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Defense Award on Subrogation Waiver in U.S. District Court District of North Dakota

Bismark, ND
Feb 22, 2016

Otter Tail Power Company v. Siemens Energy, Inc.

CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.

In Otter Tail Power Company v. Siemens Energy, Inc., advanced motion practice was used to limit the plaintiff’s $11 million tort and warranty claim to a maximum potential recovery of $1 million. Though filed in the name of Siemens’s customer Otter Tail, the case was prosecuted by Otter Tail’s insurer under a loan-receipt arrangement. The operative facts involved technical issues regarding a generator stator rewind, but Bowman and Brooke moved on the pleadings to dismiss all claims over $1 million based on a subrogation waiver in the Siemens-Otter Tail services agreement. In light of the loan-receipt arrangement, the plaintiff argued the case did not involve subrogation, and it cross-moved to dismiss the waiver defense. The dueling motions raised an issue of first impression in North Dakota (indeed, few jurisdictions have decided the issue), and we were opposed by Robins Kaplan. After full briefing and a spirited oral argument, the district court dismissed all claims against Siemens exceeding $1 million.

Otter Tail Power Co. v. Siemens Energy, Inc., No. 29-2014-CV-00049 (N.D. Dist.)

Plaintiff was represented by Robins Kaplan and Zuger Kirmis & Smith

Defendant was represented by Alana K. Bassin, John D. Sear and Isaac W. Messmore of Bowman and Brooke LLP


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