Professional Liability

Professional liability claims can be an enormous distraction and destructive to a professional’s reputation and future earnings.

WSHB’s Professional Liability Group understands the nuances of professional liability and develops the strongest defense in these complex cases. To secure optimal results, we integrate a unique blend of strategy and client collaboration to address the myriad issues that arise in professional malpractice claims.

With experience in all aspects of professional liability defense, we understand sensitive confidentiality issues and a claim’s potential impact on a professional’s ongoing practice. Whether retained by the professional directly or by an insurance carrier, we handle litigation on behalf of commercial, corporate, nonprofit, and individual clients regarding almost any professional liability issue, including:

• Unfair competition
• Contractual claims
• Partnership matters
• Claims of malfeasance and breach of duty

Attorneys

We represent sole practitioners and law firms of all sizes in cases involving varied underlying actions and transactions. Our extensive knowledge of the legal profession enables us to astutely handle sensitive issues of client confidentiality and reputation.

Architects and Engineers

In addition to architects and engineers, we also represent developers, general contractors, and design professionals. Our experience includes claims arising out of alleged errors and omissions related to the provision of professional services, negligence, and misrepresentation.

Real Estate Brokers and Agents

We represent local and national real estate brokers and agents in residential and commercial matters. Our clients include many of the country’s largest and preeminent land developers, owners, and commercial contractors.

Insurance Brokers and Agents

We represent insurance brokers and agents in actions involving errors and omissions allegations. We have expertise in the immense variety of insurance coverage contracts and in defending bad faith claims against brokers and agents.

Directors and Officers

We have experience and expertise in defending claims against corporate directors and officers. We also defend corporate clients in class-action claims.

Computer and Media Professionals

We represent individual and institutional computer and media professionals in contractual and licensing disputes and in litigation arising from entertainment ventures. We specialize in representing entertainment clients in suits involving professional malpractice, intellectual property rights and tort liability.

