Publications

In a case that serves as a critical reminder of the power and limits of absolute privilege in litigation, the Illinois appellate court recently upheld the dismissal of defamation claims in a complex legal dispute over the administration of New Market Tax Credit programs. When accusations fly and reputations hang in the balance, the line between protected legal maneuvering and actionable defamation can be razor thin. This case illustrates the scope of absolute privilege, which can shield certain statements made in the course of litigation and explores when inflammatory statements and claims cross into illegal territory. By examining the consequences of reckless assertions and potential untruths in the course of legal proceedings, this ruling places the spotlight on the importance of absolute privilege as a potential defense and clarifies what is required to secure relief for defamatory litigation-fueled allegations.

Florida was once a hotbed for punitive damage awards, earning it a spot on the ATLA judicial hellhole report for several years. While tort reform has curbed many runaway verdicts, Florida remains a source of litigation concern. In the case of Orlando Health, Inc. v. Mohan, the Florida Fifth District Court of Appeal reviewed a decision granting punitive damages against a medical provider. Orlando Health, Inc. v. Mohan, 2024 WL 2484435 (Fla. 5th DCA May 24, 2024).The claim arose from a medical malpractice case arising out of a wrong site surgery. The appellate court affirmed the trial court's decision to allow punitive damages for gross negligence but reversed the ruling regarding negligent credentialing, as the medical provider could not be held responsible on that front since its agent had been exonerated.

In a lesson on the importance of timely claims, the Appellant Division, Second Department in New York dismissed a homeowner's breach of contract suit over alleged construction defects in her basement remodel. The case, Hillaire v. Jose A. Torres, ___ N.Y.S.3d ___, 2024 WL 3281628 (2d Dep’t 2024), involved claims that the defendant botched a flooring installation back in 2015. Since the plaintiff filed their lawsuit nearly seven years after the work was completed- well past New York's six-year statute of limitations for breach of contract- the complaint was ruled too little, too late. The court's decision also made it clear that pandemic-era extensions to filing deadlines, while generous, did not save this claim.

In a complex intersection of civil and criminal law, the Texas Supreme Court recently addressed an interesting Fifth Amendment application to civil discovery proceedings. The case arose from a personal injury lawsuit filed by plaintiffs who sustained injuries when their vehicle was rear-ended by the defendant, Taylor Brock Peters. Following the accident, Peters faced not only civil liability but also criminal charges for two counts of intoxication assault with a motor vehicle. During discovery, the trial court ordered Peters to disclose the establishments that served him alcohol on the night of the accident. Peters refused, invoking his Fifth Amendment right against self-incrimination.

Significant amendments to Florida's rules of civil procedure are on the horizon, taking effect on January 1, 2025. The amendments will impact a variety of areas, ranging from pretrial discovery and motion practice to judicial case management, and trial continuances. The changes issued by the Florida Supreme Court are designed to streamline civil case administration, better ensure timely judicial decisions, and generally improve efficiency in civil litigation. Notably, the rules introduce new standards for complex cases, deadlines for discovery, and changes to trial procedures. Attorneys and legal professionals practicing in Florida should familiarize themselves with these developments to navigate the new procedural landscape effectively. Although the amendments are intended to bring improvement, many of these changes are likely to be marred by early growing pains for practicing attorneys as well as the judges who are already under extreme pressure associated with court dockets already saturated from the influx of new case filings that were spurred by recent tort reform.

As evidenced by recent events as well as trends over the last decade, the risks of political turmoil and civil unrest are drastically increasing. These risks range from terrorist acts to protests and civil commotion to riots to looting and vandalism. Strikes, riots, and civil commotion (SRCC) threats, as they are characterized in insurance policies, not only pose a significant danger to the public but are also estimated to cost businesses millions of dollars every year. Although insurance carriers have traditionally included SRCC coverage as part of a standard policy, the increased frequency and severity of these risks have made this practice impracticable.

In the noteworthy case of Bonilla v. Verges Rome Architects, 382 So. 3d 62 (La. 2024), the Supreme Court of Louisiana addressed a key issue surrounding the limits of an architects and contract administrator's contractual obligations in construction projects. The case stemmed from a serious injury sustained by a subcontractor's employee during a demolition project. The plaintiff filed a negligence claim against Verges Rome Architects ("VRA"), the architect and project's contract administrator, alleging that VRA owed a duty to ensure workplace safety. The Supreme Court, however, determined that no such duty existed under the terms of the construction contract or Louisiana law regarding the interpretation of contracts.

