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WSHB's Constance Endelicato To Speak at ASHRM 2019 Annual Conference

Supreme Court Allows Suit Over Website Accessibility

Strategies for Defending Legionella and Mold Claims

Residential Revolution

Time Limit Demand Issues Arrive in North Carolina

WSHB Welcomes New Partner Julie A. Weerth to the Firm's New York Office

Temp Agency Absolved of Liability in Hotly Contested Action

Alternative Fee Agreements and Construction Issues: Oil and Water or Perfect Pairing!?

WSHB's Graham Miller Helps Demystify Construction Claims in the Pacific Northwest

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

WSHB Partner Jade Tran Named to Lawyers of Color's "Nation's Best" List

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

October 11, 2019

The widespread use of cell phones, "granny cams," and facility surveillance cameras has led to such viral controversies as the "Dancing Doctor" videos taken of a surgeon's dancing antics while operating on patients, or a nursing facility security camera capturing footage of elder abuse committed by a caretaker. This technology has not only led to an influx in litigation, it has rendered such negligent or intentional activity virtually indefensible. When uploaded to social media or even shared with others informally, the footage is at best, a public relations nightmare for health care systems. "With the ever-changing laws and the increasing damages potential for plaintiffs and their attorneys, we can expect the number of claims supported by videographic evidence to continue to escalate," said Constance Endelicato, Partner at Wood Smith Henning & Berman. "More importantly though, it is imperative to address what is causing the provider to behave in an abusive, discriminatory, or callous manner toward patients, placing patients at risk for safety and causing irreparable emotional and physical harm." ...

October 8, 2019

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. ...

September 30, 2019

Legionella is a bacteria that is naturally found in lakes, streams, and rivers. In nature, the bacteria doesn't pose much of a threat, but when it takes to man-made water systems such as shower heads, sink faucets, hot tubs, and plumbing systems, it gains the potential to become a major health concern, prompting numerous legal claims in their wake. The causes of such claims usually arise from cooling towers found in motels and hotels, cruise ships, hospitals, and office buildings. How are these types of claims handled and what can be done to avoid them in the first place will be front and center stage this week at the McGriff Real Estate Edge Conference. National thought leaders and leading experts Victoria Ersoff and Keith Smith, partners at the national law firm Wood Smith Henning & Berman, will be presenting strategies on how to best tackle, resolve and address all facets of issues presented when these issues arose....

Publications

Residential Revolution

September 25, 2019

On April 10, 2019, Gov. Doug Ducey signed into law legislation that will have a significant impact on construction-defect claims involving single- and multi-family homes in Arizona. Senate Bill 1271 amends the Purchaser Dwelling Act (PDA), A.R.S. 12-1361, et seq, and became effective on Aug. 26. The new changes will affect a builder's indemnification contractual rights, as well as attorney fees, notice to subcontractors, and homeowner affidavits. ...

September 23, 2019

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....

September 18, 2019

WSHB is pleased to announce that Julie Weerth has joined the firm as partner in its New York office. Ms. Weerth began her career as a litigator in New York, specializing in labor law and coverage litigation. She joined AIG in 2006, where she held positions of increasing responsibility, including Chief Underwriting Officer of Excess Casualty and Vice President of Complex Casualty Claims. ...

September 18, 2019

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. ...

September 11, 2019

In what promises to be a highlight of the CLM Construction Conference, a panel of highly acclaimed thought leaders will present on the cutting edge issue of alternative fee agreements in the context of construction claims. "One of the reasons this session is receiving heightened interest is the thought that AFA's (alternative fee agreements), in the context of construction claims, work in limited circumstances," said Stewart Reid, Firmwide Managing Partner of WSHB. Reid, who will be moderating the panel discussion, stated "we will be exploring truly novel and innovative strategies for employing AFA's not only in construction defect matters, but all issues surrounding construction including construction site injuries and more."...

September 11, 2019

WSHB's Portland based partner, Graham Miller, takes to the stage for CLM's Construction Conference where he will host a panel on "Demystifying Construction Claims in the Pacific Northwest." Drawing upon his ten years of construction litigation experience, Miller will discuss how to navigate construction plans and how to properly implement them into the litigation process. ...

August 19, 2019

WSHB Partner Janice Michaels was recognized in the 2020 Edition of The Best Lawyers in America© for her work in Litigation - Construction in Las Vegas, Nevada. Ms. Michaels has been bestowed this honor for the past four consecutive years. ...

