Experience Archive

A recent case out of New England serves as a reminder for lawyers practicing in all jurisdictions that witness coaching, whether in a remote environment or in person, violates the ethical rules. After coaching a client during a remote deposition, a lawyer practicing in Massachusetts was faced with disciplinary action for his conduct. The Massachusetts Board of Bar Overseers of the Supreme Judicial Court ("BBO") issued a public reprimand and noted that although disciplinary actions relating to remote proceedings are relative anomalies, their oversight is active and expected to increase over time.

The United States Supreme Court is set to decide Smith v. Spizzirri, and resolve a federal circuit split as to whether federal courts must stay lawsuits or dismiss lawsuits where arbitration is compelled.

On February 2, 2024, the Texas Supreme Court answered a certified question from the Fifth Circuit Court of Appeals in Mario Rodriguez v. Safeco Insurance Company of Indiana. In Rodriguez, the Texas Supreme Court held that the plain language of Section 542A.007(a) of the Texas Insurance Code makes clear that payment of an appraisal award, plus applicable statutory interest, extinguishes an insured's right to recover attorney's fees in litigation. The Court reasoned that because the insured received payment of the appraisal award—which covers his claim under the insurance policy—the insured would have no remaining claim under the insurance policy for damage to or loss of covered property.

The Illinois Supreme Court recently handed down a landmark decision in Acuity v. M/I Homes of Chicago, LLC, 2023 IL. 129087_N.E.3d_(2023), finding that property damage that arises from the defective work can be caused by an accident that qualifies as an occurrence under an insurance policy. With this decision, Illinois joins the majority of states finding that this type of damage constitutes an occurrence. The holding is significant because it does away with a hallmark Illinois rule that damage to third-party property is required to establish property damage caused by an occurrence. In effect, this decision will alter how insurance carriers in the state handle construction defect claims moving forward. Business risk exclusions may now become the central inquiry as insurers examine whether a duty to defend is present.

WSHB, a leading national defense firm, is thrilled to announce a significant legal triumph in the case of Pearland UrbanAir LLC v. Cerna. This decision, secured in the 14th Court of Appeals in Texas, sets a groundbreaking precedent in the amusement park industry and others that regularly employ waivers of liability for minors. In doing so, this decision is powerful authority solidifying the enforceability of binding arbitration agreements with minors who have executed waivers.

WSHB achieved a significant legal victory in obtaining the dismissal of a data breach class action lawsuit involving over 88,000 affected patients. The federal court judge issued a comprehensive 19-page opinion dismissing the class action and adopting the arguments presented by partners Dan Paret and Chris Seusing on behalf of their client, a non-profit mental health facility.

In the case of Tiffany Builders, LLC v. Delrahim, Case No. B384161, the California Court of Appeals addressed the age-old issue of what constitutes a valid contract. A deal made in a coffee shop and written in a notebook that was handy at the time may qualify as valid agreement if all the basic contract principles are accomplished in the writing. Here we examine this case and the various contract theories it addressed.

WSHB's Sebastian Larrea and Nicole Dominguez secured a victory in a property insurance claim dispute, resulting in the dismissal of the lawsuit with prejudice. This triumph not only showcases the firm's commitment to excellence but also highlights its exceptional ability to navigate complex legal challenges with expertise and skill.

For years, Oregon has been known as a jurisdiction that generally does not recognize "bad faith" claims against insurers, absent the existence of a "special relationship" outside of the insurance policy. Historically, an insured's remedies against its insurer are limited to contractual remedies, which do not include damages for emotional distress. The recent decision by the Oregon Supreme Court in Moody v. Oregon Community Credit Union, 371 Or. 772 (Or. 2023), marks a notable shift in the legal landscape concerning private rights of action under the Unfair Claims Settlement Practices Act (ORS 746.230). The Moody Court overturned precedent finding that under limited circumstances an insured can assert a common law negligence claim and recover emotional distress damages where an insurer violates ORS 746.230 and undermines public policy. The practical impact of this landmark case is still unfolding, but we know that it will lead to far more litigation involving first party claims that can no longer easily be disposed of via motions to dismiss.

In a recent pivotal decision, the California Supreme Court has removed a potentially important tool for employers defending Private Attorney General Act (PAGA) claims. The ruling in Estrada v. Royalty Carpet Mills, Inc. has not only eliminated a crucial defense strategy, but has also sparked discussions on effective approaches to counter large, unmanageable PAGA claims. This article addresses the origins of PAGA, the prior disparities among lower courts, the California Supreme Court's stance, and the available defense strategies for California lawyers.