Recent investigations into construction injury lawsuits in New York City have exposed alarming trends that raise serious questions about the integrity of the legal system. An unsettling pattern has emerged: a high concentration of injury claims from residents of specific apartment buildings and neighborhoods, all linked to a small number of law firms. This phenomenon coupled with powerful RICO actions brought by Tradesman and the ripple effects not only suggests the possibility of widespread fraud but also threatens the socio-economic stability of New York's legal and insurance landscape

In a recent, pivotal decision, Stone v. Alameda Health System, the Supreme Court of California held that public employers are not subject to civil penalties pursuant to California’s Private Attorney General Act of 2004 (“PAGA”) and that the California meal and rest break laws at issue in the case do not apply to public agencies. The Court further clarified that Labor Code section 220(b)’s definition of “municipal corporation” includes all public employers.

In a notable decision, the Oregon Court of Appeals recently declined to allow a defendant to pursue a comparative fault defense in a habitability lawsuit. By way of summary, Ms. Thomas, the Plaintiff, was a tenant in a duplex owned by Dillon Family Limited Partnership, the Defendant. The refrigerator in Plaintiff’s apartment began to leak water leaving puddles that extended into her adjacent living room. Thomas v. Dillon Family Limited Partnership II, 319 Or. App. 429, 420 (2022). Plaintiff indicated that she was having to mop puddles up at least twice a day. Id. 

In a significant shift, The California Supreme Court in Quach v. California Commerce Club, Inc., has aligned state law with a recent development in federal precedent, eliminating the arbitration-specific prejudice requirement when determining waiver of the right to enforce arbitration agreements. Historically, both California and federal courts required a showing of prejudice to establish waiver in the context of arbitration, a standard rooted in a policy favoring arbitration over litigation. However, following the U.S. Supreme Court's ruling in Morgan v. Sundance, Inc. (2022) 596 U.S. 411, which clarified that arbitration agreements should be treated like any other contract, the California Supreme Court has now repealed its prejudice requirement. This decision underscores the principle that arbitration agreements are placed on equal footing with other contracts, ensuring that waiver determinations are based solely on general contract law principles.

As the construction industry continues to thrive, it also grapples with numerous challenges that have the potential to impact project timelines, budgets, and overall success. The key issues of project delays, labor shortages, supply chains, increased costs, and expanding timelines create challenging claims, and coverage dilemmas that plague the claims process. This article looks at some of the bigger issues affecting the construction industry, and what we can expect going forward into 2025.

In the ongoing matter of North River Insurance Company v. James River Insurance Company, the Ninth Circuit recently turned to the Nevada Supreme Court to resolve an important legal question that could determine the outcome of a recurring dispute between insurers. The case arises from a wrongful death lawsuit following a murder at a Las Vegas apartment complex. The settlement exceeded the primary insurer’s policy limits, but it remained within the combined limits of both the primary and excess insurers. The excess insurer, after covering the remainder of the settlement, filed suit against the primary insurer in California federal court, claiming a breach of its duty to settle as well as the implied covenant of good faith and fair dealing. The primary insurer moved to dismiss the claims on the grounds that Nevada does not recognize equitable subrogation as between a primary insurer and excess insurer, and the district court (Central District of California) granted the motion. The excess insurer appealed to the Ninth Circuit Court of Appeals, who in turn, sought clarity on whether Nevada law permits equitable subrogation between insurers in such cases. Specifically, the Ninth Circuit certified the following question to the Nevada Supreme Court pursuant to Nev. R. App. P. 5(a), stating that the answer to the certified question is essential to the outcome of the case:

Under Nevada law, can an excess insurer state a claim for equitable subrogation against a primary insurer where the underlying lawsuit settled within the combined policy limits of the insurers?

In Limprasert v. PAM Specialty Hospital of Las Vegas LLC (2024), the Nevada Supreme Court addressed two critical issues concerning claims for professional negligence in Nevada. First, it clarified the standard for distinguishing professional negligence claims (which requires a supporting affidavit from a medical expert under NRS 41A.071) from ordinary negligence claims. This clarification effectively overruled the common knowledge exception previously established in Estate of Curtis v. South Las Vegas Medical Investors, LLC, 136 Nev. 350, 466 P.3d 1263 (2020). Second, the court confirmed that pursuant to Baxter v. Dignity Health, 131 Nev. 759, 357 P.3d 927 (2015), NRS 41A.071, the affidavit requirement was satisfied if it was incorporated by reference in the complaint and executed before the complaint was filed.

