Experience Archive

In a trifecta of good news for defense attorneys, three separate cases in the New York Court of Appeals were decided in favor of insurers in bodily injury construction claims. Although it may not yet be considered a trend, a positive decision for the defense, especially in traditionally plaintiff-friendly counties, is good news for insurance companies and the attorneys who defend them.

 Another trial “first” for national law firm Wood, Smith, Henning & Berman last week when a Los Angeles jury returned the verdict. Tried by sibling partners, Tracy and Paul Lewis, this case represents a brother-sister trial duo that defeated plaintiff’s claim for over $2.4 million. 

In a widely-anticipated decision, the Massachusetts Supreme Judicial Court unanimously held that where a franchisee is an “individual performing any service” for a franchisor, the three prong test set forth in the independent contractor statute applies to the relationship between a franchisor and the individual and is not in conflict with the franchisor’s disclosure obligations prescribed by the FTC Franchise Rule.

Appellate Division revokes case law carrying a presumption that third-parties or recording devices are allowed in the examination room for psychological defense medical examinations, but require plaintiffs to show “special circumstances” warranting third-party observation or recording of physical examinations.

After decades of debate, the reform of medical malpractice claims in California is finally coming to fruition. Legislators and interested parties on both sides of the MICRA debate have reached a compromise and agreed to a deal that will avert a planned ballot measure in the upcoming election.

A constant struggle for Florida insurers is how to handle partial claim payments when the Insured assigns benefits under the Policy to entities that are not a party to the insurance contract, like mold mitigation and testing vendors. This is especially true when there may be insufficient limits available due to a mold or water limitation, or when considering how to apply the deductible. A recent Fourth District Court of Appeal decision highlights the conflicting viewpoints on how an insurer should handle these disputes.

A football player injured during a game was barred from filing a claim against the school district and its employees after signing an express assumption of the risk agreement. The school followed all applicable CIF and school regulations regarding concussions and was not grossly negligent in its actions.

Generally, a property owner is required to warn contractors performing work on their property of dangerous conditions. Where the condition is open and obvious, however, this obligation is no longer required and the property owner will not be liable for any personal injuries or property damage that occur due to the known danger.

In a fear-inspiring decision for medical professionals, a Tennessee jury recently found a nurse from Vanderbilt University Medical Center guilty of reckless homicide and gross neglect of an impaired adult patient. Criminal charges were filed against the nurse after she accidentally administered the wrong medication to a patient who later died. This case has wide-ranging implications for health care law and medical professionals across the country.

In a decision released on March 11, 2022, the California Court of Appeal held that Amazon was not immune from liability for failing to provide California Proposition 65 warnings on certain skin-lightening creams sold on its website. In Lee v. Amazon.com, Inc., Court of Appeal Case No. A158275, the Court held that a plaintiff was not required to show that Amazon had actual knowledge of the presence of mercury in the products it sold on its website and the Communications Decency Act did not protect Amazon from liability. The decision may have wide-ranging implications for e-commerce, requiring web retailers to issue warnings to California residents when manufacturers do not.

California Business and Professions Code 7031 is a provision prone to drawn out court battles with confusing fact patterns. In the recent case of Panterra GP, Inc. v. Superior Court, 74 Cal. App. 5th 697, 289 Cal. Rptr. 3d 743 (2022), review filed (Mar. 10, 2022), the justices were persuaded by the conclusion that the application of this section often results in a harsh outcome for many plaintiffs. Given that, they found that a licensed contractor who was not properly named in the contract could have its day in court to seek reformation of the contract to reflect the true intent of the parties.

The Supreme Court answered the Fifth Circuit’s certified question inquiring whether the employee exception in the Texas Anti-Indemnity Act (TAIA) permits additional insured coverage when an employee who was injured on the job site sues the additional insured for his personal injuries. Can the injured employee recover under these circumstances and is he a co-employer of the indemnitor under the Texas Workers’ Compensation Act (TWCA)?

