before it’s ever fought.” Before your jury trial even begins, the actions that most impact the results obtained are the preparation of the jury instructions, the preparation of the pretrial stipulation, the preparation of motions in limine, and the intricacies involved in the jury selection process.

Read More »
July 14, 2017 PublicationFlorida Water Loss Claims: What's Owed, And When?

Water loss lawsuits have spiked dramatically in Florida during the past few years. Insurers simply cannot resolve the unusually large differences in water damage estimates. Scope of estimated matching work usually explains the disparity. And litigation ensues over this hypothetical question: Can the water-damaged or tear out items be replaced and then matched to undamaged adjoining items; and if not, what is the proper scope of the matching work?
 

Read More »
June 27, 2017 PublicationButler Quarterly - Spring
Read More »
June 16, 2017 PublicationLiterature for Life

What does reading literature have to do with the mission of DRI for Life? Some might suggest reading that we read mostly as pleasurable respite or for entertainment. That certainly is true in the cases of, say, mystery stories or romance novels. But I say reading real literature is more, and more essential to life, than that.

Read More »
April 21, 2017 PublicationTort Trial & Insurance Practice Law Journal, Winter 2017

View Bill Lewis, John Garaffa, and Sarah Burke's newest contributions to the ABA's Tort Trial & Insurance Practice Law Journal. This comprehensive PDF explains recent developments in property insurance law.

Read More »
February 23, 2017 PublicationIs It Hot in Here? Significant Recovery Opportunities with Boiler Failures

Water boiler failures provide significant recovery opportunities. By understanding how these relatively simple systems work, one can realize that recovery potential and identify the probable failures modes, skillfully directing the recovery investigation, and asserting the proper legal theories that afford recovery.

Read More »
February 22, 2017 PublicationPennsylvania – VOIDED Terms and Conditions: Unlawful and Unconscionable Exculpatory Clauses

How many of your subrogation claims have been closed because of the subrogation killing terms and conditions of a contract? A recent decision in the Eastern District of Pennsylvania, United States District Court found in favor of a subrogating insurance carrier and held that the terms and conditions barring recovery were both unlawfully drafted and unconscionable, thus allowing the subrogating carrier to move forward with its subrogation claim. State Farm Fire & Cas. Co., a/s/o Sara Rivera v. Petroleum Heat & Power Co., Inc., 2016 WL 5816182 (E.D. Penn. October 5, 2016).

Read More »
February 06, 2017 PublicationThe Confession-of-Judgment Doctrine: No Good Deed Goes Unpunished

Virtually every jurisdiction in the United States has a statute on the books that provides for prevailing-party attorney fees in favor of insureds when they are successful in coverage suits against insurers.

Read More »
January 26, 2017 PublicationDamages Proof in Subrogation Cases

In the past few years, savvy defense lawyers have taken a more inquisitive approach on the valuation of subrogation damages across all lines of insurance. Gone are the days of assuming the damages must be right because no carrier wants to pay more than they should.

Read More »
January 03, 2017 PublicationIf you invade someone's privacy with a drone, your insurance might not cover it

Drones, also known as unmanned aerial vehicles or unmanned aerial systems, can be equipped with cameras, thermal scanners, license plate readers and facial-recognition software.

Read More »
November 21, 2016 PublicationBoom! Maximizing Recoveries in Catastrophic Explosions

An explosion is an extraordinary event that forever changes the psyche of those affected. The bigger the scale of the explosion, the bigger the challenges are to move forward and to develop viable recovery claims. It is a dilemma that requires sophisticated leadership and seasoned subrogation counsel, forensic consultants, and loss adjusters.

Read More »
October 18, 2016 PublicationFollow Up on Assignment of Benefits Litigation in Florida

In the summer of 2016, SLA published an article titled "Assignment of Benefit Litigation in Florida." The article was an introduction to the topic of assignments of benefits ("AOB") in Florida and how they are being used in insurance claims and litigation. Many readers asked for a follow up article that would provide some additional information and analysis on certain AOB topics. This article will spotlight four of those topics and give the reader some additional information and analysis on each of them.

Read More »
October 10, 2016 PublicationWho, What, When, and How Much? Key Questions to Ask When Faced With a Potential Sovereign Immunity Defense

With each new claim we navigate a myriad of potential obstacles to recovery.  As subrogation professionals, we work to quickly identity these issues and evaluate the best recovery strategy.  In doing so, some obstacles may first appear insurmountable, but later give way to the ever diligent subrogation professional.  One such obstacle is the concept of sovereign immunity.

