- Case Updates11.5.21
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
- Trial Results10.25.21
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.
- Washington State Supreme Court Weighs in on Spearin Doctrine and Limiting Contractor Liability for Construction DefectsCase Updates9.10.21
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.
- Case Updates9.8.21
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.
- Case Updates8.31.21
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.
- Trial Results8.13.21
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.
- Case Updates8.11.21
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.
- An Agreement to Toll under CEQA Requires the Input and Agreement of all Necessary and Indispensable PartiesCase Updates7.30.21
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.
- Case Updates7.26.21
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.
- Ninth Circuit Confirms that the DOL Cannot be Compelled to Arbitrate, Even if All Other Parties Signed a Private, Enforceable Arbitration AgreementCase Updates5.28.21
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.
- The Economic Loss Doctrine Does Not Bar Claims Under the Unfair Practices and Consumer Protection Law in PennsylvaniaCase Updates5.17.21The United States Court of Appeals for the Third Circuit considered the question of whether, under Pennsylvania law, a plaintiff's Unfair Trade Practices and Consumer Protection Law (UTPCPL) claim against a builder who constructed her home was barred by the economic loss doctrine. The UTPCPL prohibits, "unfair methods of competition and unfair or deceptive practices in the conduct of any trade or commerce." 73 Pa. Cons. Stat. §201-3. The Third Circuit found that the economic loss doctrine could not be utilized to bar claims under the UTPCPL in Pennsylvania. The economic loss doctrine stands for the general proposition that a party cannot recover purely economic losses in a tort as a result of failed contractual expectations.
- Does a New California Case Intend to Pave the Way for Opening Policy Limits Without a Formal Demand?Case Updates5.3.21One of the toughest challenges coverage counsel and carriers face is trying to figure out how much breadth should be given to a decision that a California Court of Appeal has actually decided to publish. That difficulty is compounded when the potential impact of the decision requires extrapolation based upon a series of hypotheticals. Under California law, the typical bad faith claim for a failure to settle occurs when: (1) a third party claimant makes a reasonable settlement offer within the policy’s limits; (2) the carrier rejects the offer; (3) the matter proceeds to trial, and (4) the trial results in a judgment against the insured for an amount greater than the policy’s limits. Under such circumstances, the carrier becomes liable for the entire judgment.
- Case Updates3.30.21
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).
- Trial Results3.24.21
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.
- Trial Results1.25.21
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.
- Trial Results10.13.20
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.
- Industry Under Attack Scores Important Win in California Supreme Court; Limitation on Statutory Penalties Avoids Influx of Litigation and Exposure of Skilled Nursing and Intermediate Care FacilitiesCase Updates8.21.20
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.
- Case Updates6.5.20
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.
- New Jersey Appellate Courts Enforce Arbitration Agreements and Allow Appointment of Substitute ArbitratorAppellate Results6.4.20
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.
- Case Updates5.4.20
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.
- Case Updates12.12.19
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.
- Case Updates10.8.19
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.
- Case Updates9.23.19
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.
- Trial Results9.18.19
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.
- Trial Results8.7.19
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.
- Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation SuitAppellate Results7.24.19
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.
- Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to StandCase Updates7.17.19
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.
- Case Updates6.10.19More 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.
- Case Updates3.22.19Employees 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.
- Trial Results1.18.19
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.
- Texas EPL Alert: Will the Texas Supreme Court Open the Door for Employers in Glassdoor, et al v. Andra Group, LP?Case Updates11.2.18
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.
- Case Updates5.23.18
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.
- WSHB Case Update: Pebley v. Santa Clara Opens the Door in California to Inflated Medical Damages ClaimsCase Updates5.11.18
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.)
- Defense Summary Judgment in Favor of Defendant Northern California City Against $4M Wrongful Death SuitTrial Results4.26.18
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.
- Trial Results2.12.18
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.
- WSHB Case Update: New Jersey Supreme Court Rules that the Worker's Compensation Act Prohibits Waivers of an Employee's Claims Against Third-Party TortfeasorsCase Updates2.2.18
In Vitale v. Schering-Plough Corporation, 231 N.J. 234 (2017), the New Jersey Supreme Court held that section 39 the New Jersey Worker's Compensation Act prohibits a waiver of an employee's claims against third-party tortfeasors. Courts have traditionally applied this statute to prohibit waivers of an employee's right to worker's compensation benefits. The Vitale decision expands the scope of the prohibition to include waivers of an employee's claims against third-parties. Therefore, employees cannot be required to waive future tort-claims against third-parties as a condition of employment.
- WSHB Case Update: Oregon Court of Appeals Strengthens Four Corners Rule in Construction Defect MattersCase Updates2.2.18Convincing 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.
- Case Updates1.18.18
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.
- Is the Mandatory Notice Process in Chapter 558, Florida Statutes, A "Suit" Within the Meaning of a Particular Commercial General Liability Policy?Case Updates12.28.17
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.
- Trial Results11.9.17
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.
- Risk Management Alert: California Building Owners and Contractors Exposure Increases for Non-Paying SubcontractorsCase Updates10.30.17On October 14, 2017, California Governor Jerry Brown signed Assembly Bill 1701 into law. This law makes direct contractors liable for a subcontractor's non-payment of its employees. This law is only applicable to private, non-public work. Under AB 1701, if a direct contractor hires and pays a subcontractor to perform electrical work, and the subcontractor does not pay its employees, the direct contractor is liable for the unpaid wages and fringe benefits, plus interest, regardless of the fact that the direct contractor already paid the subcontractor. The direct contractor, however, will not be liable for any penalties resulting from the subcontractor's failure to pay.
- Trial Results10.24.17
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.
- Trial Results10.10.17
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.”
- Case Updates10.10.17
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.
- Trial Results8.11.17
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.
- Case Updates7.5.17
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.
- Case Updates6.19.17
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.
- Jury Rejects $12 Million Demand in Rear-End Truck Collision, Declines to Award Compensation for Three Spinal SurgeriesTrial Results6.16.17
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.
- Case Updates5.31.17
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.
- Washington Supreme Court Applies Efficient Proximate Cause Rule to Pollution Exclusion in Third-Party Coverage DisputeCase Updates5.30.17The Washington State Supreme Court handed down more bad news to liability insurers, in holding that an insurer committed bad faith by denying coverage in a third-party liability carbon monoxide poisoning case, basing its coverage denial on a pollution exclusion. In Xia v. ProBuilders Specialty Inc. Co., at issue was coverage for a builder who defectively installed a hot water heater exhaust vent, which allowed carbon monoxide into Xia’s home. The Court applied the efficient proximate cause rule to determine whether a pollution exclusion in the builder’s policy excluded coverage. Washington law provides that, when a “covered peril” sets in motion a causal chain, the last link of which is an “uncovered peril,” there is coverage under the policy. This is the first time the Court applied the efficient proximate cause rule to a third-party liability coverage dispute.