Experience Archive

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.

It’s no secret that the plaintiff bar has created a cottage industry using claims of technical violations of American with Disabilities Act (ADA) as the basis for lawsuits against businesses on the grounds that they must make their physical locations accessible to people with disabilities. Seeking to take advantage of technical violations, some individuals have filed multiple lawsuits on the same day and hundreds over the course of years against a battery of businesses in an effort to engender settlements from those defendants on the receiving end of the complaints. Now, nearly 30 years later after the ADA has become law, businesses may face claims regarding accessibility of their digital storefronts thanks to a decision handed down yesterday by the United States Supreme Court.

For years, the prohibition on assignment of bad faith claims has largely kept the time limited demand game out of North Carolina. A recent appellate decision, however, may change the playing field. The case, Haarhuis v. Cheek, 820 S.E.2d 844 (N.C. App. 2018), involved an unfortunate motor vehicle accident where an intoxicated tortfeasor hit a pedestrian on the side of the road who subsequently died as a result of her injuries. Prior to filing suit, Plaintiff’s counsel served a time-limited demand on tortfeasor’s auto carrier in which Plaintiff agreed to release his claims against the tortfeasor in exchange for payment of the liability limits of $50,000 if payment was made within ten days. Plaintiff did not receive any response to the time-limited demand from the carrier or defense counsel within the ten-day window, and filed suit shortly thereafter.

Nationally acclaimed trial lawyer, WSHB Partner Andrew Kessler, secured summary judgment in a matter pending in the Court of Common Pleas of Bucks County, Pennsylvania, in favor of our clients, a temporary staffing agency and one of the temporary employees that it placed with a third party company. Plaintiff, a 64 year-old married woman, slipped and fell entering a bathroom which had been recently mopped but for which no wet floor sign had been placed by the temporary employee. As a result of this slip and fall, Plaintiff sustained a fractured hip and significant injuries to her right shoulder and lower back. Plaintiff who was working at the third party company at the time of the incident had a workers’ compensation lien in excess of $350,000 and was claiming permanent injuries which had significantly affected her activities of daily living.

Andrew Kessler, WSHB’s newest partner in our Philadelphia office, has secured summary judgment in favor of his clients in a case in Monroe County, Pennsylvania involving the assault of a tenant’s guest at a party. Plaintiff, a social guest of the tenants, brought suit against Mr. Kessler’s clients, out of possession Landlords, after being viciously assaulted by trespassers at a party that the tenants were hosting. The trespassers, members of a local gang, “crashed” the party and then without provocation began to randomly assault other guests. During the assault, the gang members repeatedly kicked and punched Plaintiff in the head.

In a commercial landlord-tenant subrogation action by the landlord and commercial business association’s insurer, Partner David Webster recently obtained a published appellate opinion affirming the granting of a Summary Judgment Motion in favor of our client, The Wooden Duck, a long-standing furniture manufacturer and seller in Berkeley. The subrogation action followed a building fire that destroyed our client’s leased warehouse space and other property and personal property of three other entities. Plaintiff insurer issued a property damage policy to the Association that owned and maintained the common area building components and the landlord that leased space to our client. The underlying Motion for Summary Judgment was brought under California’s case-by-case anti-subrogation law which provides that lessees cannot be sued for subrogation as deemed implied co-insureds under the policy based on specific language in the lease agreement.

On July 8, 2019, the Arizona Supreme Court issued an order denying plaintiff's Petition for Review of an Arizona Court of Appeals decision that expanded the ability of defendants to enforce settlements under A.R.C.P. 80(a). Section 80(a) allows Arizona courts to enforce settlement agreements (or other agreements) based on some written acknowledgement on the part of a party's attorney, but only where the attorney's authorization to act is shown by some manifestation of that authorization on the clients' part.

