Disciplined in Sophisticated Defense and Insurance Litigation

August 29, 2017 | Blog Post| The Common Interest Doctrine: Maintaining Confidentiality

While confidentiality is usually destroyed when communications between an attorney and client take place in the presence of a third party or when work product is shared with others, those communications can remain protected if the common interest doctrine applies.

Often referred to as the “common interest,” “joint defense,” or “pooled information” doctrine, these exceptions enable litigants who share unified interests to exchange privileged information to prepare their cases without losing the protection afforded by the privilege. Under this exception, clients and their attorneys sharing common litigation interests may exchange information among themselves without fear that by their exchange they will forfeit the protection of the privilege.

Some key questions as to whether the common interest doctrine applies are whether: 1) The parties share a common interest, 2) The disclosing party had a reasonable expectation of confidentiality, and 3) The disclosure is reasonably necessary. 

Courts in many jurisdictions have recognized the common interest exception where the group members included criminal co-defendants, civil co-defendants, companies that had individually been summoned before a grand jury, co-parties to potential litigation, members of a class of plaintiffs pursuing separate litigation in state and federal courts, and defendants being sued in separate actions.  

While jurisdictions differ in the label they give to the general idea that represents the common interest doctrine, most recognize such exceptions. You should check your jurisdiction’s particular rules and nuances regarding the exceptions, and you should also act early to get an agreement in place, in order to ensure the protection of communications.

Jason O. Lowe

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

July 09, 2019 Blog PostSUBRO IN SECONDS | VLOG 3

The trucking industry has experienced considerable growth in recent years.  Trucking and transportation needs are expected to continue for the foreseeable future and this may lead to an increase in the volume of damaged cargo claims...

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July 08, 2019 Blog PostAmazon is subject to liability as "Seller," rules the Third Circuit

The Third Circuit issued a groundbreaking opinion in Oberdorf v. Amazon.Com, 2019 WL 2849153, that may have a significant impact on the way Amazon conducts business. For the first time, a U.S. Court of Appeals has found Amazon is a “Seller” and therefore potentially liable for defective products purchased on its website. The Third Circuit diverged from the Fourth and Sixth Circuits which has previously found Amazon should not be subjected to liability...

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May 30, 2019 Blog PostShould Amazon be Liable for Products Sold in its Marketplace?

Amazon, the largest e-commerce website in the world and a member of the “Big Four” has repeatedly, and successfully, argued that the company is not liable for harm caused by the defective products that are sold by third parties on its website. Most recently, Amazon avoided potential liability arising from a house fire caused by a defective headlamp...

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May 08, 2019 Blog PostSUBRO IN SECONDS | VLOG 2

In the landlord/tenant context, the question of who is an insured under the applicable policy may not always be clear. Watch as Subrogation Partner Aaron Jacobs revisits subrogation in the landlord/tenant context on this episode of Subro in Seconds...

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April 29, 2019 Blog PostKNOW YOUR LEASE: FLORIDA'S 3RD DISTRICT REVISITS SUBROGATION IN THE CONTEXT OF LANDLORD/TENANT LEASES

Historically, a tenant who pays towards its landlord’s insurance premiums, pursuant to the terms of the lease, is generally considered a “co-insured” under the landlord’s policy.  See Lumber Mutual Insurance Co. v. Zoltek Corp., 647 N.E.2d 395 (Mass. 1995). However, a Florida court recently reviewed a lease with such a provision and came to an opposite conclusion.  Zurich American Insurance Company v. Puccini, LLC, 2019 WL 454222 (Fla. 3d DCA February 4, 2019).

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April 17, 2019 Blog PostNotre Dame and Handling Tragic Losses

Imagine you just received an email, subject line “New Assignment – April 15 2019 loss – Paris France.” You open the email and learn that you will be assisting in the rebuilding of Notre Dame.

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February 28, 2019 Blog PostSubro in Seconds | Vlog 1

Aaron Jacobs recaps the latest in the world of Subrogation. In this episode, he discusses a recent Pennsylvania case decision that highlights difficulties associated with identifying liable parties in pipe freeze cases...

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February 18, 2019 Blog PostDiversity For Jurisdictional Purposes In Federal Litigation

Recently, I was speaking with a client, and we were discussing some of the unique issues subrogation professionals face on a regular basis. He stated that one of the things that new recovery adjusters are rarely familiar with is the concept of “diversity” for jurisdictional purposes in federal court litigation.

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January 25, 2019 Blog PostIntroducing the New Florida Supreme Court (from an Insurance Perspective)

Ron DeSantis, the newly sworn Governor of the State of Florida, was given a unique opportunity to remake the Florida Supreme Court within his first days of office.  Three of the seven justices of the Florida Supreme Court were forced to step down in the first days of January 2019 due to mandatory retirement.  Those justices were Barbara Pariente, Peggy Quince, and Fred Lewis.