Read More »
September 08, 2016 PublicationAdjuster Tools for Water Losses

Hmm, a water loss claim. Lots of those lately. She looked further and saw it was actually two claims. Two water loss claims within one week of each other. One, a loss in the bathroom when a pipe underneath the sink burst and the other was a kitchen loss from a broken p-trap.

Read More »
August 11, 2016 PublicationIn Hot Pursuit: Strategies for Pursuing Subrogation Against Wildfire Damages

Each year, wildland fires scorch millions of acres of brush and timber, damage tens of thousands of homes and commercial properties, cost federal and local governments billions of dollars in suppression efforts, and cost insurance companies hundreds of millions in property insurance proceeds.

Read More »
June 27, 2016 PublicationHistoric Hotel, Restaurant & Nightclub Fires Provide Common Threads for Developing Significant Subrogation Recoveries

Countless fires occur every year. They cause billions of dollars in property losses, and sometimes result in bodily injuries and deaths. Public assembly fires arising out of hotels, restaurants and nightclubs are prone to significant calamities, given the fire risks, types of use, occupancy, and human factors. While fires are frequently avoidable, the fires themselves would oft be smaller in scope “but for” the failures of fire suppression, detection and alarm systems; lack of effective containment; material flammability; and other failures. This article discusses the common thread of historic hotel, restaurant and nightclub fires—many of which are iconic.

Read More »
June 24, 2016 PublicationAssignment of Benefits Litigation in Florida

Over the past five years, first-party property insurers in Florida have been experiencing a wave of claims and lawsuits by contractors who obtain insurance rights from insureds through document called an assignment of benefits ("AOB"). This article is intended to introduce the reader to this topic and explain some of the challenges facing insurers in dealing with AOBs in Florida. The reader is welcome to contact the author to learn more.

Read More »
June 21, 2016 PublicationThe Inadequacies of the Diminution of Value Approach to Damages to Real Property in Tort Claims

Generally speaking, the purpose of tort damages is to make an injured party whole and restore the injured party, as nearly as reasonably possible, to the position in which he or she would have held absent the injury. When dealing with damages sustained to real property, most jurisdictions provide that the cost to repair the property is the proper measure of damage so long as the cost to repair does not exceed the diminution in value, which is the difference between the fair market value immediately before and immediately after the damages are sustained.

Read More »
June 08, 2016 PublicationBUTLER ON DRONES: A PRACTICAL GUIDE FOR INSURERS

As one of the nation’s most preeminent jurists put it, domestication of horses did not give rise to a “law of the horse,” and the rise of the Internet era did not give rise to a “law of cyberspace.”1 Likewise, the proliferation of drones will not give rise to a new area of law called “drone law.” What will happen instead is much more complex.

Read More »
March 07, 2016 PublicationGood Faith, Bad Faith: A Legal View

The purpose of Good Faith/Bad Faith is to serve as a compendium of general information insurers may wish to use as part of the development of their own individual claims-handling procedures; however, Good Faith/Bad Faith neither sets forth any particular practice or policy as a recommendation or best practice nor does it represent a compilation of widely followed procedures.

Read More »
September 28, 2015 PublicationKeep The Faith: Whether The Attorney-Client Privilege Applies In Third-Party Bad Faith Actions

One of the most rapidly developing issues in Florida and in courts around the country is whether the attorney-client privilege can be relied on by an insurer in a third-party bad faith action. The attorney-client privilege is one of the oldest confidential communication privileges in Florida.

Read More »
July 07, 2013 PublicationLow Liability vs. High Demand: Overcoming the Aggressive Plaintiff Attorney's Delusions of Grandeur for Policy Limits" Primerus Corporate Client e-Newsletter,

For a copy of the publication please contact Josh Golembe.

Read More »
July 01, 2013 PublicationCorporate Tort Liability under the Alien Tort Statute Post-Kiobel, 21 U. Miami Bus. L. Rev. 281

ATS cases.' The court entered into uncharted and controversial territory' though, as it attempted to deal with a claim made by a group of Nigerian plaintiffs who alleged that "Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations"' so as to promote their exploratory efforts.' In ultimately determining that corporate liability does not exist under the ATS,' the Second Circuit majority misconstrued its own precedent and that of other circuits, the Supreme Court's interpretation of the ATS in Sosa v. Alvarez-Machain,o the principles and goals of international law, scholarly commentary, and the earliest available interpretations of the ATS. The plaintiffs sought review in the Supreme Court of the United States.