The Court of Appeal just issued a groundbreaking case in Audish v. Macias (2024) 102 Cal.App.5th 740 (review denied August 21, 2024), which provides welcome relief to the defense community with respect to its ability to establish the reasonable market value of past and future medical treatment claimed by personal injury plaintiffs. The case is important for at least two reasons: (1) it bolsters the import of Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, which held, in a medical malpractice case, that future Medi-Cal and other insurance benefits are admissible for determining the reasonable value of medical services; and (2) it provides a rebuttal case to language in Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, which rejected the notion that future Medicare/insurance benefits are admissible to establish the reasonable value of medical services.

In an important ruling for commercial property owners, the New Jersey Supreme Court in Alejandra Padilla v. Young II An, (A-43-22) addressed the owners' obligations regarding the maintenance of public sidewalks and answered the question: Do owners of vacant commercial lots have a duty to maintain adjacent public sidewalks in reasonably good condition?

In a ruling that has significant implications for the construction industry, the Massachusetts Appeals Court in Lessard v. R.C. Havens & Sons, Inc., recently clarified the scope of coverage under commercial general liability (CGL) insurance policies concerning construction defects. For the first time, the court determined that construction defects, standing alone, do not qualify as "property damage" under these policies. This decision that could reshape the landscape of liability for contractors and homeowners alike, potentially altering how parties approach risk management, contract negotiations, and insurance underwriting. As the industry grapples with the ramifications of this ruling, stakeholders may need to reconsider their legal strategies and the allocation of responsibility in construction projects. This landmark decision not only shifts the understanding of what constitutes insurable damage, but also sets a precedent that could influence future legal interpretations and coverage disputes across the nation.

In a new arbitration-related ruling, a California court in the case of Cook v. University of Southern California, found that an arbitration agreement requiring an employee to arbitrate all claims, even those not arising from the employment relationship, for an infinite amount of time, was unconscionable and entirely unenforceable. The decision arose from a lawsuit in which the plaintiff alleged discrimination and harassment by her employer and two co-workers. Despite the defendants' collective motion to compel arbitration based on an agreement signed by the plaintiff as a condition of employment, the court denied the motion, citing the purportedly pervasive unconscionability of the agreement. The defendants appealed the decision.

In a recent legal battle before the Connecticut Supreme Court, a plaintiff challenged her employer's handling of a hostile work environment claim after facing racially discriminatory statements from a coordinator in her department. O'Reggio v. Commission on Human Rights and Opportunities et al., highlights the complexities of defining supervisory roles and the implications for vicarious liability in discrimination cases.

In a significant ruling, Texas Department of Insurance et al. v. Stonewater Roofing, Ltd., Co., 2024 WL 2869414 (June 7, 2024), the Texas Supreme Court upheld state regulations mandate licensing for public insurance adjusters and prohibit dual roles as both a contractor and adjuster. This decision came after Stonewater Roofing, a roofing contractor, challenged the constitutionality of these regulations, arguing they violated First and Fourteenth Amendment rights. The court's decision has critical implications for insurers and contractors, reinforcing the legal boundaries within which they must operate.

In a unanimous decision, the United States Supreme Court recently delivered a significant opinion in maritime law. The holding in Great Lakes Insurance SE v. Raiders Retreat Realty Co, LLC, No. 22-500 stands for the proposition that choice-of-law clauses in maritime contracts are presumptively enforceable under federal maritime law, subject only to very narrow limited exceptions

On June 18, 2024, Governor Gavin Newsom and several labor and business groups came to an agreement regarding the future of the highly contentious California Private Attorney General Act known as PAGA. The agreement proposes to pass bipartisan legislation amending the statute. Should the legislation pass, the agreement would successfully halt a November ballot initiative for the voters which proposed eliminating PAGA altogether. To date, the agreement has been welcomed by businesses who have long criticized widespread, abusive, and costly PAGA litigation. Although the proposed amendments add to a business's quiver of possible defenses, it remains to be seen how effective these will be, and we do not expect the amendments to halt the avalanche of PAGA litigation statewide.

The recent Illinois appellate case of King v. El Paraiso Del Pacifico, Inc., 2024 IL App. (2d) 230026, has raised important considerations regarding the duty of care businesses owe to their patrons, particularly in relation to accidents caused by out-of-control drivers. In this case the court held that a car crashing through the front entrance of a restaurant was reasonably foreseeable and not an “intervening or superseding” cause of a patron’s injuries. The court determined that the accident fell within the scope of the business's duty of care. This decision is of high importance because previously the Illinois Supreme Court found there was reluctant to impose a duty to protect invitees against out-of-control drivers. This article will delve into the facts of the case, highlight the significance of this decision, and discuss its implications for businesses and insurance carriers in the state of Illinois.