Following almost two years of litigation, the Fresno office of WSHB has obtained the dismissal of a firm client from two consolidated class action complaints. Both the Micheli and Flannery actions were filed in the Fresno County Superior Court and alleged that the City of Fresno and its contractors were responsible for adverse water quality throughout North East Fresno, damaging residents' plumbing systems. The proposed class would have included tens of thousands of homes. Our client was a contractor to the City that was alleged to have contributed to corrosion by failing to follow industry standards when installing water meters in thousands of locations. Following initial discovery, WSHB filed a motion for summary judgment arguing that none of the named plaintiffs could prove that our client had performed work on their property. The proposed class representatives therefore lacked both standing and evidence of causation. The motion further argued that under the case of Baltimore Football Club, Inc. v. Superior Court (Ramco, Inc.) (1985) 171 Cal.App.3d 356, 359, the named plaintiffs lacked standing to sue our client in a representative capacity.

Last month, the Texas Supreme Court heard oral arguments in what many expect to be an important case for employers in Glassdoor, et al v. Andra Group, LP. The case concerns several disgruntled employees who had apparently aired grievances on the popular career website, Glassdoor.com. Glassdoor provides a platform for users to publicly and anonymously post reviews and information such as salary, work hours, and corporate culture of their employers for the benefit of current jobseekers.

On Monday, May 21, 2018, the Supreme Court issued a decision every private employer will be ecstatic to understand and implement into their practice. The majority opinion, authored by Justice Neil Gorsuch, held employers: (1) may rely upon clauses in their employment contracts requiring employees to arbitrate their disputes individually; and (2) may require employees to waive the right to resolve those disputes through joint legal proceedings.

In California, personal injury plaintiffs may recover the lesser of the (1) amount incurred for medical services, or (2) reasonable market value of those services. Plaintiffs with medical insurance may not offer into evidence the full billed amount since it represents a misleadingly inflated number given the realities of modern medical practices in which the amount initially billed is typically more than the amount ultimately paid, especially when insurance is involved. While truly uninsured plaintiffs may offer the amount billed as one indication of what the reasonable market value might be, insured plaintiffs could not do so even if they did not benefit from any discounted rate negotiated by their insurers. (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 135-36.)

In a wrongful death action, partner David Webster and associate Tudor Jones recently obtained summary judgment for our client, a large city in Northern California (the "City"). Plaintiff’s decedent lost control of his bicycle as he rode on a sidewalk through a narrowing underpass. Upon losing control, the decedent fell from the sidewalk into the adjacent roadway where he was struck and killed by a passing motorist. Plaintiff alleged that they City was negligent in its design and maintenance of a dangerous condition, the bicycle infrastructure, generally, on public property. The successful Motion for Summary Judgment was brought under Plaintiff’s failure to establish causation, a necessary element of the causes of action pleaded.

Following a four-day Binding Medical Malpractice Arbitration in Downtown Los Angeles, Los Angeles attorneys, Brian Hoffman and Michelle Birtja successfully defended a Medical Negligence and Loss of Consortium claim brought by Claimants against our client, a Surgery Center and co-defendant, a Pain Management Specialist. The Arbitrator issued a decision rejecting Claimants request for the application of the Doctrine of Res Ipsa Loquitor and found no evidence of a breach in the standard of care on the part of the Respondents.

Convincing subcontractors' insurers to defend a general contractor as an additional insured on a general liability insurance policy is often an uphill battle, and insurers frequently point to extrinsic evidence collected in their investigations into the matter as their reason for declining to defend. PIH Beaverton LLC v. Red Shield Ins. Co., stands to be a game-changer in this regard, strengthening the "four corners" rule and its effect on determinations concerning the timing of alleged property damage.

Builders have been waiting more than two years for the decision on the fiercely contested issue of whether or not the Right to Repair Act cuts off a homeowner's right to assert common law causes of action against a builder relating to alleged construction defects. This morning, the Supreme Court resolved that question in favor of the builders. The import of this decision is huge for those developing residential real estate in California as set out below.

The answer to this certified question (from the 11th Circuit to the Florida Supreme Court, Altman vs. Crum & Forster ("C&F"), SC16-1420) directly impacts Florida construction defect lawsuits and the cost of insurance. If a 558 notice (a mandatory pre-suit notice requirement in Florida expressly designed to provide a voluntary opportunity to resolve a construction defect claim "through confidential settlement negotiations without resort to further legal process") is not a "suit" triggering a defense, then those in the construction industry (builders, contractors, design professionals, etc.) might decline the pre-suit alternative dispute resolution process.