Read More »
January 01, 2010 Publication"Alien Smuggling: Do Not Be an Alien to the Law!" Florida Defender, Volume 23, No. 3, Fall 2010

For a copy of the publication please contact Josh Golembe.

Read More »
September 01, 2006 PublicationMost Favored Nation Clauses – "The Ultimate Double Edged Sword"

Until a few years ago, the term “Most Favored Nation” was a phrase restricted primarily to the world of international trade. However, with the upsurge in both class action and mass tort lawsuits, Most Favored Nation clauses (MFN), are increasingly used as a tool to encourage settlement.

Read More »
March 29, 2004 PublicationDanger Zone: Planning Ahead To Avoid Legal Malpractice

Claims for legal malpractice are exploding. Malpractice insurance is getting more difficult to obtain, and when you can find a carrier, rates are, in some cases, prohibitive. Claims of legal malpractice have no bounds: they cut across many different practice areas. Real estate, transactional lawyers, trial lawyers, general practitioners – all have been (and will continue to be) targets for legal malpractice actions.

Read More »
November 01, 2002 PublicationThe Contagion of Example: Attacking the Root of the Problem in Lawyer Professionalism

Now is the time to stop talking and start acting! In the legal professionalism debate, many scholars hope, through their own unique contributions, to spark some universal epiphany that will initiate pervasive change. But a workable solution remains amorphous; the context of the problem is in constant flux and scholars feel the need to continually approach it in a “modernized” framework. Admittedly, unique perspective is an important tool for learning the intricacies of any problem, but incessantly approaching an old problem with fresh insight becomes tiresome and counterproductive . . . especially when there is no evidence of change. If we continue to merely discuss professionalism, then we will remain mired in tautology disguised as intellectual insight.

Read More »
PublicationThe Future of Defending Lawsuits: E-Business Enters the Civil Litigation Arena

What do FedEx, Northern Trust Bank, Ford Motor Co. and ACE USA have in common? Each is turning to a new browser technology, the Extranet, to advance their business through the use of electronic communication. The primary tool that will be used for the efficient and cost­effective transmission of all information associated with the handling of claims in the future (the future is now) is an Extranet. Extranets have been driven to the forefront of attention in and surely qualify as one of the Internet buzzwords du jour.

If the use of an Extranet, however, does not save time and expense in the defense of civil litigation while at the same time improving the quality of the legal representation provided, it should not be considered as a "tool" whose time has come.

Read More »
July 12, 2017 PublicationState Specific: Tennessee Addresses Production of Underwriting Files, Similar Claim Materials and Reserves in First Horizon National Corporation v. Houston Casualty Company, et al.

As a result of the coverage denial, First Horizon sued its insurers. This article will address a few of the discovery disputes that arose in the coverage case and how they might be relevant to issues that might arise in litigation of a subrogation claim.

Read More »
February 23, 2017 PublicationIs It Hot in Here? Significant Recovery Opportunities with Boiler Failures

Water boiler failures provide significant recovery opportunities. By understanding how these relatively simple systems work, one can realize that recovery potential and identify the probable failures modes, skillfully directing the recovery investigation, and asserting the proper legal theories that afford recovery.

Read More »
February 22, 2017 PublicationPennsylvania – VOIDED Terms and Conditions: Unlawful and Unconscionable Exculpatory Clauses

How many of your subrogation claims have been closed because of the subrogation killing terms and conditions of a contract? A recent decision in the Eastern District of Pennsylvania, United States District Court found in favor of a subrogating insurance carrier and held that the terms and conditions barring recovery were both unlawfully drafted and unconscionable, thus allowing the subrogating carrier to move forward with its subrogation claim. State Farm Fire & Cas. Co., a/s/o Sara Rivera v. Petroleum Heat & Power Co., Inc., 2016 WL 5816182 (E.D. Penn. October 5, 2016).

Read More »
January 26, 2017 PublicationDamages Proof in Subrogation Cases

In the past few years, savvy defense lawyers have taken a more inquisitive approach on the valuation of subrogation damages across all lines of insurance. Gone are the days of assuming the damages must be right because no carrier wants to pay more than they should.

