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Most states have adopted a version of what is typically referred to as the “Malfunction Theory” that permits circumstantial proof of a product defect in a product liability action. The Malfunction Theory largely corresponds to the doctrine of
res ipsa loquitur in negligence cases. Generally, the concept is that if a product fails in a fashion that most likely would not have occurred if it were not defective, and reasonable alternative explanations can be ruled out, the jury is permitted to conclude that the product was defective, even absent specific proof of a defect. The Malfunction Theory is adopted at Section 3 of the
Harford Gets Out Of Hotels Pandemic Coverage Suit
law360.com - get the latest breaking news, showbiz & celebrity photos, sport news & rumours, viral videos and top stories from law360.com Daily Mail and Mail on Sunday newspapers.
Delaware County, ready for trial, seeking $32 million for collapse of parking garage
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Wednesday, March 10, 2021
Insurers’ in-house and outside counsel should exercise care when writing all or part of a denial letter for a claim handler to sign and send, or counsel may unwittingly waive the company’s attorney-client privilege and find themselves subject to deposition. In
1 The court reasoned that the insured was entitled to depose the individual with personal knowledge of the reasons for the denial, but, at deposition, the claim handler testified she had not received any training on the applicable legal standards, and she could not explain the letter’s analysis of Mississippi law.
2 The court therefore concluded that because the claim handler did not have personal knowledge of the reasons for denial, the insured was entitled to depose the in-house attorney who prepared the letter and to review correspondence between the attorney and the claim handler regarding the claim.