Following a three and one-half week jury trial in Seattle, WSHB achieved unquestionable victory in a complex environmental exposure matter, involving a large, county-owned landfill. Partner Timothy Repass served as lead trial counsel, and successfully argued that the landfill operations and alleged fugitive gas emissions did not cause the impacts claimed alleged by multiple homeowners. Plaintiffs claimed inverse condemnation, nuisance, negligence, and other causes of action related to the failure of a landfill pipeline, and also alleged landfill operation deficiencies and fugitive emissions of landfill gas. Multiple homeowner Plaintiffs were represented by Brad Jones and Stephen Tan, and their respective law firms, out of Seattle. WSHB’s client was the sole defendant at trial.

In a commercial landlord-tenant subrogation action by the landlord and commercial business association’s insurer, partner David Webster recently obtained summary judgment for our client, The Wooden Duck, a long-standing furniture manufacturer and seller in Berkeley. The subrogation action followed a building fire that destroyed our client’s leased warehouse space and other property and personal property of three other entities. Plaintiff insurer issued a property damage policy to the Association that owned and maintained the common area building components and the landlord that leased space to our client. The successful Motion for Summary Judgment was brought under California’s case-by-case anti-subrogation law which provides that lessees cannot be sued for subrogation as deemed implied co-insureds under the policy based on specific language in the lease agreement.

On September 19, 2017, WSHB client Fetzer Vineyards received a resounding trial victory in a trademark action brought by Sazerac Company. In its lawsuit, Sazerac alleged that Fetzer Vineyards’ bourbon barrel aged 1000 Stories wine, which depicts a buffalo image, was confusingly similar to Sazerac’s Buffalo Trace bourbon whiskey, which also depicts a buffalo image. In a 35-page ruling, following a week long bench trial, U.S. District Court Judge William H. Orrick agreed with virtually every argument advanced by the defense, including that the Buffalo Trace brand lacked the requisite distinctiveness, that the two products are not confusingly similar, and that Sazerac failed to demonstrate any harm. “In the final analysis,” wrote Judge Orrick, “this case was not close.”

In Johnson v. Open Door Community Health Centers, decided on September 11, 2017, the California Court of Appeal held that the Medical Injury Compensation Reform Act's ("MICRA") (Code Civ. Proc., § 340.5) one-year statute of limitations for professional negligence applies only when the injury's legal cause relates to the "rendering of professional services," and not to ordinary negligence claims. This decision limits the reach of MICRA's one-year statute of limitations to injuries caused by a breach of a duty owed exclusively to the patient during the rendering of professional services, rather than the public at large.

In a high-exposure personal injury case where Plaintiff asserted that one of the nation’s largest residential builders was liable for the defective design of an intersection in the City of Los Angeles, WSHB successfully obtained a dismissal on summary judgment, arguing that the builder did not control the intersection and was not responsible for its design.  

In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, decided on June 19, 2017, the United States Supreme Court, in a majority opinion joined by eight justices and delivered by Justice Samuel Alito, reversed the California Supreme Court's decision to allow the state to exercise specific personal jurisdiction over defendant, Bristol-Myer Squib Co., in a mass tort action for injuries allegedly caused by their blood thinning drug, Plavix, to entertain the non-California residents' claims. As Justice Sotomayor notes in her dissent, this decision highly limits the ability of plaintiffs to consolidate their tort actions against a corporate defendant. As such, the Court effectively limits the reach of personal jurisdiction over a defendant in any state court in which the plaintiff's injury did not "arise out of or relate to" the defendant's contacts with that state.

The Americans with Disabilities Act, which was first enacted in 1990 (long before the Internet, smart phones, and social media ruled our world), recently joined us on the fast-paced trek into the digital age. The Southern District of Florida has put a new twist on traditional notions of ADA “accessibility” by ruling that Winn-Dixie's failure to make its website accessible to visually impaired users violates the right to accessibility contained in Title III of the Act. In Juan Carlos Gil v. Winn-Dixie, 2017 WL 2547242 (S.D. Fla. 2017), long-time Winn-Dixie patron, Juan Carlos Gil, a legally blind individual, brought suit against the grocer after finding that his commonly used screen reader software was not compatible with Winn-Dixie's website. Mr. Gil wanted to use the website to order his prescriptions online, as well as have access to digital coupons.