Although surety companies are generally not liable for tort damages to a third party, Washington’s legislature has carved out a limited exception for the setting up and sitting of mobile homes. The Revised Code of Washington (RCW) establishes a per se violation of the Consumer Protection Act in situations where a bonding company does not perform a reasonable investigation to resolve the claims of third parties who have sustained injuries or other damages as a result of a faulty set-up of a mobile home. However, to access this exception, the injured party must make a claim against the bond by filing a lawsuit in superior court. A surety’s duty to investigate and resolve the claim is not triggered until such suit is filed.

A trial court that granted defendant’s motion to compel arbitration has jurisdiction to lift the stay where a plaintiff demonstrates financial inability to pay arbitrations costs. The trial court may then instruct the defendant to pay the plaintiff’s share of costs for arbitration, or agree to waive its right to arbitration.

A plaintiff suing for medical malpractice could not collect payment for her injuries under a settlement agreement, where she had not performed her end of the bargain. Specifically, the failure to execute a “more comprehensive settlement” addressing mutual confidentiality was non-performance by the plaintiff. The mutual confidentiality agreement did not prevent required public disclosures to the Medical Board as plaintiff claimed and it was not otherwise in violation of the Business and Professions Code. In addition, the defendant was not entitled to attorney fees for requests for admissions that went to the heart of the case and then used to demand attorney fees after prevailing on the issue.

In 2019, the Washington State Legislature amended the wrongful death statute to include certain second tier beneficiaries, including siblings of the deceased. Previously, parents and siblings could only sue for wrongful death in Washington if they were financially dependent on the decedent. With the precedent set by the Washington Supreme Court in Kellogg v. Nat’l R.R. Passenger Corp., No. 99724-1, 2022 WL 552605 (Wash. Feb. 24, 2022), it is clear that Washington courts will now allow wrongful death cases to proceed for second tier beneficiaries who are not financially dependent on the decedent. Moreover, claims by second tier beneficiaries which are not yet time-barred may also proceed, even if the death occurred prior to the amendment of the wrongful death statute.

The New York State Supreme Court’s failure to give proper jury instructions regarding the substitution of an alternate juror as well as its failure to require that deliberations resume from the beginning after the alternate juror joined the jury, resulted in an invalid verdict which deprived the defendants of their constitutional and statutory rights.

In the case of Lydia Kaney v. Carol A. Custance, the California Court of Appeal provided great latitude to plaintiffs when it comes creating a triable issue as to causation where the plaintiff lacked any recollection of the incident, or knowledge of what may have caused the incident.

The Insurance Fraud Protection Act (IFPA) did not prohibit subsequent qui tam lawsuits against the same defendant doctor when the actions involve different victim pools or schemes of fraudulent activity.

An employee who stepped outside for a smoke and to walk across the street for a sandwich on an unplanned break was entitled to workers compensation. The Pennsylvania Commonwealth Court found that these activities remained within his course of employment.

Contractors in the State of Washington have been watching closely a case involving prelien notice by subcontractors. On December 6, 2022, the Washington Court of Appeals, Division Two addressed the issue in the decision of Velazquez Framing LLC v. Cascadia Homes, Inc., (2022) Case No. 56513-7-II. In this matter, a second-tier subcontractor’s failure to provide prelien notice to the general contractor prevented enforcement of its lien. The court held that allowing an unknown subcontractor to file a lien against a general contractor's property when the general contractor was not aware of the second-tier subcontractor’s hiring or participation in the project is against legislative policy to protect both laborers and owners.

An employee who brought suit against his employer for multiple Labor Code violations was not held to the provisions of an arbitration agreement as several terms were skewed in favor of the employer. The court found that an agreement signed as a condition as employment as well as containing multiple unfair terms that were stacked against Plaintiff, rendered the contract as a whole unconscionable and unenforceable.

After appealing the trial court’s grant of summary judgment, a hospital manager will get her day in court. In Crabtree v. Jefferson Healthcare, the Court of Appeals (Div. 3) found that a genuine issue of material fact exists as to the reasons for the employee’s termination of a pregnant employee and subsequently, the case should be heard and decided upon by a jury.

At the close of 2021, Governor Hochul signed into law the New York 2022 Comprehensive Insurance Disclosure Act. This law provides for significant amendments to the Civil Practice Law and Rules (C.P.L.R.) and will greatly impact insurance carriers as well as defense counsel moving forward. The new law mandates certain insurance disclosure requirements that may have detrimental effects on the defense industry by opening up the flood gates to more litigation and inflated demands on settlement. It also imposes burdensome requirements within a short period of time to disclose actual insurance policies and other lawsuits that affect or implicate coverage.