In a major legal triumph, WSHB is pleased to announce that the Appellate Division affirmed the lower court's decision in a high exposure labor law case. The Appellate Brief was drafted by senior counsel, Courtney Scharpf, and argued by partner, Cole Munson. In its ruling, the court denied the plaintiff's motion for summary judgment citing critical issues of fact regarding the stability of the ladder at the center of this case.

Businesses may rejoice in this decision out of the Second District of California finding that a dissatisfied customer spewing falsehoods online could, in fact, be found liable for committing libel against her contractor. In the case of Paglia & Associates Construction, Inc. v. Hamilton (2023) Case No. B313864, the Court ruled that a client's bashing of her contractor online was not privileged despite the fact that the two were embroiled in a review by the Contractors State License Board. The litigation privilege did not apply where the writings were not sufficiently connected to the litigation.

As the calendar turns to 2024, New York employers should be aware of several new laws going into effect in the Empire State. As the new laws go into effect, businesses should take note of the potential implications the new laws have on businesses and employers should take proper action to revise current policies and procedures to ensure compliance.

In the case of In re Barnes, 655 S.W.3d 658 (Tex. App. 2022), the Texas court upheld an injured party’s right to protect their mental health records where a mental health or medical issue was not at the center of the controversy. It emphasized the importance of screening privileged documents before disclosure to ensure that the least amount of confidential information necessary is revealed as part of the case. A general request for mental anguish coupled with negligence and bystander liability claims was an insufficient reason to order the disclosure of the entirety of the party’s mental health records. This decision is important for defense counsel to note as the issue at hand may have been easily avoided if the request for records had been sufficiently tailored and narrowed in scope.

The judicial landscape of 2023 was marked by several pivotal decisions that significantly impacted the legal landscape on several fronts. From rulings on qualified immunity for healthcare professionals to underinsured motorists decisions, the courts played a significant role in interpreting and changing the application of significant laws in Arizona this past year. In this article, we will delve into some of the most influential court decisions and break them down.

A recent ruling by the Supreme Court of Florida in the case of Alberta S. Ellison v. Randy Willoughby, No.SC2021-1580 (November 2, 2023), has significant implications for insurance companies. The court determined that bad faith settlement proceeds from a plaintiff's uninsured motorist insurer should not be considered a "collateral source" under Florida Statute § 768.76. This article summarizes the case and provides practice pointers for the defense bar and insurance carriers in light of this ruling.

In Scottsdale Insurance Company v. American English, LLC, 1-23-cv-000028, (N.D. Ill. 2023), the Northern District of Illinois held that an insurer was not obligated to defend and indemnify an insured whose agent injured a passerby when unloading a cart from a company van. An auto exclusion eliminated the duty owed by the insurer under the policy.

WSHB is proud to announce that Partner Bolam Kim, lead counsel in a highly contentious childhood lead paint case, has achieved a significant victory. The appellate decision, delivered on November 9, 2023, is poised to impact the industry significantly as a seminal decision for the defense in lead paint litigation and is sure to have broad application for future cases moving forward.

In what appears to be an emerging trend upending years of precedent, the Fifth Circuit Court of Appeals has now suggested that Title VII employer liability could extend to situations where an employee has not been subjected to an “ultimate employment” decision. In two recent decisions, the Fifth Circuit Court of Appeals has said that the plaintiffs in those cases could pursue Title VII disparate treatment claims for discrimination based on the denial of the privileges or terms of employment, such as shift schedules and days off. Below, we briefly examine those two cases and assess their impact on employer liability going forward.

In a recent legal case, Summerfield v. City of Inglewood, Summerfield v. City of Inglewood, No. B324117, 2 (Cal. Ct. App. Oct. 25, 2023), the court examined whether the City could be held liable for the murder of a park visitor in a parking lot. The court's ruling has significant implications for public entities and their responsibility to protect visitors from potential harm. This article will delve into the details of the case, discussing why it is important to understand the criteria for establishing a dangerous condition on public property. By examining the court's reasoning and analysis, we can gain valuable insights into the duty of care owed by public entities and the limits of their liability in such cases.

In a groundbreaking decision, Long Beach Mem’l Med. Ctr. v. Allstate Ins. Co. (2023) 95 Cal.App.5th 710 (Long Beach), the California Court of Appeal interpreted the Hospital Lien Act (HLA) and established that insurers (or others) settling a patient's third-party injury claim must pay statutory hospital liens separately from the settlement payment to the injured party. Thus, when claimants or their attorneys improperly insist that the party paying a bodily injury settlement issue a single check to the claimant's attorney and the medical provider, they should be directed to the decision in Long Beach, as the Court of Appeal unequivocally declared this practice to be unacceptable.

