Experience Archive

Wood Smith Henning & Berman (WSHB) is pleased to announce a major legal victory for its New York office in a recent New York Labor Law case. Courtney Scharpf, a senior counsel in the firm's New York office, successfully defeated the plaintiff's motion for Summary Judgment on Labor Law 240(1) and obtained a dismissal of the plaintiff's Labor Law 200 and 214(6) claims, as well as contractual indemnification on our third-party action against the employer. Together with co-managing partner Tracy Abatemarco, Scharpf secured a victory in an area of the law where summary judgment wins are infrequent.

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.

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 United States Supreme Court finally clarification what lower courts must do when a case is compelled to arbitration. In a unanimous decision from Justice Sotomayor, the Court decided that lower courts must stay cases subject to arbitration and that the lower courts have no discretion to dismiss those cases.

In a significant legal triumph, Luana DiSarra Scavone, a partner in the Boston office of Wood Smith Henning & Berman (WSHB), successfully obtained the dismissal of all claims in a professional liability complaint filed against a real estate agent and their brokerage firm. The Massachusetts Board of Real Estate Brokers and Salespersons issued a favorable decision, clearing the respondents of all allegations.

In a significant victory for the construction industry, trial attorney Maggy Mazlin obtained a unanimous defense verdict on liability in favor of her client during the trial of a high-stakes New York Labor Law case. In doing so, the defense steadfastly rejected a $4 million dollar demand from plaintiff.

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 a per curiam opinion, the Texas Supreme Court reversed a $12 million jury nuclear verdict, determining that counsel for the Plaintiff improperly suggested in his closing arguments that the defense was motivated by gender and racial bias. In the case of Roberto Alonzo and New Prime Inc. v. John, 647 S.W.3d 764, 770-71 (Tex. May 10, 2024).The court determined that an unprovoked and uninvited personal attack on the defense counsel was improper and inflammatory while completely unsupported by any evidentiary basis presented in the case.

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 Michigan Supreme Court recently approved a series of significant amendments to Rule 702 of the Michigan Rules of Evidence (MRE). Effective December 1, 2023 and May 1, 2024,¹ the Michigan rule was updated to align the state with Rule 702 of the Federal Rules of Evidence (FRE). Michigan now stands among the first states to fully adopt this updated federal standard.

Wood Smith Henning & Berman (WSHB), a prominent national law firm, is thrilled to announce a momentous victory for its client in a high-profile wrongful death case. The case, which tragically involved the untimely demise of a 15-year-old girl in an ATV accident, was successfully defended by WSHB trial attorneys, Graham Miller and Caroline Hopkins.

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.

The Oregon Supreme Court's recent decision in Trebelhorn v. Prime Wimbledon SPE, LLC, 372 Or.27 (2024) carries significant legal implications regarding excessive punitive damage awards in premises liability cases. The case, which centered on a tenant's injury due to a defective walkway at an apartment complex, sparked a legal battle that delved into a nuanced constitutional conversation surrounding the implications of punitive damages.

In a recent landmark legal development, the 1st District Appellate Court of Illinois rendered a pivotal decision addressing the interplay between "catchall exclusions" in insurance coverage and claims involving the Biometric Information Privacy Act (BIPA). This seminal case, National Fire Insurance Company of Hartford, et. al. v. Visual Pak Co., 2023 IL App (ast) 221160, carries profound implications for both the business and insurance sectors. In this article we delve into the reverberations of this court ruling, exploring its ramifications for businesses, insurers, and policyholders alike.

On April 17, 2024, in Muldrow v. City of St. Louis, the Supreme Court changed the test for determining whether an employer violates Title VII's anti-discrimination provisions when it transfers an employee even if the transfer does not result in a loss of pay or benefits. Instead of having to show that the employee's job transfer resulted in "significant harm," the employee now only needs to show that the transfer resulted in "some harm."

WSHB, a leading national law firm specializing in litigation, is pleased to announce a major victory achieved by partners Chad Dunigan and Ryan Brooks in a highly contentious toxic tort arbitration matter. The successful defense resulted in a favorable outcome for their client, a prominent national homebuilder.