In an important development, the United States Supreme Court agreed to review the California Court of Appeal opinion in Viking River Cruises v. Moriana, B297327 (Cal. App. Sep. 18, 2020), involving a motion to compel arbitration and California’s Labor Code Private Attorneys’ General Act (“PAGA”) statute. The issue before the court is whether a pre-dispute arbitration agreement under the Federal Arbitration Act (“FAA”) purporting to require arbitration of any such claim is valid. A favorable employer decision would invalidate longstanding California law precluding arbitration of any PAGA claim, and have massive positive repercussions in favor of employers.

At the close of 2021, the Nevada Supreme found NRS 52.380, which allowed observers and audio recording during physical or mental examinations without a prior showing of good cause, unconstitutional under the separation of powers doctrine. Notwithstanding the constitutional and legal reasoning behind the ruling the court’s decision represents an end to a nearly 3-year policy battle. The decision also has practical implications for practitioners involved in personal injury litigation in Nevada. Namely, the appropriate procedures for physical and mental examinations are exclusively found in Nevada Rule of Civil Procedure 35. This may not be a particularly groundbreaking legal development, but it provides Nevada practitioners with some much-needed clarity regarding independent medical examinations in civil discovery.

For over a year now, Americans with Disabilities Act (ADA) website accessibility cases in federal district courts in Florida, Georgia, and Alabama have been at a near standstill pending an appeal to the Eleventh Circuit Court of Appeals in the matter of Gil v. Winn Dixie Stores. The appeal sought review of a trial court’s judgment that Winn Dixie’s website violated the ADA by not providing sufficient technology to allow a vision-impaired customer access to the website’s virtual offerings that he would have then used in the physical store location. On April 7, 2021, the Eleventh Circuit vacated judgment, holding that under the ADA, Winn Dixie’s website was not a “place of public accommodation.” The decision at the Eleventh Circuit was reached by only a panel of three judges. The plaintiff then asked the Eleventh Circuit to rehear the case en banc, or to have all of the Eleventh Circuit judges decide the case again. On December 28, 2021, the Court granted plaintiff’s request but then dismissed the matter entirely.

Thirty-one days of trial testimony have culminated in a resounding defense verdict in a trial involving a commercial property in Orange County, California. After six hours of deliberation, the jury rejected a myriad of claims from the plaintiff, who leased a restaurant in a commercial area. Plaintiff claimed damages against the building property owner and management company exceeding $10.5 million, plus punitive damages and attorney fees.

A San Diego jury returned a defense verdict after deliberating for less than one hour in a closely watched habitability case involving a plaintiff claiming significant injuries from bedbugs. WSHB partner Paul Lewis successfully argued to the jury that plaintiff’s claim for over $500,000 in damages should be rejected in its entirety, a decision they embraced wholeheartedly.

The Massachusetts Supreme Judicial Court ruled that the COVID-19 emergency order which tolls the filing deadline for civil suits should apply to all civil cases and not be limited to those with a deadline within 3/17/20-6/30/20. This case is important to practitioners and those doing business in in Massachusetts because it clarifies the applicability and timing of several court orders that tolled statutes of limitations and court deadlines due to the COVID-19 pandemic impacting normal business and court operations in Massachusetts

In a closely watched trial, a Los Angeles County jury rejected the plaintiff’s demand for approximately $20 million in damages for a case involving allegations of traumatic brain injury, spinal injuries, and injuries to the cranial nerves of an eye caused as a result of a car accident. After deliberating for approximately 11 hours, the jury awarded $252,049.47. Noted by trial attorney Fred Vasquez, this amount was appreciably less than the policy limits demanded during the pendency of this case.

The Spearin Doctrine dictates that a project owner impliedly warrants that the plans and specifications it provides are accurate and suitable, and can protect a contractor against liability. Must a contractor prove that all of the construction defects are attributable to the owner's defective plans and specifications to prevail on this affirmative defense? The Washington State Supreme Court in Lake Hills Investments, LLC v. Rushforth Construction Co., Inc. d/b/a AP Rushforth, et al. answers this question and provides guidance on the application of the Spearin Doctrine in defending construction defect claims.