Washington law statutorily provides an avenue for a former tenant who was a defendant in an unlawful detainer action to seek a court order prohibiting tenant screening services from sharing the prior unlawful detainer action with a prospective landlord. This order is called an Issuance of Order for Limited Dissemination (OLD). The statute allows for the issuance of an OLD under three main scenarios, one of them for “other good cause.” In Housing Authority of Grant County v. Parker, No. 390-89-6-III, WA. Ct. of App. (Sep. 21, 2023), the court explored the meaning of “other good cause” as provided for by the statute and directed the parties accordingly.

WSHB’s Connecticut Partner Kate Adams has demonstrated her exceptional legal prowess in the recent appellate decision of Harold Dusto et. al. v. Rogers Corporation et. al., No.45341, 2023 WL 6964115 (Conn. App. Ct. Oct. 24, 2023). The court, relying on Kate's analysis presented before the Connecticut Supreme Court in the groundbreaking 2018 case, Lucenti v. Laviero, 327 Conn. 764, 176 A.3d 1 (2018), adopted the factors she put forth to determine whether a plaintiff employee has sufficient evidence to fall within a narrow exception to workers' compensation immunity.

The Superior Court of Pennsylvania in Johnson v. Toll Brothers, Inc., No. 2119 EDA 2022 found that homeowners did not qualify for a two-year extension under the Statute of Repose when a defect of the property was known to them and existed prior to the tenth year after a Certificate of Completion had been issued. The Superior Court also held that where a governing body signed off on the Certificate of Completion, the homeowner cannot later claim that the contractor’s building practices were unlawful. This case is a significant victory for builders and developers who fear homeowners bringing suits for defects that existed years before the Statute of Repose expired and later claiming that their building methods utilized were deficient even though they constituted best practices at the time of the construction.

On October 10, 2023, Governor Gavin Newsom signed Senate Bill (SB) 365, which brings about significant changes to the existing law concerning the appeal of orders denying motions to compel arbitration. According to the new SB 365, an employer who loses a civil motion to compel arbitration is no longer permitted to stay the proceedings pending an appeal. This article examines the key provisions of SB 365, its implications for employers, and the potential challenges it may face on preemption grounds. It is essential for employers to be aware of these changes and take proactive measures to ensure compliance and effective dispute resolution.

The appeal in Duran v. Employbridge Holding Co. (CA5 F084167) challenged the denial of a motion to compel arbitration of claims seeking to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) after the United States Supreme Court in Viking River Cruises, Inc. v. Moriana held that “individual” PAGA claims could be compelled to arbitration. However, the arbitration agreement in question contained a carve-out provision stating that “claims under PAGA … are not arbitrable under this Agreement.” The trial court determined that the phrase "claims under PAGA" must include all PAGA claims, thus making the agreement's carve-out effectively exclude even “individual” PAGA claims from arbitration. The Court of Appeals affirmed the trial court's ruling.

The Supreme Court of California recently considered the meaning of the term “employer” in Raines v. Healthworks Medical Group, (9th Cir. 2022) 28 F.4th 968, 969. It found that business-entity agents engaged in certain aspects of the hiring process may be directly liable for violations of anti-discrimination laws. This outcome is significant because the decision effectively enlarged the potential scope of liability under the Fair Employment and Housing Act (FEHA) by including employer’s agents who employ five or more employees within the definition of “employer.”

When parties find themselves embroiled in a legal dispute, they often face a choice between pursuing their case in court before judges and juries or seeking resolution through arbitration. While both options have their merits, arbitration has increasingly become a preferred method of dispute resolution as it offers increased efficiency and confidentiality. For this reason, many business entities routinely include arbitration provisions in contracts. Many clients also like it because it avoids the prospect of runaway verdicts or nuclear verdicts in factually troublesome matters.

WSHB, a leading national law firm, has achieved a significant victory in securing discovery related to litigation funding in a highly contentious matter between the parties. The court order issued by the Superior Court of Waterbury, CT., mandated the disclosure of a plaintiff's application for a litigation loan, shedding light on the implications of third-party funding in legal proceedings.