Read More »
October 13, 2015 Publication(Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films About Civil Litigation

Dean S. Rauchwerger, Geoffrey M. Waguespack, and Jonathan M. Levy of Butler’s Chicago office authored (Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films about Civil Litigation, published in NASP’s Subrogator, Fall 2015. The article cleverly explores issues of legal ethics that arise in modern movies involving civil litigation, set in the style as written by movie critics.

Read More »
October 13, 2015 PublicationWhen is the Contract Complete? Court Rules that Statue of Repose Commences Upon Final Payment.

Recently, Florida’s Fifth District Court of Appeal reviewed the statute of repose relative to improvements to real property.

Read More »
May 05, 2015 PublicationProduct Liability Blackjack (21) Ways to Win, Bust or Fold!

Strategic thinking in prosecuting or defending product liability actions often mirrors the creativity, gut-check and fortitude to play the winning blackjack hand. As in blackjack, in the litigation game, it is often not how you start but how you finish that decides the winner. Though the cards often favor the house or your adversary, playing your cards to their maximum potential yet recognizing when it is necessary to fold, is vital to smartly beating the odds. Below is a practical checklist of 21 ways to win, bust or fold in your product liability game.

Read More »
April 01, 2014 Publication"How to Succeed at Subrogation (...but you do have to try!)"

Success in Subrogation can be measured in many ways, and depends greatly on what type of business is at issue for the underlying recovery claim.  There can be different strategies for each type of subrogation claim (Property is different from Health Care which is different from Workers Comp which is different from Auto) but there are some universals, and we will try to discuss those here.

Read More »
April 01, 2014 Publication"Texas Damages"

In Property Subrogation, one of the most difficult damages situationsto deal with is a commercial loss where older equipment is destroyed and that equipment is integral to the operation of a facility.  Oftentimes, the business decision is made to replace used equipment (which may not have a fair market value in the marketplace) with new equipment, to minimize the downtime and the associated business income loss.  A recent Texas case may give property subrogators some ammunition to contest how those pieces of equipment get valued for recovery purposes.

Read More »
December 01, 2013 PublicationProving Lost Profits In a Subrogation Case: It's No Easy Matter

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Winter, 2013. © Copyright 2013 by NASP. All rights reserved. Republished by Butler with permission from NASP.

As subrogation professionals, it is sometimes easy to overly focus on the liability issues in each case, leaving a thorough damages analysis for another day. However, it is a better practice to perform a complete evaluation of the legally recoverable damages early during the subrogation investigation, so that the true value of the claim can be ascertained and relayed to the subrogating insurer. This is especially so in cases where the business interruption portion of the loss is significant, since an error in proper quantification of the recoverable portion of the business interruption loss could dramatically change the overall valuation of a case -- both for settlement and trial purposes.

Read More »
April 01, 2012 PublicationMade-Whole Interpretations Leave Insurers Feeling Empty

There is a growing trend among state courts to interpret the made-whole doctrine in ways that have the potential to make it very difficult for insurers to effectively exercise their subrogation rights.  In recent years, state courts’ decisions have increasingly created hurdles for insurers to overcome before they are able to actively pursue recovery for payments made to their insured.  These requirements could have a potentially chilling effect on the field of insurance subrogation.

Read More »
April 01, 2012 PublicationWhat Nearly Two Decades as a Subrogation Attorney Has Taught Me about Product Safety

The other day when I was asked to write an article about "product safety" I pondered how to best approach this.  As we all know, what is or is not a "safe product" is often in the eye of the beholder (or which side of the "v" you are on!).  Is any product that fails even once an "unsafe product?"  If 1,000,000 items have been manufactured and "only" 73 of them have failed, is that an "unsafe product?"  What about 133 of them?  If a product fails when it was being used improperly, but it was not a stretch for the manufacturer to have anticipated this "alleged misuse", is that an "unsafe product?"  If a product has been tested by agencies and groups with an international reputation for such testing, and the product has passed, can that product be an "unsafe product?" 