August 8, 2019

Individual providers and healthcare organizations are dealing with the challenges of egregious intentional torts such as sexual assault by providers and other bad acts. It can be difficult to navigate the coverage issues, reservation of rights, need for medical board counsel, criminal counsel, and cumis counsel. WSHB Partner Constance Endelicato will explore all of these topics and more at a Southern California Association for Healthcare Risk Management (SCAHRM) in-person breakfast program on Tuesday, August 20, 2019 at The California Club in Downtown Los Angeles. Included in this lively discussion, Ms. Endelicato will also address the potential PR damage control for the facility and negligent hiring and supervision claims against the facility which can result in cross claim for indemnity. This presentation will prepare you to navigate these issues as well as discuss claims that seem to be false accusations....

August 8, 2019

(Dallas, TX) – WSHB is proud to announce the arrival of one of Texas's leading construction litigators, Cynthia A. Tari, to the firm's Dallas office. With over 25 years of experience litigating and arbitrating construction disputes, Ms. Tari's case handling includes breach of contract, negligence, professional malpractice, and lien/bond claims on both public and private projects....

August 7, 2019

Andy 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....

August 6, 2019

(Philadelphia, PA) – WSHB is pleased to announce that Andrew S. Kessler has joined the firm as partner in our Philadelphia, PA office. A skilled and talented litigator, Andy's practice focuses on medical malpractice, premises liability, construction, transportation, products liability, employment and professional liability, including financial institutions and credit unions. With an extensive background in medicine through his medical malpractice experience, Mr. Kessler is particularly adept in defending matters involving catastrophic injuries....

August 1, 2019

The New York State Assembly and Senate recently passed the Securing Wages Earned Against Theft ("SWEAT") bill to enable alleged employee-victims of wage theft to recoup unpaid wages by placing a temporary lien on the real or personal property of their employer(s). The union-backed bill is currently awaiting Governor Andrew Cuomo's signature in order to become law. SWEAT amends five sections of New York State law for the purpose of increasing the likelihood that victims of wage theft can secure payment of unpaid wages for work already performed. The justification for the bill is to eliminate exploitative employers from dissipating their assets or dissolving their businesses in a systematic effort to avoid paying wages they owe to their employees during a pending court action. Thus, SWEAT was passed to provide wage theft victims with a legal remedy – a lien to freeze an employer's assets – lest being unable to enforce and collect on a judgment for unpaid wages. ...

July 31, 2019

WSHB is proud to announce the arrival of its newest partner, Jason W. Williams, to the Firm's Nevada office. Long considered to be a "go-to" lawyer for complex construction defect disputes, Jason handles all facets of construction litigation spanning from single family disputes to commercial projects, from shovel to completion. He also is well regarded for his work in complex civil litigation and coverage issues....

July 31, 2019

WSHB's Nevada office recently welcomed the latest addition to their senior counsel class, litigator Richard Young. Known by developers and contractors throughout the State of Nevada for his prowess and sage guidance in handling all facets of construction litigation, Mr. Young has achieved success in all issues emanating from construction, from construction defect to employment....

July 24, 2019

In a commercial landlord-tenant subrogation action by the landlord and commercial business association’s insurer, Partner David Webster and Senior Counsel Eugene Zinovyev 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. ...

July 23, 2019

Seventeen lawyers from WSHB are recognized on this year’s list of 2019 Rising Stars®. The attorneys honored on this year’s list are 40 years or younger and demonstrate the finest qualities of a good lawyer: first-rate legal skills, preparation, judgment, creativity, dedication and ethics. No more than 2.5 percent of the lawyers in each state are named to the renowned Rising Stars list....

July 17, 2019

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....

July 16, 2019

Jason Klein, Managing Partner of WSHB's Colorado office, will bring down the house at American Technologies Inc's event "The Comedy and Tragedy of Claims" on Tuesday, August 20, 2019 at Comedy Works South, 5345 Landmark Place, Greenwood Village, CO 80111. At 10:30 a.m., Jason will share the stage with Terence Kadlec of Envista Forensics as they break down the good, the sad, and the funny sides of claims in a presentation titled "51 Shades of Gray, Ethics in Claims Handling."...

July 2, 2019

During the past year, multiple headlines and news alerts have captured the bad acts of an individual in the medical world which translates into high profile claims of sexual battery and other intentional act claims. In addition to navigating the publicity, political fallout and impact on reputation of the institutions involved, the aftermath of the litigation which ensues is huge. Constance Endelicato, a celebrated trial lawyer from the national law firm of Wood Smith Henning & Berman, will be tackling this difficult issue head on at a litigation conference of highly placed claim professionals, risk managers, general counsel and lawyers in the medical negligence area during the 2019 CLM Cyber, Management, and Professional Liability Conference which takes place at the Renaissance Boston Waterfront Hotel on July 11, 2019. ...