Corporate executives and their legal counsel should immediately take note of the recently amended rule of civil procedure in Florida, which now formally recognizes high level corporate officials as a protected party under the Apex Doctrine.

The 2021 Texas Legislative Session tackled the issue of sexual harassment in the workplace by passing two new pieces of legislation that go into effect on September 1, 2021. These laws create cause of action for sexual harassment in the workplace and also delineate protections for employees who work for smaller employers.

WSHB secured a significant victory for carriers in the Lloyd’s of London insurance market yesterday when the Ninth Circuit affirmed an order compelling arbitration under the Convention on the Recognition of Foreign Arbitral Awards (the “Convention”). In its holding, the Ninth Circuit made clear that foreign insurers, like those participating in the Lloyd’s of London insurance market, can enforce arbitration provisions, even if a state statute prohibits their enforcement in insurance contracts. This decision should pave the way for foreign insurers to enforce arbitration provisions. Underwriters and their third-party administrator were represented by WSHB’s coverage team of Colleen McCaffrey and Trevor Peck.

Colorado’s Supreme Court shined a bright light on the importance of risk management in the employment world this week. Examining the hot issue of vacation pay, this particular case offers excellent guidance to employers not only in Colorado, but nationally on the import of managing and dispersing employee unused vacation pay. Employers in Colorado will need to revisit their paid time off and vacation policies after the Colorado Supreme Court's recent decision in Nieto v. Clark's Market, Inc., wherein the court ruled that a former employee of Clark's Market was entitled to compensation for earned and determinable vacation pay, despite the presence of an agreement purporting to forfeit earned vacation pay, after separation from the company.

Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist., Div. 3, 2021), Cal. App. 5th, affirms the long-standing practice that under the California Environmental Quality Act (CEQA), no special notice is required to commence the running of the 180 day statute of limitations. The running of the statute begins when the governmental agency formally involved in the matter, approves a Memorandum of Understanding (MOU), which serves as effective constructive notice to the public. In addition, an agreement between the parties to toll the statute of limitations in a CEQA claim will fail when a necessary and indispensable party to the action is not included and did not sign the tolling agreement. The court ruled that a tolling agreement is a private agreement and not granted by statutory right.

In a unanimous and long-awaited decision in Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court on July 15th, ruled that employers must pay premium payments to employees for missed meal, rest and recovery breaks at the “regular rate of compensation,” which includes not only the based hourly rate, but also any nondiscretionary or performance-based incentive payments like bonuses or commissions received by the employee; much like the rate used to calculate the overtime rate of pay. This holding has huge implications for California employers in that it applies retroactively over the last four years, which means employers need to act quickly to avoid class action or PAGA claims.

Employers who implement arbitration agreements in the workplace must understand that there are certain limitations to enforcing such agreements when a governmental agency pursues an enforcement action on behalf of aggrieved workers, even if all workers signed an otherwise enforceable arbitration agreement and all causes of action would otherwise be compelled to arbitration if the employees filed suit on their own. In a recent case, the Ninth Circuit Court of Appeals in Walsh v. Arizona Logistics, Inc. DBA and Larry Browne, 9th U.S Circuit Court of Appeals, No. 20-15765 affirmed the U.S. Supreme Court's 2002 decision in EEOC v. Waffle House, Inc. 534 U.S. 279 (2002), by holding that the Secretary of Labor is not bound by a private arbitration agreement.

North Carolina law is well established that architects and engineers owe a duty of care to those who reasonably rely on their work. This duty runs in favor of a builder regardless of whether there is a contract with the design professional. North Carolina law is equally well established that an unlicensed contractor is barred from enforcing certain remedies under the “licensure defense.” The licensure defense is a court-created doctrine seeking to incentivize compliance with statutory licensure requirements and to protect the public from incompetent builders. These two maxims of North Carolina construction law collided in a recent North Carolina Court of Appeals case, Wright Constr. Servs., Inc. v. Hard Art Studio, PLLC, No. COA19-1089, 2020 WL 7906704 (N.C. App. Dec. 31, 2020).

