Published Decisions

Fires, Explosions, Catastrophic Losses

Vigilant Ins. v. Sunbeam Corp.

231 F.R.D. 582 (Dist. Ariz. 2005).

$2.33 million jury verdict, plus $225,000 additional prejudgment interest settlement on appeal, for consumer appliance fire.  Burn tests by defendant’s expert disallowed because not substantially similar to fire.  Fire investigator’s testimony regarding burn patterns found to be properly within scope of ruling in Daubert hearing.  Fire and property insurer’s failure to preserve damaged contents did not amount to spoliation of evidence.  Fire and property insurer’s paid claim for cost of repairs not liquidated, for purposes of awarding prejudgment interest, until after jury returned verdict in favor of insurer.   

Continental Paper & Supply Co. v. City of Detroit

451 Mich. 162, 545 N.W.2d 657 (1996).

A $2.9 million jury verdict on property damage for a fire which communicated from an abandoned building scheduled for demolition by the City of Detroit to a paper distribution warehouse. Three firemen died battling the blaze.  Trial court verdict against City, affirmed on appeal, reversed by Supreme Court of Michigan:  city’s condemnation and demolition notice did not amount to exercise of absolute control for purposes of trespass-nuisance exception to governmental immunity. 

Admiralty, Maritime & Transportation

In re: American Milling Co., Ltd.

409 F.3d 1005, 2005 AMC 1217 (8th Cir. 2005).

Tow boat allided with pier of the Eads Bridge in St. Louis Harbor and a moored gambling vessel resulting in personal injury, business interruption and property claims in excess of $6 million.  U.S, Court of Appeals held: 

  • manager did not exercise sufficient control or dominion over vessel to be considered owner pro hac vice;
  • finding that allision was caused by towboat pilot's spontaneous navigational error was not clearly erroneous;
  • finding that owner was not in privity with captain at time of allision was not clearly erroneous;
  • finding that owner of moored gaming vessel was partly at fault for damages arising from allision was not clearly erroneous;  and
  • finding that fair market value of towboat was $2.2 million was not clearly erroneous.
Folkstone Maritime v. CSX Corp.

64 F.3d 1037, 134 A.L.R. Fed. 761, 1995 AMC 2705 (7th Cir. 1995).

 

Railroad bridge collapsed after being struck by a foreign-flagged ocean freighter.  Court of Appeals found Oregon Rule presumption of fault against moving vessel that allides with stationary object may not apply to drawbridge.  Application of Pennsylvania Rule affirmed:  District court did not clearly err in finding that bridge was improperly elevated to 67 degrees on day of accident and that improper elevation was sole and proximate cause of allision. 

Design & Construction

Father & Sons v. Taylor

301 Ill.App.3d 448, 703 N.E.2d 532, 234 Ill. Dec. 671 (Ill. App. 1st Dist. 1998).

Contractor filed petition to vacate arbitration award made in favor of homeowners arising out of a remodeling contract. The Appellate Court held that: (1) homeowners' counterclaim against contractor was not time-barred; (2) counterclaim was properly transferred from trial court to arbitration; (3) arbitrator did not exceed his authority in finding that contractor violated Consumer Fraud Act and awarding attorney fees to homeowners; (4) contractor failed to show that arbitrator improperly barred its agent from arbitration proceeding; and (5) portion of arbitration award declaring all mechanic liens filed against homeowners' property null and void was valid.

Ball Corp. v. Bohlin Bldg. Corp.

187 Ill.App.3d 175, 543 N.E.2d 106, 134 Ill. Dec. 823 (Ill App. 1st Dist. 1989).

 

Property owner brought action against roofing subcontractor when roof blew off in windstorm.   Property owner was merely incidental beneficiary of general contractor-roofing subcontractor contract, not third-party beneficiary, and thus could not recover for subcontractor's breach.

Product Liability

Gabrenas v. R.D. Werner Co.

116 Ill.App.3d 276, 451 N.E.2d 1307, 71 Ill. Dec. 940 (Ill App. 1983).

Products liability suit brought by workman against manufacturer of ladder, in which workman alleged that stabilizer of ladder failed while in an upright position, and in which manufacturer argued that stabilizer failed only as result of striking ground after workman had fallen.

 

Statement of workman's rebuttal witness, to the effect that cause of the accident was failure of stabilizer arm resulting from a bend in the stabilizer arm, did not exceed the permissible scope of rebuttal and did not present a new theory of liability, because testimony of rebuttal witness was, at most, a variance on theme of workman's case-in-chief witness who stated that cause of failure of stabilizer arm was a fracture of the arm.