July 1, 2019

WSHB's Michelle Arbitrio will take to the stage at the 2019 CLM Cyber, Management, and Professional Liability Conference at the Renaissance Boston Waterfront Hotel on July 11, 2019 at 10:35 AM. This conference is a fully reinvented event that offers its participants unprecedented knowledge and access to leaders in the profession. Attendees will have a unique professional opportunity to share their expertise in partnership with other authorities from across the country while building relationships. WSHB is proud to be a Diamond Sponsor of this CLM event. ...

June 25, 2019

In the past year, high profile cases have emerged throughout the nation discussing management responses to allegations framed within the #metoo world. Strategies, perils and pitfalls which give rise to or minimize liability will be discussed at length during a widely anticipated presentation at the CLM Cyber, Management and Professional Liability Conference on July 11, 2019. National thought leader, Kelly Waters, Managing Partner of the New Jersey office of WSHB, will moderate a vigorous discussion of hot issues and practice pointers for those handling management liability issues throughout the country. ...

June 21, 2019

A panel of national thought leaders will address the hot topic of settlement versus trial in the context of a legal malpractice claim at the upcoming CLM Cyber, Management, and Professional Liability Conference at the Boston Waterfront Hotel on July 11, 2019. "Attorneys on the receiving end of a legal malpractice action likely have a decided opinion on whether to try or resolve the case," explained Phil Grennan, a nationally acclaimed litigator with the Seattle and Portland offices of WSHB. Grennan, who will lead the panel of thought leaders, explained "as retention's erode and reputations are on the line, the inclination to find justice and absolution collide with accolades to settlement."...

June 19, 2019

WSHB Partner Jade Tran (Orange County) has been named to Lawyers of Color's inaugural "Nation's Best" list, which recognizes law firm partners and senior-level corporate counsel. Selection is based on noteworthy accomplishments and a commitment to diversity and inclusion in the legal profession. Lawyers of Color is a 501(c)(3) non-profit devoted to promoting diversity in the legal profession and advancing democracy and equality in marginalized communities. ...

Publications

A Withering Assault

June 14, 2019

In September 2018, we assessed the impact of the headline-grabbing $289 million verdict delivered by a San Francisco jury in DeWayne Johnson v. Monsanto Company. Johnson, a former school groundskeeper, alleged that his occupational use of the glyphosate-based herbicide Roundup caused him to develop non-Hodgkin lymphoma (NHL). We predicted that the verdict would lead to more glyphosate lawsuits and an increased focus on toxic torts, but concluded that this result would not make glyphosates the next asbestos. As expected, the Johnson verdict was reduced to $78 million by a trial court and is now on appeal. But in the meantime, Monsanto, a unit of Bayer AG, was hit first with an $80 million judgment in federal court in the Northern District of California in Edwin Hardeman v. Monsanto Company, and then, more recently, with an eye-popping $2 billion verdict from the Alameda County Superior Court in Alva and Alberta Pilliod v. Monsanto Company. So the $2 billion question is, what does this mean for the future of glyphosate litigation and toxic torts in general? ...

June 14, 2019

Reports indicate that insured losses from the Southern California Woolsey fire will total at least $2.5 billion. The total economic loss from the Woolsey fire is estimated to be anywhere from $4 to $6 billion, according to Corelogic. The combination of expensive materials, a shortage in the construction workforce, and a high demand to rebuild will yield an expensive result. This event is shaping up to be another example of a trend: Because of the devastating amount of damage caused by fires, floods, and hurricanes, it will cost a lot more to rebuild than is covered under applicable insurance policies. When there is simply “not enough insurance,” the challenges to resolving claims successfully are exceedingly complex....

June 10, 2019

More than four years after comprehensive construction defect reforms were implemented in Nevada, Nevada's construction defect laws are changing again. On June 3, 2019 Governor Sisolak signed AB 421 into law. While AB 421 retains some of the 2015 reforms, a number of significant changes will go into effect on October 1, 2019. Here is a brief summary of the more notable changes which are likely to raise issues in litigated matters in the future....