As fees and costs associated with litigation continue to rise, along with lengthy discovery periods and uncertain trials, those who require legal services can incur great costs in connection with litigation. As a result, such individuals and their attorneys are increasingly looking elsewhere for funding. This has led to a rise in third-party litigation agreements. These agreements can provide a major benefit to plaintiffs as they can decrease the financial risk when pursing what may be a frivolous lawsuit.

In a closely watched jury trial, WSHB managing partner Tim Repass achieved an impressive trial victory that showcased his exceptional litigation skills. After an intense two-week trial, the jury delivered a verdict that emphatically rejected the plaintiff's exorbitant $31 million in claimed damages. Plaintiff’s counsel used anchoring tactics in the admitted liability matter, but Repass successfully argued for a significantly reduced award of $550,000, even lower than our client's pre-trial offer.

In a closely watched decision, the Second Judicial Department reversed a surprising ruling by the Supreme Court of Queens County which denied governmental immunity to the Port Authority of New York and New Jersey. If allowed to stand the lower court decision would have had significant negative implications for public entities engaged in governmental functions. WSHB partner and accomplished trial attorney, Brian Colistra, successfully argued the appeal, securing a crucial victory for a client with much to lose as they operate the Port of New York and New Jersey, as well as the airports, bridges, tunnels, and bus terminals in the metro region.

WSHB is proud to announce yet another data breach class action dismissal by its Cyber Team, this time in the U.S. District Court for Arizona. Senior counsel John Darminio and partner Christopher Heo successfully obtained the dismissal of a data breach class action involving over 150,000 class members. Plaintiffs sought in excess of $5 million in damages from the client, even though it was the victim of a debilitating ransomware attack carried out by a criminal gang.

In an effort to improve traffic safety and address volatile conditions concerning transportation, Texas Governor Gregg Abbott signed two significant transportation bills into law in 2023. House Bill 1885 grants the Texas Transportation commission the authority to establish temporary speed limits under specific circumstances, while House bill 2190 brings a crucial change in the terminology used to describe transportation-related incidents. These legislative updates aim to increase safety and promote a more precise understanding of road situations.

Washington courts provided new guidance and protection for employers handling industrial injury and occupational disease claims. Previously, under the compensable consequences doctrine, employers risked being stuck with covering unrelated complications or aggravation with no causal connection to an industrial injury.

WSHB is proud to announce a significant triumph secured by New York Partners John Cofresi and Richard Sprock in a recent insurance coverage arbitration. The majority of the arbitration panel, composed of highly experienced arbitrators, delivered a defense verdict, denying the claimant's $15 million claim for business interruption and extra expense stemming from the suspension of manufacturing at one of its manufacturing facilities. The claimant also sought consequential damages for breach of the implied covenant of good-faith and fair dealing so as to expose our client to the considerable attorney's fees accrued by claimant's law firm.

WSHB proudly announces a resounding victory for our Florida team in a recent binding arbitration case. Our skilled attorneys successfully defended a national storage facility owner against a plaintiff who claimed injuries from a trip and fall incident on the property after compelling the case to binding arbitration.

In a pivotal decision with far-reaching implications, the Pennsylvania Supreme Court in Johnson v. Toll Brothers, Inc. et al., 302 A.3d 1231 (2023), delivered a victory for the construction industry. The Supreme Court's affirmation of the trial court's granting of summary judgment in favor of the contractor, which was grounded in the application of the Statute of Repose, has significant implications for the construction and insurance industries. This article delves into the intricacies of the case, explores its significance for these industries, and sheds light on the decision's broader impact on the construction landscape in Pennsylvania.

The Washington "My Health My Data" Act (MHMD) was passed by the Washington State Legislature in 2023 and is aimed at revamping health data ownership and privacy. The law details specific requirements that regulated entities must comply with in their use and collection of personal health data. The Act is significant because it is the first of its kind to add an extra layer of protection on top of what is already required by the Health Insurance Portability and Accountability Act (HIPAA).

The New York legislature recently enacted significant amendments to New York General Obligations Law § 5-336, the law on non-disclosure agreements, which expand the restrictions on non-disclosure agreements. The amendments specifically relate to provisions aimed at keeping allegations of discriminatory harassment and retaliation confidential. These changes became effective on November 17, 2023. In addition, the 21-day waiting period for a complainant to consider a non-disclosure agreement before signing is now waivable by complainants for matters settled pre-litigation and the law now applies to claims of discriminatory harassment and/or retaliation brought by independent contractors as well. Employers and risk managers should take note of these changes and modify their settlement agreements accordingly.