• A former client sued his attorney, our client, after an adverse verdict during a federal trademark trial.  After filing two challenges to state court jurisdiction, the plaintiff voluntarily dismissed the case and refiled in federal court, after the statute of limitations had expired.  We then filed a motion to dismiss in federal court based upon a recently decided U.S. Supreme Court decision confirming that the federal courts do not have subject matter jurisdiction over legal malpractice cases simply because the underlying suit involved federal patent or trademark issues.  The federal court agreed and dismissed the case.  Since plaintiff voluntarily dismissed the case in state court after the expiration of the statute of limitations, his case was time barred.
• In a case where WSHB lawyers represented an insurance agency and its brokers, Judge Brandveen of the Supreme Court of Nassau County, New York, denied plaintiff’s motion for summary judgment and granted summary judgment on behalf of WSHB’s lawyers. The Court held that the documents and plaintiff’s own testimony supported a finding that the broker procured the type of insurance that the plaintiff expressly requested from the broker. The Court further held that there was no special or privity-like relationship between the plaintiff and the insured, and as such, it did not impose a heightened duty on the broker.
• In a case where WSHB lawyers represented a Third Party Administrator of a Pension Plan, District Judge Richard Sullivan in the U.S. District Court for the Southern District of New York granted WSHB’s motion and dismissed all claims against the client. DJ Sullivan agreed with WSHB’s argument that the Insured was not a fiduciary of the plan, and had no legal obligation or duty to provide Plan documents or to issue benefits. The Judge also found in favor of WSHB’s client by further holding that the federal ERISA statute preempted plaintiff’s common law claims, and that the claims were untimely.
• In a case in Supreme Court of Nassau County, New York, WSHB lawyers obtained dismissal of its clients, a life insurance agent and his insurance agency. Plaintiff alleged that our clients wrongfully advised the plaintiff to procure life insurance policies as a tax planning vehicle for an estate, which railed to accomplish the intended purpose and caused the estate to incur $60M in damages. The allegations relate to the sale of four life insurance policies from four different life insurance carriers, involving different trusts and trustees, beneficiaries and face values. The Third Party Plaintiff asserted claims of fraud, conspiracy to commit fraud, unjust enrichment, and gross negligence against the clients. The total face value of all of the policies was $38M, and the Third Party Plaintiff alleged that the estate paid $16M in premium payments. The Third Party Plaintiff also named lawyers, tax advisors, life insurance carriers and other life agents and alleged that they were also liable for damages resulting from the purchase of unsuitable life insurance policies. WSHB moved to dismiss on the grounds that the Third Party Plaintiff, as a beneficiary of the life insurance proceeds, lacks standing to sue its clients because, pursuant to NY law, any such suit must be brought by the individual insured under the life insurance policy, or the insured’s estate if the insured died. WSHB also moved to dismiss the fraud and breach of fiduciary duty claims for failure to state a cause of action pursuant to CPLR 3211(a)(7), and moved to dismiss the breach of fiduciary duty and unjust enrichment claims on statute of limitations grounds pursuant to CPLR 3211 (a)(5). In its Decision and Order, the Court agreed with our argument that the Third Party Plaintiff, as a beneficiary of the life insurance proceeds, lacked standing to sue the clients because NY law requires any such suit to be brought by the individual insured under the policy, or the insured’s estate if the insured died. As such, the Court dismissed all claims against WSHB’s clients.
• WSHB lawyers obtained a dismissal before the U.S. Court of Appeals for the Second Circuit, in a case in which the plaintiff alleged wrongful denial of his request for long-term disability benefits by the firm's client, pursuant to ERISA. The firm moved for summary judgment in District Court on the ground that the action was time-barred by language in the policy requiring that policyholders commence legal actions within three years of the date that a proof of loss is due under the policy. The plaintiff argued that the policy language was ambiguous and not permissible under New York law, which has a six-year statute of limitations for breach of contract actions. The District Court initially agreed with our arguments and granted summary judgment. The plaintiff subsequently made a motion for reconsideration, which was denied. Plaintiff then appealed to the Second Circuit. WSHB argued that, when afforded its plain meaning, the policy language is clear and unambiguous and that New York Courts have consistently held that parties can contract to reduce the statute of limitations from six years to three years. After oral argument, the U.S Court of Appeals agreed with the firm and upheld the District Court’s decision.
• We obtained a verdict in the Supreme Court of Danbury, CT, on behalf of her client, a Fortune 500 international electronics corporation, for $1.3 million in a commercial contract dispute involving solar energy panels. The defendant, a solar energy company, purchased solar panels from plaintiff, WSHB’s client. The defendant paid a small deposit for the panels but refused to pay the balance of more than $1 million, claiming that the panels were defective. As a result, WSHB brought suit against the solar energy company alleging breach of the terms of a written contract for the purchase and sale of solar panels. The defendants brought counterclaims for rescission and violations of the Connecticut Unfair Trade Practices Act. At trial, the firm presented documentary and testimonial evidence that the electronics company delivered solar panel units to the defendants, and that the solar panels met the specifications for energy output outlined in the contract and marketing materials. In addition, WSHB established the validity and enforceability of a ‘personal guaranty’ addendum to the contract signed by the owner of the solar energy company, enabling them to hold the owner of the defendant company personally liable.
• WSHB won a motion to intervene and enforce a class action settlement on behalf of a securities broker in a matter venued in the United States District Court for the Southern District of Iowa, Central Division. Initially, the claimant commenced a securities arbitration in the Financial Industry Regulatory Authority (“FINRA”) against the respondents, a broker-dealer and one of its registered representatives, alleging that the respondents recommend that the claimants purchase securities products that were overly risky and illiquid, and therefore unsuitable for his risk tolerance and financial status. Following discovery, the respondents learned that the claimant had already been part of a class action lawsuit against the same broker-dealer involving different securities products. After further investigation, the respondents learned that the class action settlement agreement included language precluding the claimants from bringing claims against the broker-dealer and/or its agents relating to any securities products sold to him through the date of the agreement. Based on this information, WSHB moved to intervene in the class-action lawsuit, moved to enforce the terms of the class action settlement and requested a permanent injunction enjoining the claimant from pursuing the FINRA action. The Claimants opposed the motion, alleging that the release language in the class-action settlement agreement did not cover the situation at issue, or in the alternative the language was overbroad and unconscionable. After a hearing, the court granted a permanent injunction precluding the claimants from pursuing the claims.
• WSHB obtained a defense award on behalf of our client, a securities broker, following an arbitration held in Milwaukee, Wisconsin. The award was featured in ArbCheck Reporter, a widely read publication in the securities industry. The claimants brought a FINRA arbitration seeking compensatory damages in excess of $780,000 against WSHB's client, three other brokers, and their broker-dealer. The claimants alleged that the respondents breached their fiduciary duties by failing to disclose material facts concerning the opening and closing of several brokerage accounts, and the purchase and sale of variable annuities. After a four-day hearing, the panel dismissed the claimants’ claims with prejudice in their entirety and stated in part: "The evidence introduced at hearing gave no indication that respondents violated any law, regulation or duty owed to claimants. The evidence also showed that claimants suffered no economic loss because of respondents management of their accounts, but instead gained value during the time period covered by the claims. Accordingly, claimants failed to demonstrate entitlement to monetary damages, and their claims were determined to be false." The panel also recommended that all references to the claims be expunged from the brokers’ records.

News

Events

“Defending Insurance Agent and Broker Failure to Procure Claims,” 13th Annual E&O Insurance Execusummit, Mohegan Sun, Uncasville, CT, October 30, 2019

“Emerging Risks for Insurance Agents and Brokers – Know Thyself and What You Sell/Buy,” Professional Liability Defense Federation Annual Conference, Chicago, IL, September 27, 2019

“Professional, D&O and EPL Issues Relating to Mass Shootings,” CLM’s 2019 Cyber, Management & Professional Liability Conference, Boston, MA, July 11, 2019

“Insurance Agents – Liability to Insurance Agents/Brokers – Life Agent Twisting Claims,” 12th Annual E&O Liability ExecuSummit, Uncasville, CT, June 20, 2018

“Miscellaneous Professional Liability – Insuring the New and Unknown,” 11th Annual E&O Liability ExecuSummit, Uncasville, CT, June 20, 2017

Publications

"How will COVID-19 Impact Insurance Agents/Brokers E&O; Minimizing Exposure During and After the Pandemic," PLUS Journal, Second Quarter 2020

“Call Me, Maybe: Update Regarding Liability for Debt Collection Phone Calls Under FDCPA,” Professional Liability Advocate, February 17, 2015

“A Check in the Win Column for Broker-Dealers,” Professional Liability Advocate, September 16, 2014