California has strengthened its stance against non-compete agreements with the signing of an amendment to the state's non-compete ban, known as S.B. 699. The amendment, which takes effect on January 1, 2024, declares non-compete agreements void regardless of when or where they are signed, including those signed outside of California. S.B. 699 also introduces a new private cause of action, allowing employees to take legal action against employers who use unenforceable non-competes as a deterrent. However, there are still unanswered questions surrounding the amendment, including its impact on Labor Code §925, and its potential retroactivity. Employers, both within and outside of California, should carefully review their use of restrictive covenants in light of these developments.

On October 16, 2023, the California Court of Appeal for the Second Appellate District reversed an order by the Santa Barbara County Superior Court granting a motion in limine excluding the testimony of plaintiff Dana Brancati’s medical expert in a mold bodily injury case. That exclusion order resulted in the dismissal of the plaintiff’s action. Finding that the medical expert was qualified and that his opinion was “based on facts and a differential diagnosis,” the Court of Appeal reversed the trial court’s orders.

The Connecticut Supreme Court recently handed down a pair of important opinions in Mills v. Hartford Healthcare Corp. and Manginelli v. Regency House of Wallingford, Inc. The opinions answered the question of whether health care providers and facilities could be civilly liable for healthcare services undertaken in support of the state’s COVID-19 response pursuant to Governor Ned Lamont’s Executive Order No. 7V. In both decisions, the court’s review included the consideration of acts and omissions undertaken due to the lack of resources that often plagued those in the medical field during the pandemic as well as examining the principles for interpreting an executive order by the Connecticut Governor.

In a recent appellate decision that will have far-reaching implications for brokers in the freight industry, Illinois' First District Appellate Court reversed a judgment in the groundbreaking case of Cornejo v. Alliance Shippers, Inc. (2023) IL App.1st No. 220633. The court determined that an agency relationship did not exist between the freight broker and the motor carrier, thereby relieving the broker of vicarious liability for the driver's negligence. This pivotal decision, handed down on September 27, 2023, has sent shockwaves through the industry and has the potential to redefine the legal landscape for brokers.

The California Supreme Court answered two certified two questions in the case of Kuciemba v. Victory Woodworks, Inc. (2023)_Cal.5th_, 2023 WL 4360826. The decision signals a significant development that could have wide-reaching implications surrounding employer liability related to COVID-19. The Court's decision is poised to influence how future cases involving the derivative nature of workplace-related "injuries" from COVID-19 are adjudicated moving forward.

On September 30, 2023, Governor Gavin Newsom signed SB-235 into law. SB-235 will affect the rights and obligations of the parties as it pertains to the exchange and disclosure of factual information during discovery. Specifically, the new law amends California Code of Civil Procedure section 2016.090 and institutes a procedure for initial disclosure of information and documents that is similar to that followed in Federal court. The changes apply only to civil actions filed on or after January 1, 2024 and shall remain in effect until January 1, 2027.

In a remarkable trial victory, attorney Maggy Mazlin achieved a unanimous defense verdict, rejecting a $9 million settlement demand and concluding over 5 ½ years of litigation. The trial, held in Suffolk County, saw a jury deliberation of just 25 minutes on liability before determining that WSHB’s client was not negligent.

WSHB added another success to its trial scorecard for the Pennsylvania office late this evening. In a medical malpractice case involving one of its hospital clients, an arbitrator rejected outright the claim handing the victory to WSHB’s hospital client. This particular case involved a claim for wrongful death/survival. Led by esteemed trial partner Andy Kessler, WSHB’s legal team achieved an extraordinary outcome for our hospital client, marking a significant milestone in the pursuit of justice.

Inzunza v. Naranjo et al. (2023) __Cal.App.5th__[2023 WL 5344893], involved a wrongful death action initiated against a truck driver and his employer. The plaintiffs claimed that the truck driver’s negligence caused the death of the decedent. After a jury returned a verdict in favor of the plaintiffs, the trucking company employer appealed claiming that they were improperly precluded from bringing evidence to combat the vicarious liability claim against them as well as bringing evidence of comparative fault on the part of the decedent. In this recently published decision, the court reversed the judgment against the employer and remanded for a new trial. The Court based its finding for remand on the fact that deemed admissions of an agent employee-codefendant do not bind the employer as the principal in the same action, even when the claim involves vicarious liability.

Can a mother who heard the injury of her daughter occur over a cell phone sustain a cause of action for negligent infliction of emotional distress against not only the driver causing the injury, but also against the City and homeowner for allegedly allowing a dangerous conditions that plaintiffs claim contributed to the crash? In Downey v. City of Riverside (2023) 90 Cal.App.5th 1033, the court found that liability for negligent infliction of emotional distress cannot be imposed for the consequences of allegedly harmful conduct when she was neither present at the scene of the accident nor did she have knowledge at the time of the accident of the connection between the defendants’ alleged negligent conduct and her daughter’s injuries. Although the court noted that Downey potentially had perceived the incident through the cell phone, she did not successfully establish a causal connection between the alleged dangerous condition and the emotional damages she suffered as a result of the accident.