The New Jersey Supreme Court recently ruled unanimously that standard commercial property insurance policies do not cover business interruption losses caused by the COVID-19 pandemic, aligning with many other courts around the country. The case, AC Ocean Walk, LLC v. Am. Guarantee Liab. Ins. Co. _ N.J._ (Jan. 24, 2024), centered around a casino operator in Atlantic City who claimed losses due to the presence of COVID-19 particles on its premises and the resulting governmental shutdown of its operations.

How do you define the term "contractor?" In the case of California Specialty Insulation Inc. v. Allied World Surplus Lines Insurance Company, No. B324805 (2024), the court ultimately honored the reasonable expectations of the insured and ordered that the insurer defend and indemnify in an underlying suit stemming from the policy. This case involves a commercial general liability insurance policy issued by Allied World Surplus Lines Insurance Company (Allied) to California Specialty Insulation, Inc. (CSI). The central issue is whether Allied World is obligated to defend and indemnify CSI against a negligence claim stemming from a construction site accident. The dispute hinges on the interpretation of a policy exclusion for bodily injury to employees of any "contractor," a term not defined in the policy.

The Communications Decency Act, codified at 47 U.S.C. Section 230, has long been a foundational tenet of law governing the internet, providing crucial protections for online platforms. However, it is under intense scrutiny once again as the law faces significant re-examination and potential reform. The new legislation proposes to sunset Section 230 during the final week of 2025, effectively setting a timer on Congressional action and giving lawmakers only eighteen months to establish a new standard for liability. This legislative move seeks to address mounting concerns about the role of online platforms in hosting and moderating user-generated content. At the crux of the issue is whether online platforms can be held responsible for the content that users post.

In the case of Pine Management v. Colony Insurance Company, 23-624-cv (2dCir. Mar. 26, 2024), the United States District Court of the Southern District of New York provided essential guidance regarding when a pre-suit demand constitutes a claim triggering the obligation to notify your liability insurer under New York law.

The recent ruling from the New York Court of Appeals has broadened the protective umbrella of Labor Law 241(6), deeming a plastic covering a foreign substance as defined in Industrial Code section 23-1.7(d). Additionally, the court determined that the presence of the plastic covering did not qualify as an integral part of the work, highlighting the defendant's responsibility in creating an "avoidable danger." This opinion presents a significant challenge for defendants as it raises the risk of liability for owners, contractors, and their representatives in construction site accident cases. The case of Bazdaric v. Almah Partners LLC, 2024 NY Slip Op 00847 (decided on February 20, 2024), centers on a workplace injury that occurred while an employee was completing a painting project. The plaintiffs sought damages for injuries that resulted from a slip and fall on a plastic covering placed over the top of a stopped escalator.

In the complex world of property ownership and community governance, conflicts often emerge concerning the responsibilities of condominium associations versus individual unit owners. In Canner v. Governors Ridge Ass'n, 348 Conn. 726(Conn. Apr. 2, 2024), the Connecticut Supreme Court offered important insight regarding the intricate web of obligations outlined in Connecticut’s Common Interest Ownership Act (CIOA), as well as the relevant statute of limitations analysis governing such claims. The plaintiffs raised concerns over the allegedly defective foundations of their units within a common interest community. Central to the plaintiffs' argument were assertions of negligence in design and construction, coupled with the association's purported failure to uphold its duties under CIOA. Conversely, the defendant condominium association invoked a statute of limitations defense, contending that the plaintiffs' claims were time barred. This case not only underscores the often complex interplay between contractual and tortious obligations, but also highlights the role of statutory interpretation in resolving disputes within common interest communities and clarifies the statute of limitations applicable to such claims.

Colorado's housing market is currently a battleground for legislative proposals aimed at addressing affordability challenges while balancing construction industry concerns. Amid the state's affordable housing shortfall and prospective buyers contending with stubbornly high interest rates and escalating borrowing expenses, the state is exploring diverse avenues to combat the state's housing challenges. As part of this push for reform on both sides, two competing bills are currently pending in the General Assembly, SB 24-106 and HB 24-130. Each have the potential to significantly alter the landscape of construction industry operations in Colorado.

On December 29, 2023, New York Governor Kathy Hochul vetoed the revised S74A "Grieving Families Act" for the second time since its inception over a year ago. The law was aimed at substantially expanding compensable damages in wrongful death actions.