After nine successful years, Bowitch & Coffey is closing its doors. Starting August 1, 2021, Gary Bowitch and Dan Coffey will be practicing law in their own law firms and will continue to provide clients with the same high quality legal services in their areas of expertise. Their new contact information is:
Gary S. Bowitch
Attorney at Law
13 Willow Street
Castleton, NY 12033
Phone: 518-527-2232
Email: gbowitch@bowitchlaw.com
Bowitch Law New Website
Daniel Coffey
Coffey Law PLLC
17 Elk Street
Albany, NY 12207
Phone: 518-813-9500
Email: Dan@coffeylawny.com
Coffey Law New Website
Federal Judge Finds No Spoliation, Denies Daubert Challenge in Nutone Fan Case
Plaintiff (subrogating insurer) alleges that a fire occurred at the restroom of a gas station-convenience store in East Berne, New York due to a defect in a Nutone ceiling vent fan. An eyewitness saw flames coming from the fan. Plaintiff disclosed a fire origin and cause expert and an electrical expert, who concluded the fan motor had both a manufacturing and a design defect. Plaintiff put Nutone on notice shortly after the fire and gave them an opportunity to view the scene during a joint evidence exam. Plaintiff preserved the fan and other material from the bathroom, and defendant’s fire investigator made no request to preserve additional material from the scene.
Defendant May Counterclaim in a Subrogation Action
Insured Mehalick ran a restaurant called “Ranier’s Gourmet” in South Glens Falls, New York. He leased the property from Michael Beshara. In February 2004, water pipes froze and broke, causing property damage to the restaurant to the tune of $150,000. Mehalick’s carrier, Peerless Insurance paid the restaurant’s claim and subrogated against the landlord, Beshara. In support of its subrogation claim Peerless pointed to lease language that required Beshara to make sure the heating system was working and in good repair and put the responsibility for maintenance and repair on Beshara.
Burden is Much Greater in a “Design Defect” Case
In my last newsletter, I talked about the manufacturing defect. In the manufacturing defect case, you don’t have to show that all the products were “bad;” only that one bad apple came off the assembly line with a defect that later caused a fire.
More Articles...
- The “Assembly” Product Defect Case
- Maryland High Court Finds Waiver of Subrogation Provision May Be Inapplicable
- "Forcing" Insured to Protect Carrier's Subrogation Interests May Violate GBL 349
- Carrier May Not Intervene in its Insured’s Tort Litigation Since It Didn’t Make any Payments
- Procurement of Insurance Necessary Before Invoking Waiver of Subrogation