Read More »
February 14, 2012 Publication"Freedom to Contract" Gives Rise to Big Recovery Opportunities from Policyholders for Self-Insured Retentions, Deductible Reimbursements, Retrospective Premiums and Loss Adjustment Expenses

Insurance policies often include language that allows insurers to recover amounts they have advanced for the insured's benefit. For instance, if the insured's policy has a SIR, the policy may contain a provision similar to the following:

We shall have the right but no obligation, in all cases,  to assume charge of the defens and/or settlement of any claim, and, upon our written request, you shall tender such portion of the SIR as we may deem necessary to complete the settlement of such claim.
Read More »
October 29, 2009 PublicationThe Daubert Tango: "Recent Developments In Fire and Explosion Litigation"

In 1923, the Court of Appeals for the District of Columbia, affirming the exclusion of an expert witness at trial, stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Read More »
October 07, 2008 PublicationLanding the Knockout Punch: Contacting Another Party's Current And Former Employees Within the Ropes

Winning litigation requires that you and your counsel land the devastating uppercuts at the key moments in the fight. Big opportunities for critical testimony and evidence exist by pursuing permissible ex parte contacts with another party's current and former employees. The ethical ropes and practical tips for effectively contacting and interviewing such witnesses are discussed below.

Read More »
December 03, 2007 PublicationDrowning in Black Water: Water Restoration Contractors' Deviations from Industry Good Practices & Standards of Care Trigger Potential Mold Liabilities

Entry of errant water into a building or other structure can lead to serious mold problems, physical damages and substantial property and business interruption losses. This  article provides a roadmap on developing viable recovery claims against restorative drying contractors who were involved in improper and careless restoration and remediation of water  damaged property. As in any garden-variety tort claim, it is imperative that your counsel appreciate the critical importance of identifying the target contractor's vulnerable liability exposures.

Read More »
December 05, 2006 PublicationUnderwriters Laboratories—The Forgotten Island In The Litigation Seas—"Full Of Fruit"—For Bolstering Or Undercutting Product Integrity

Underwriters Laboratories Inc. ("UL") is a nonprofit organization conducting product safety evaluations. UL Marks are on 19 billion products ( www.ul.com ). As of 2005, there are more than 71,000 manufacturers producing UL-certified products and 97 countries where UL customers are located. UL publishes hundreds of safety standards and disseminates safety information globally.

Read More »
August 01, 2006 PublicationThe Big Daubert Hurdles in Fire & Explosion Litigation

Over a decade has passed since the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), and it is time to evaluate where we've been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.

Read More »
June 05, 2006 PublicationA Product Supplier's Liability Exposure for Noncompliance With its Obligation Under the Consumer Product Safety Act and Related alternative Statutory Authorities

Manufacturers, importers, distributors and retailers have the obligation to place only those products that are safe for use into the stream of commerce. In addition to those obvious duties, these entities also face significant duties under the Consumer Product Safety Act (CPSA) ' and other legislation and regulations enforced by the Consumer Product Safety Commission (CPSC).

Read More »
May 09, 2006 Publication"Top-Dog" Depositions The Hurdles to Overcome

High-level executives are frequently sought to be deposed because of their unique corporate roles for, inter alia, policy making, corporate governance and implementing policy compliance and corrective actions. On a tactical basis, the executive deposition is pursued so that your adversary's "figurehead" directly feels the "hot buttons" of your case, real-time, without layers of filtering and spin. "Top-dog" depositions, commonly called "apex depositions," cover a wide range of executives, including CEOs, presidents and other senior management positions.

Read More »
May 09, 2006 PublicationTaking A Closer Look For Deep Pockets

A CORPORATION is a legal entity created by filing certain documents with the state. It offers many benefits that are found in other entities, such as limited liability, centralized management, transferability of ownership, continuity, and taxation. On the other hand, some of these benefits pose problems for securing legal liability when the corporation is used as a shield to avoid liability or to perpetuate a fraud. In these cases, a victim may be left without any avenue of relief. Fortunately, all hope is not lost!

Read More »
May 01, 2006 PublicationAlternative Ways To Use Evidence Of "Other Conduct" That Would Otherwise Not Be Admitted

In developing your case, as plaintiff or defendant, it is important to appreciate the various alternative ways for opening the door to "other conduct" evidence to prove relevant facts at issue. Below is a synopsis of strategic methods and insights for proffering evidence of character for a non-propensity purpose, habit, subsequent remedial measures and prior occurrences/failures.