In a closely watched case, a San Diego jury rejected a $12 million demand from two plaintiffs who claimed substantial injuries. Veteran trial lawyer Wyeth Burrows successfully argued that the chronology of events demonstrated the accident was not a substantial factor in the need for the ensuing medical treatments.

In a recent Appellate Court case, the Court held that a plaintiff/appellant's doctor's note, with no affidavit or testimony properly authenticating it, violates Rule 1:6-6 and cannot be relied upon to establish a disability under the New Jersey Law Against Discrimination (LAD). Furthermore, such evidence cannot be used to defeat summary judgment. The case is significant, as it raises the bar for a plaintiff's level of proof in disability discrimination cases. It also affirms a plaintiff's obligation to communicate his or her disability to an employer, as well as the duty to request a specific accommodation in order to make a successful failure-to-accommodate claim.

Executive decision makers typically rely on reports from managers, as well as their own observations and judgments, in making employment decisions. Based on the Baker court's ruling, decision makers should clearly document the reasons for their employment decisions, making it clear that the decision is not based on any discriminatory animus and is not in retaliation for an employee's protected act in order to avoid claims of personal liability against the decision maker.

In McCarrell v. Hoffman-La Roche, Inc., 2017 WL 344449 (Jan. 24, 2017), the New Jersey Supreme Court held that the New Jersey statute of limitations applied to a products liability claim brought by Andrew McCarrell, an Alabama resident, against, Hoffmann-La Roche, Inc. and Roche Laboratories, Inc., two New Jersey pharmaceutical companies. Under the New Jersey statute of limitations, the suit was timely, but under the Alabama statute, the claim was barred. Because Mr. McCarrell's complaint was timely, the New Jersey Supreme Court reversed the Appellate Division's dismissal of the action and reinstated the jury's verdict of $25,159,530.

The Colorado Supreme Court in In Re Goodman v. Heritage Builders, No. 16SA193, 2017 CO 13, --P.3d--, 2017 WL 778227 (Colo. 2017), held that third-party claims in construction defect cases are timely so long as the first-party claims are not time-barred and the third-party claims are brought either during the first-party litigation or within 90 days of judgment or settlement, regardless of whether the original statute of limitations or statute of repose on the original claim has expired. In other words, general contractors now have the ability to bring third-party claims against subcontractors without worrying about the two-year statute of limitations or the six-year statute of repose, and subcontractors arguably no longer have statute of limitations or statute of repose defenses in third-party actions.

In the continuing development of law in the interpretation of the California Right to Repair Act (California Civil Code sections 895, et seq (“SB 800”), the Fourth District Court of Appeal held on February 10, 2017, that a homebuilder must acknowledge a homeowner's notice of claim within the 14 day period provided in the statute, even if the Notice of Claim is insufficient under California Civil Code section 910. If the builder fails to provide a written response within this time, the homeowner is released from the requirements of the Act and can proceed directly to litigation.

In a dangerous condition of public property claim, partner Greg Amundson recently obtained summary judgment in favor of the City of Long Beach. A motorcyclist that became paraplegic alleged that a traffic sign blocked the view of a driver, who pulled out in front of him when he entered an intersection. Amundson drafted the successful Motion for Summary Judgment on behalf of the City based on Government Code § 830.6, which provides public entities with design immunity. The successful motion was a joint effort with the City Attorney's Office against personal injury firm, Panish Shea & Boyle LLP.

Each year at this time, we look back at the cases, studies and other developments which have impacted mold personal injury litigation over the last twelve months. After more than a decade and a half of legal battles over which personal injuries can be attributed to mold exposure, the parties liable for those injuries, and the extent to which mold is a health risk, controversies remain.