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November 09, 2017 Blog PostDon't Wreck Your Carmack Claim: Requirements for the Written Notice of Claim

Carmack claims are unique animals.  Carmack provides a shipper—or its subrogating insurance company—with the sole remedy for damages sustained when goods are shipped between states.  As the sole remedy, it’s imperative that a claimant strictly comply with Carmack’s notice of claim requirements and any additional notice requirements outlined in the bill of lading.  As subrogation professionals, when a cargo claim comes in, the bill of lading should be the first document reviewed to determine what needs to be done—in addition to the five items listed below—to provide proper notice of the claim to the carrier.  Failure to file proper written notice will bar the claim. 

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September 25, 2017 Blog PostA Primer on Florida's "25 Percent Rule" for Roof Repair/Replacement

The 2014 Florida Existing Building Code (the “Code”) contains what is conventionally called the “25 percent rule” (the “Rule”). The Rule applies to roof repair of any commercial or residential building.  In a nutshell, the Rule states that if more than 25 percent of a roof or section of a roof is “repaired, replaced, or recovered” then the “entire roofing system” or “roof section” must be brought up to code.  Obviously, the Rule is of extreme importance for Florida Irma property claims. Here is the text of the Rule:

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September 21, 2017 Blog PostThe Rule of Sevens: Evaluating Claims Involving a Child

As subrogation professionals, we may be tasked with evaluating property loss claims where a child caused or contributed to the property damage.  For example, is a child playing with matches or a lighter liable for a fire loss?  Or, is a child liable for driving a vehicle into the neighbor’s home? In some instances, a parent may be held liable for the child’s acts.   As more fully set forth below, when evaluating a claim involving a child, it is important to evaluate the age and capacity of the at-fault party, and to be familiar with state specific statutes regarding parental liability. 

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September 01, 2017 Blog PostHurricane Hindsight is 20/20

It took years of depositions and other discovery to realize that that most of my 2004-2005 hurricane condominium association claims were much simpler to defend than I thought.   The center of gravity of these claims was the proper calculation of Actual Cash Value (ACV).

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August 23, 2017 Blog Post"It's Not Old, It's A Classic!": Risk in Aging Aircraft with GARA Protecting Manufacturers

The General Aviation Revitalization Act of 1994 (“GARA”) was a byproduct of aging aircraft, rising costs, and tort liability in the United States.  Congress was concerned that aircraft manufacturers were being devastated by liability costs for accidents occurring long after the planes left the manufacturer.  These liability costs drove up the price for aircraft beyond what the market would bear, and general aviation experienced a sharp decline.  The General Aviation Manufacturers Association reports the total U.S.-manufactured general aviation airplane shipments went from a high of 17,811 in 1978 to a low of 929 in 1994.  As a result many manufacturers stopped making certain model aircraft, including Cessna which ceased production of all piston aircraft in 1986. 

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August 15, 2017 Blog PostThe ABC's of ACV in Subrogation Claims

Oftentimes, during the course of a subrogation claim, third-party liability adjusters will refuse to pay the full amount of the “Repair Cost Value” (“RCV”) of the damages demanded, and contend that they only owe “Actual Cash Value” (“ACV”), regardless of the amount paid in the underlying first party property claim adjustment.   Oftentimes, this position is not necessarily predicated on a specific legal doctrine or theory, but rather a general “understanding” that is commonly used in the insurance context.   The true measure of damages, in the legal context, is always dictated by state law. 

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July 18, 2017 Blog PostSubrogation Following a Hurricane is All Hands on Deck

Hurricane season began June 1 st, and runs through November 30th.   However, we are about 30 days from approaching the peak of hurricane season, when the season becomes its most active.  Weather predictors are predicting an above-average number of storms this year, with 14 expected named storms.  As anyone who has worked “CAT” claims knows, when a hurricane hits, it’s “all hands on deck.”  This is true for subrogation professionals, as well.  There is a significant increase in the number of claims that must be triaged, with a goal of finding any claims that might have subrogation potential. 

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November 16, 2015 Blog PostWest Virginia Supreme Court Allows Landlord's Subrogation against Tenant

The West Virginia Supreme Court of Appeals recently opened the door further for a landlord’s insurer subrogating against a tenant for damages to the landlord’s property.

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October 13, 2014 Blog PostIs Texas Following Florida's Lead On Changing The Economic Loss Rule?

Practicing in both Florida and Texas I have seen the Economic Loss Rule evolve over the years, and its direct impact on the recovery potential for our subrogation claims appears to be moving in a positive direction. Recently, the Texas Supreme Court held in a per curium opinion in Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 2014 WL 4116839 (Tex. Aug. 22, 2014), that a claimant can now bring a tort claim (negligence, in this case) against a party, as well as a breach of contract claim. In doing so, the Court applied ...

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