Read More »
January 03, 2006 PublicationGetting the Winning Edge: Appreciating the Permissible Boundaries, in Qui Tam and Other Litigation Contexts, for Contactiong Your Adversary's Current & Former Employees

To say the least, litigation is frequently competitive, hard-fought and fraught with many hurdles. Developing a winning case requires that you seek the edge at every step in the journey. Big opportunities for marshalling critical testimony and evidence exist by pursuing permissible ex parte contacts with your adversary's current and former employees. Below is a general discussion of the ethical boundaries and practical tips for effectively contacting and interviewing such witnesses

Read More »
October 05, 2005 PublicationCourageous Whistleblowers are not "Left Out In The Cold": Legitimate Justifications Exist for Collecting Evidence of False Claims Act Violations

It is the courage of whistleblowers, standing up in the face of great adversity and overwhelming pressure to "look the other way;' that enables the False Claims Act ("FCA") to fulfill its primary purpose of combating fraud on the U.S. Treasury. By marshalling evidence and collecting company documents, the whistleblower provides the necessary proof to shed light on fraudulent and illegal FCA activities.

Read More »
May 03, 2005 PublicationHow "What We Learned in Little League" Paves the Way for Winning Litigation!"

As in baseball, whether being the batter, pitcher, or outfielder, successful litigation requires a strong belief and conviction that one has the power to shape reality. Certainly, without the batter's confidence that he or she will hit the ball, irrespective of its speed, twists or turns, few home runs would be made, let alone "singles or doubles"

Read More »
April 01, 2005 PublicationLive . . . From The House Of Subrogation!

 The Hilton Hotel in Austin, Texas will truly be "The House of Subrogation" from November 13 through 16, when over 1,200 subrogation professionals from around the globe assemble for the NASP Annual Conference. And this year's conference is expected to be even bigger, better and more alive than ever before!

Read More »
January 06, 2004 PublicationGoing Toe-to-Toe With Your Opposing Expert

Experts oftentimes make or break cases.  As knowledge and science have grown, so has the range of experts that parties call upon to advocate their cause.  Not only must a party always look to bolster one's own expert case, a party must simultaneously be mindful of the need to undercut your adversary's expert.  As the client, you want to ensure that your assigned counsel appreciates the following practical ways for tackling the opposing expert during the discovery process

Read More »
PublicationUnraveling The Complexities Of Contractual Disputes

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationDeveloping A Claim Of Successor Liability—A Practical Guide To Recovery When Your Primary Target Defendant Has No Seizable Assets

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationProtective Orders- Not Everything Can Be Swept Under The Rug!

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationSix Critical Steps For Achieving A Successful Mediation

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationAll Is Not Lost Simply Because A Target Defendant Has No Assets—Pull Out The Magnifier And Investigate The Corporate Connections Of Your Target For Alternative Deep Pockets!

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationContracting Outside The Four Corners Of The United States—A Closer Look At The United Nations Convention On Contracts For The International Sales Of Goods

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationThe Top 100 Ways To Build A Winning Recovery Case: Effective Claims Management Of Subrogation Cases

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationMCS90 Endorsements Provide Significant Subrogation Recovery Opportunities

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationSubrogating The Spill: What Are An Insurer's Options For Recovering Claims Paid As A Result Of The Gulf Oil Spill?

If you would like to discuss this topic further, please contact Dean Rauchwerger at drauchwerger@butler.legal  or directly (312) 462-9147

Read More »
PublicationSignificant Recovery Opportunities Where An Insured Breaches Its Reimbursement Policy Obligations For Advanced Deductible, Self-Insured

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationBig Daubert Hurdles In Fire & Explosion Litigation—Revisiting The Importance Of Testing An Expert's Theories

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationMass Confusion in Transactional Business: Boilerplate Forms and Competing Contractual Terms Often Lead to a "Battle of the Forms"—Practical Considerations for Minimizing Litigation

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationUnited States' Liability For Negligent Disaster Response Under The Federal Tort Claims Act

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationUndue Delay In Pursuing Subrogation May Result In Missing The Recovery Boat

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationFederal Tort Claims Act: Pursuing Uncle Sam's Deep Pockets By Unlocking The Right Doors

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationRailroad Subrogation And Third Party Recoveries—"Getting Back On Track"

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
PublicationWhen Businesses Compete Fiercely, Crossing Certain Boundaries May Give Rise To Tortious Interference Claims

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

Read More »
Key Points
Author Additional Authors
  • Kathleen Brown
Practice Area CASE TYPE
  • Subrogation
Article Link »