This case is important to all participants in residential construction defect litigation as it outlines the burden of proof against a material supplier for violations of the residential construction standards within the SB 800 Right to Repair Act (Civil Code § 895, et seq.) Therefore, while the case specifically dealt with a direct claim by a homeowner association against a material supplier, the same burden of proof would be required for a cross-complaint brought by a developer or a subcontractor against the supplier. This ruling will make it more difficult to pursue claims against material suppliers by requiring a showing that the violation was caused by the material supplier's negligent act or omission or breach of contract.

This decision clearly recognizes that homeowners cannot abrogate a builder's right to repair their home simply by omitting a cause of action for violation of the Act. The court recognized that a builder has the absolute right to repair. This ruling furthers the right of builders throughout the state to repair homes to avoid litigation. There is no question that homeowners must first give notice of any defect related claims to the builder, and must afford the builder a reasonable opportunity to remedy the defects before they can file suit.

Last week, the California Supreme Court announced a decision that could modify the way big brokerage real estate firms handle business. In a case of first impression, the Court held that a brokerage company who represents both the buyer and the seller in a real estate transaction owes a fiduciary duty to both parties, even if different agents represent the parties. It is well settled law that an agent who represents both the buyer and the seller owes a fiduciary duty to both parties. In Horiike v. Coldwell Banker, however, the Court extended the fiduciary duty to brokerage companies.

Effective August 10, 2016, Colorado began enforcing C.R.S. §24-34-402.3: the Pregnant Worker’s Fairness Act. Under this Act, Colorado employers must provide a reasonable accommodation to employees who are pregnant, or who are recovering from childbirth. Notably, the Pregnant Worker's Fairness act applies to all employers, even those with only one employee, unlike the ADA which only applies to businesses with 15 or more employees.

Following a 28-day trial, a Los Angeles jury returned a defense verdict for a defendant professional property manager involving complex claims of bodily injuries and economic damages in a sewage and mold exposure case. Peter J. Burfening, Jr., of WSHB represented the defendant property manager.

The New Jersey Supreme Court, in an unpublished opinion, upheld a $2.5 million award to two brothers, including a combined $1.4 million in emotional distress damages, in an alleged race-based Law Against Discrimination (LAD) case. The holding is significant, as it confirms New Jersey's long-standing rule that courts must exercise remittitur, the power to reduce a jury's award, with great restraint, and that a jury's award is given deference, particularly because the jurors were attentive throughout trial, understood their charge, and carefully apportioned damages. Further, the decision rejected two methods previously used by the trial courts in deciding remittitur motions: the comparative analysis method, and the "feel for the case" standard, affirmed in He v. Miller, 207 N.J. 230 (2011).

The answer to this certified question could profoundly impact the number of construction defect lawsuits filed in Florida, as well as the availability and price of CGL insurance for contractors. If a 558 notice is not a suit triggering a duty to defend, those in the construction industry might decline meaningful participation in the 558 process, and instead invite litigation in order to secure their insurer's contribution. On the other hand, imposing a duty on insurers to defend during the Chapter 558 process would necessarily involve a significant outlay of attorney's fees and costs, potentially driving up premiums in the process.

On August 4, 2016, New Jersey's highest court affirmed a ruling that consequential damages resulting from a subcontractor’s faulty work constituted “property damage” caused by an “occurrence” under the property developer/general contractor’s commercial general liability policies pursuant to ISO's 1986 standard commercial general liability ("CGL") form. Cypress Point Condo. Ass'n, Inc. v. Adria Towers, L.L.C., No. 076348, 2016 WL 4131662 (N.J. Aug. 4, 2016). The Supreme Court's decision in Cypress is significant to carriers and policyholders alike, as New Jersey has joined the current majority of states holding that construction defects causing consequential damages give rise to an “occurrence” and “property damage” under the 1986 ISO CGL policy.

Congratulations to our dedicated litigation team in Las Vegas! This most recent WSHB victory involved a plaintiff motorcyclist who sued our client, a well respected national security company, and its security officer (who was driving a company vehicle on a patrol route).

Following a two week arbitration in Maricopa County, Arizona, partner Greg Amundson successfully defended all claims sought by the owners of fifteen (15) single family homes in favor of the selling entity of an Arizona residential developer and general contractor. Specifically, the Arbitrator issued a decision which completely exonerated the seller from any liability for all of the claims.