On March 3, 2021, the Los Angeles County Superior Court granted Underwriters’ motion for summary judgment in a $3.5 million bad faith lawsuit. Underwriters were represented by WSHB’s insurance coverage team of Tracy Lewis and Ricky Zelonka. The case stemmed from an insurance coverage dispute arising out of a fire to residential real property in Hawaii in the summer of 2017. The Hawaii property was covered under a lender placed program issued to an international property management company. After Underwriters received the claim, the Company filed for bankruptcy and it was discovered that they engaged in a multi-year $1 billion Ponzi scheme. While Underwriters were adjusting the claim and considering the impact of the pending bankruptcy, the Company filed a bad faith lawsuit in California state court. Underwriters’ defense to the lawsuit was that the Policy was void ab initio due to the Company's concealment of the true nature of its business and representing itself as a commercial lender when it procured the Policy.

WSHB’s elite national trial team obtained a defense verdict from a jury in Orange County, California, on behalf of a property management company that specializes in community associations. The defendant was accused of wrongfully terminating an 11-year tenured employee while he was out on medical leave for treatment of Stage 4 cancer.

This trial, the team’s second case taken to verdict during the Covid-19 pandemic, was conducted under less than ideal circumstances with social distancing being enforced by spreading jurors throughout the courtroom, impacting sight lines to witnesses and exhibits, and everyone being required to wear masks, which made both hearing and judging credibility difficult. Through extra effort, strategizing, planning and physical positioning during different phases of the trial, WSHB’s trial team was able to navigate the new difficulties created by the distancing requirements.

WSHB Cybersecurity & Data Privacy team lead Christopher Seusing, along with senior counsel Ryan Schoeb, obtained a dismissal of a putative data breach class action brought against the firm's client, one of Florida’s largest healthcare providers.

In a much anticipated decision, California’s highest court held this week that a statutory penalty of $500 for Patients’ Bill of Rights violation claims brought by residents of skilled nursing and intermediate care facilities will be capped at $500 per cause of action, rather than by each individual regulatory violation. In doing so, the high court reversed the underlying decision which involved an award of the statutory penalty to each of 382 alleged separate violations. This decision is highly favorable to the skilled nursing industry given that an affirmative ruling would have likely resulted in a new influx of litigation and would have increased the potential exposure.

In California, under a rule premised on the theory of ostensible agency, a hospital may be liable for the negligence of physicians on the staff, even when such physicians are in fact independent contractors, unless the hospital has clearly notified the patient that the treating physicians are not hospital employees and there is no reason to believe the patient was unable to understand or act on the information. The required elements of ostensible agency are: "(1) conduct by the hospital that would cause a reasonable person to believe that there was an agency relationship and (2) reliance on that apparent agency relationship by the plaintiff." (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1457.) On June 1, 2020, the California Court of Appeal, Second Appellate District, decided the case of Wicks, et al. v. Antelope Valley Healthcare District. The court held, among other holdings, that the evidence established in the case conclusively established that the emergency room physicians were not the ostensible agents of the hospital as a matter of law.

Attorneys Kelly Waters and Jill Mucerino of WSHB's New Jersey office recently secured several appellate rulings enforcing arbitration clauses in favor of WSHB's clients. In one case the New Jersey Appellate Division reversed the Trial Court's denial of our motion to compel arbitration. In two separate matters that were consolidated on appeal, a different panel of the Appellate Division affirmed the Trial Court's grants of our motions to compel arbitration.

On April 6, 2020, after decades of appeals, the Supreme Court of California finally answered the question of which exhaustion method is required under the "all sums with stacking" approach when continuous injury occurs over the course of multiple policy periods for which an insured purchased multiple layers of excess insurance.

In November 2019, the jury entered a verdict of no cause in the New Jersey Superior Court, Somerset County Vicinage finding that the Bound Brook Board of Education and a baseball coach were not liable for a player's ankle injury sustained while sliding to third base. The injury occurred during a junior varsity high school baseball game. As a result of the slide, the minor, who was in ninth grade, required multiple surgeries, which Plaintiff contended ended his athletic career. Plaintiff argued at a trial that it was dangerous for the coach to instruct Plaintiff to slide when he was running at full speed and was too close to the base at the time the signal was given.