On June 16, 2023, the Supreme Court of Texas issued an important decision in Chohan v. New Prime, Inc, following a petition for review from the Court of Appeals for the Fifth District of Texas, addressing the award of noneconomic damages in a wrongful death case and emphasizing the need for an actual nexus between the award of noneconomic damages and the evidentiary record.

On August 30, 2023 the United States Department of Labor announced a notice of proposed rulemaking that would extend overtime pay to an additional 3.6 million salaried workers. In a nutshell, the proposed rule guarantees overtime pay for previously exempt salaried workers who earn less than $1,059 per week, or about $55,000 per year. This proposed change revises section 13(a)(1) of the Fair Labor Standards Act (FLSA), which exempts minimum wage and overtime pay requirements for certain executive, administrative and professional employees. It also provides for an automatic updating mechanism that streamlines the process to update and accurately reflect current earnings data.

In a precedent-setting decision by California’s Third District Court of Appeal, the court clarified the reach of Code of Civil Procedure (“CCP”) section 998, California’s cost-shifting statute. (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, as modified on denial of reh’g (May 9, 2023), review granted (Aug. 30, 2023)¹.) The case is noteworthy because it clarifies that a plaintiff who does not accept a section 998 offer, and later obtains a less favorable result through a stipulated settlement, rather than through a formal “judgment,” may still invoke the cost-shifting provisions of section 998. The court reasoned that a contrary interpretation would undermine the purpose of CCP section 998, as it would improperly benefit a party who did not accept a section 998 offer that proved to be reasonable based on the amount that party ultimately accepted through a stipulated settlement.

WSHB, a leading law firm specializing in complex litigation, secured a momentous victory on appeal in a high-stakes elder abuse and wrongful death lawsuit. Partner Marilyn Victor, Senior Counsel Joanna Dyriam, and Appellate Specialist Steve Disharoon, showcased their exceptional skills and expertise to secure a critical win for their clients.

WSHB, a leading national law firm, is pleased to announce the successful dismissal of its client in a high-profile wrongful death lawsuit following a two-week trial. The case involved a tragic collision on the 91 freeway, which resulted in the death of a young driver. WSHB's strategic defense team effectively navigated the complex legal landscape, leading to a favorable outcome.

In Greenfield v. Dep't of Labor & Indus. of State, No.57156-1-II (Wash. Ct. App. Jun. 21, 2023), the court found that a intake counselor for the ACLU who worked on a volunteer basis for almost a year was not subject to the Washington Minimum Wage Law. As a volunteer working for a non-profit, he was exempt from the statute and the ACLU could not be held liable for refusing to pay him or offer him a future opportunity or employment.

We are pleased to announce a significant trial victory in the case involving allegations of sexual battery brought by plaintiff against her physician. Following a two week trial, the jury returned a defense verdict for WSHB’s client, a nephrologist and internal medicine specialist. 

The Supreme Court of Georgia recently delivered its highly anticipated decision in Ga. CVS Pharmacy v. Carmichael, S22G0527 (June 29, 2023), shedding light on the liability of proprietors and security contractors for injuries resulting from third-party criminal activity. While the ruling addresses various aspects of these claims, some unresolved questions remain.

In King County v. Walsh Construction Company, No. 83787-7-1 (July 3, 2023), the Washington Court of Appeals' discusses the effect of warranty language in construction contracts when design errors are implicated. Contractors should review the warranty language in their contracts to make sure they are not unknowingly agreeing that the design drawings are sufficient.

WSHB is thrilled to announce a significant victory in the recent dismissal of a slip and fall lawsuit against their client. The plaintiff had demanded the policy limits of $1,000,000.00, but WSHB successfully obtained a complete dismissal of the case through a strategic motion for summary judgment. 

On July 23, 2023, California Senate Bill 652 was signed into law, changing the standard of proof required for admissibility of expert opinion testimony regarding alternative medical causation at trial. The new law, which was drafted in response to a California Court of Appeal decision that affirmed the existing standard of proof for admission of defense expert medical opinions at trial, imposes a higher standard of proof on defendants. This amendment to the California Evidence Code, under new section 801.1 goes into effect in 2024.