May 31, 2019

The narrative regarding condo development in Washington State is well-known: It is almost universally accepted that the nearly 30-year-old condominium statute’s implied warranties provide unfair and uncertain standards that fueled near-certain litigation. Too often, these suits involve frivolous claims of "defects" in construction, which neither affected building performance nor were of material concern to any reasonable homeowner. Condo association board members feel pressured to sue or risk personal liability. Plaintiff attorneys capitalized on this low hurdle of a liability standard and seek heavily exaggerated repair costs. Developers, builders, and insurance carriers pay enormous sums for repair of technical violations, which often times are not repaired with the money paid to condo owners. All of this disincentivizes condominium developers and drives up the cost of condominiums for consumers. ...

May 8, 2019

WSHB co-founder Stephen J. Henning will take to the stage before thousands of builders, contractors, subcontractors, insurance agents and lawyers at West Coast Casualty’s 26th Annual Construction Defect Seminar, the biggest construction conference event in the country. Hosted at the Disneyland Hotel and Resort in Anaheim, California, Mr. Henning will be sharing his decades worth of construction litigation expertise alongside Matthew Kovacs of Markel Corporation and fellow attorneys Adrienne Cohen and Jannea Rogers in a panel presentation entitled, "Disaster in the Making – Litigation Impacts from Fire, Flood, and Hurricanes" on Thursday, May 9, 2019 at 10:45 a.m. ...

April 19, 2019

[Practices] must have policies and procedures in place that specifically address the prescription of opioid medication. The Centers for Disease Control (CDC) Guideline for Prescribing Opiods for Chronic Pain should be used as the model. A Quality Assurance program, including stand-up meetings among providers to discuss opioid patients, and a care coordinator specifically aimed at conducting monthly audits should be employed to monitor the prescriptions written by each of its members. ... The group must also carefully screen its members with ongoing checks as to disciplinary status, criminal and civil background, status of hospital staff privileges and personal health. ...

April 19, 2019

In the United States, 15% of our population is comprised of individuals over 65 years of age. That translates to approximately, 47.8 million people and as longevity continues to rise, so will that number. As an example, our aging population increased by 1.6 million between 2014 to 2015, alone. Over 5% of those over age 65 are residing in skilled nursing facilities or residential care facilities for the elderly. ...

April 15, 2019

WSHB's Sam McDermott will be speaking at CLM's Orange County Chapter Education and Networking Event on Thursday, April 25, 2019 at 6:00 p.m. Located at The Wine Artist in Lake Forest, McDermott will be discussing the use and applicability of structured settlements as a method of assisting in resolving claims and how IRS Code Section 104(a) excludes structured settlements from gross income that provides tax-free periodic payments to bridge a settlement gap when taxes reduce the total recovery. ...

April 4, 2019

Disruption in the construction industry, fuel for lawsuits in the future and perils and pitfalls for those handling litigation. This sentence captures what promises the content-rich presentation during the upcoming DRI Construction Conference in Las Vegas, Nevada. Nationally acclaimed attorney Stephen Henning will moderate a panel of thought leaders as they discuss the game changers which are playing out in courtrooms, newspapers and project sites throughout the nation, which give rise to emerging theories of liability, areas of exposure and sage risk management practice pointers. Joining Henning on the panel will be Phyllis Modlin from Markel Corporation, Linda Pretzel from RiverStone and Maria Quantaro with Hinshaw....

April 2, 2019

WSHB Partner Alicia Kennon will be moderating a panel entitled "He's Not My Guy: The Joint-Employer Doctrine" at DRI's Construction Law Conference on April 12, 2019 at 2 p.m. On the panel will be Jeffrey Koonankeil of CapSpecialty and Jennifer Stancil of Beazley Group. Included among the topics to be discussed are the latest developments in the joint-employer doctrine and the impact the doctrine's current version has on construction operations. The industry has been primarily concerned with avoiding or managing defect based litigation but now developers and contractors have new risk in the EPL space including wage/hour based claims, discrimination claims, harassment, and whistleblower based suits. In addition to highlighting the risks, Alicia and her co-panelists will offer attendees some practical tools for mitigating those risks for their clients and companies....

March 22, 2019

Employees in salaried positions earning under $35,308.00 annually will become newly-eligible for overtime pay if a new rule proposed by the U.S. Department of Labor is enacted. Employers with salaried positions under that amount should begin preparing to perform an audit of exemption classifications to ensure ongoing compliance in the event this rule is enacted. ...

January 1, 2019

US law firm WSHB and international law firm and legal service provider DWF announced on October 1, 2018 that they have agreed to an exclusive association. Through this association, the firms seek to offer greater global reach and service for their respective clients while working closely to share best practices, innovative ideas and mutually beneficial opportunities....

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