Commercial Disputes

Chem-Pac, Inc. v. Simborg

145 Ill.App.3d 520, 495 N.E.2d 1124, 99 Ill. Dec. 389 (Ill App. 1st Dist. 1986).

Commercial tenant prevailed against building owners for damages sustained in fire.  As owners of record, landlords could not delegate their duty to maintain building to lessee who had no contractual or common-law duty to maintain building.

 

Commercial tenant, whose loss from fire in leased building was not completely covered by insurance, was not made whole and, thus, was proper party plaintiff in action against building owners to recover damages sustained in fire.

J.B. Stein & Co. v. Sandberg

95 Ill. App.3d 19, 419 N.E.2d 652, 50 Ill. Dec. 544 (Ill. App. 2d Dist. 1981).

Exculpatory clause in commercial lease unambiguously exempted landlord from liability for any part of the building, equipment, or appurtenance which became out of repair or for any acts of landlord's servants or other persons, including damage resulting from faulty electrical systems; implied warranty of habitability established in Jack Spring decision did not extend to commercial leases.

Insurance

Liberty Ins. Underwriters, Inc. v. The Weitz Company, LLC

215 Ariz. 80, 158 P.3d 209 (Ariz. Ct. App. 2007).

Landmark appellate decision construing Builders' Risk coverage on an inland marine form in a multimillion dollar first party dispute involving Arizona State University, General Contractor and multiple subcontractors.  Builder's risk insurer brought action against insured and subcontractors for a declaratory judgment that insured breached warranty endorsements on fire protection. Insured and subcontractors counterclaimed alleging that the warranties were void as inconsistent with standard fire policy. The trial court entered judgment in favor of defendant insureds. 

 

The Arizona Court of Appeals held as a matter of first impression that Builder's risk policy provided “inland marine insurance,” and, thus, requirements of standard fire policy did not apply to void warranty endorsements on fire protection during construction; coverage ceased when owner accepted the building, the standard fire policy presumed occupancy of the building, and the policy was attached to general terms and conditions for inland marine insurance. 

Sovereign Chem. & Petroleum Prods., Inc. v. Ameropan Oil Corp.

148 F.R.D. 208, 1995 AMC 2705 (7th Cir. 1995).

Owner of stored goods prevailed where supplier provided incorrect grade of fuel oil for boiler. 

  • Sudden water leak from frozen pipes that had ruptured was not mere economic loss for which property owner could not recover in tort action against fuel oil seller who had delivered wrong grade of fuel. 
  • Subrogated insurer which had partially reimbursed insured was not indispensable party to insured’s action against tortfeasor, and thus would not be joined as a plaintiff, where joinder would destroy court’s diversity jurisdiction.  Insurer had ratified action brought by insured, and thus was bound by any adverse decision against insured. 
Eddington v. Touchy

793 S.W.2d 335 (Tex. Ct. App. 1990).

Insurer's investigative file for claim filed by insured's employee did not fall within party communications discovery exception with respect to action brought by employee's attorney against insurer alleging tortious interference with his contingency contract with employee on basis that insurer had concealed from employee true value of claim and had wrongfully circumvented attorney's assigned contractual interest in recovery receipt by employee;  therefore, trial court abused its discretion in denying attorney's request for production of file.

Catalano v. Aetna Casualty & Surety Co.

105 Ill. App.3d 195, 434 N.E.2d 31, 61 Ill.Dec.94 (Ill App. 2d Dist. 1981).

 

Where separate lawsuits by husband and wife against same insurance defendants appeared to constitute multiple litigation, trial court did not abuse its discretion by granting dismissal of husband's suit sought by defendants on ground that there was another action pending between same parties for same cause, rather than consolidating lawsuits. 

Bankruptcy

In Re Lenke

249 B.R. 1 (Bankr. Ariz. 2000).

Debtor sought to enforce the discharge injunction entered in his bankruptcy thereby enjoining his criminal prosecution for theft, which he alleged was essentially a disguised effort to collect a debt discharged in his bankruptcy.  The bankruptcy court held:

  • that the debtor’s suit for an injunction against the county prosecutor’s office could proceed, as it did not violate the State of Arizona’s Eleventh Amendment immunity;
  • a bankruptcy court has the power to enjoin the county prosecutor if the criminal prosecution violates the bankruptcy discharge injunction by directly threatening to enforce payment of a discharged debt
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