The world of insurance claims management was rocked recently when a federal court in Michigan clarified in-house counsel , may not invoke attorney client privilege to shield their routine claim-handling activities. The case, Wolverine Worldwide Inc. v. The American Insurance Company et. al., highlighted an often encountered, but rarely discussed circumstance of insurance claims management. This significant ruling underscores the importance of focusing on the nature of the work performed rather than the individual's professional title.

A recent case out of New England serves as a reminder for lawyers practicing in all jurisdictions that witness coaching, whether in a remote environment or in person, violates the ethical rules. After coaching a client during a remote deposition, a lawyer practicing in Massachusetts was faced with disciplinary action for his conduct. The Massachusetts Board of Bar Overseers of the Supreme Judicial Court ("BBO") issued a public reprimand and noted that although disciplinary actions relating to remote proceedings are relative anomalies, their oversight is active and expected to increase over time.

The United States Supreme Court is set to decide Smith v. Spizzirri, and resolve a federal circuit split as to whether federal courts must stay lawsuits or dismiss lawsuits where arbitration is compelled.

On February 2, 2024, the Texas Supreme Court answered a certified question from the Fifth Circuit Court of Appeals in Mario Rodriguez v. Safeco Insurance Company of Indiana. In Rodriguez, the Texas Supreme Court held that the plain language of Section 542A.007(a) of the Texas Insurance Code makes clear that payment of an appraisal award, plus applicable statutory interest, extinguishes an insured's right to recover attorney's fees in litigation. The Court reasoned that because the insured received payment of the appraisal award—which covers his claim under the insurance policy—the insured would have no remaining claim under the insurance policy for damage to or loss of covered property.

The Illinois Supreme Court recently handed down a landmark decision in Acuity v. M/I Homes of Chicago, LLC, 2023 IL. 129087_N.E.3d_(2023), finding that property damage that arises from the defective work can be caused by an accident that qualifies as an occurrence under an insurance policy. With this decision, Illinois joins the majority of states finding that this type of damage constitutes an occurrence. The holding is significant because it does away with a hallmark Illinois rule that damage to third-party property is required to establish property damage caused by an occurrence. In effect, this decision will alter how insurance carriers in the state handle construction defect claims moving forward. Business risk exclusions may now become the central inquiry as insurers examine whether a duty to defend is present.

WSHB, a leading national defense firm, is thrilled to announce a significant legal triumph in the case of Pearland UrbanAir LLC v. Cerna. This decision, secured in the 14th Court of Appeals in Texas, sets a groundbreaking precedent in the amusement park industry and others that regularly employ waivers of liability for minors. In doing so, this decision is powerful authority solidifying the enforceability of binding arbitration agreements with minors who have executed waivers.

WSHB achieved a significant legal victory in obtaining the dismissal of a data breach class action lawsuit involving over 88,000 affected patients. The federal court judge issued a comprehensive 19-page opinion dismissing the class action and adopting the arguments presented by partners Dan Paret and Chris Seusing on behalf of their client, a non-profit mental health facility.

In the case of Tiffany Builders, LLC v. Delrahim, Case No. B384161, the California Court of Appeals addressed the age-old issue of what constitutes a valid contract. A deal made in a coffee shop and written in a notebook that was handy at the time may qualify as valid agreement if all the basic contract principles are accomplished in the writing. Here we examine this case and the various contract theories it addressed.

WSHB's Sebastian Larrea and Nicole Dominguez secured a victory in a property insurance claim dispute, resulting in the dismissal of the lawsuit with prejudice. This triumph not only showcases the firm's commitment to excellence but also highlights its exceptional ability to navigate complex legal challenges with expertise and skill.

For years, Oregon has been known as a jurisdiction that generally does not recognize "bad faith" claims against insurers, absent the existence of a "special relationship" outside of the insurance policy. Historically, an insured's remedies against its insurer are limited to contractual remedies, which do not include damages for emotional distress. The recent decision by the Oregon Supreme Court in Moody v. Oregon Community Credit Union, 371 Or. 772 (Or. 2023), marks a notable shift in the legal landscape concerning private rights of action under the Unfair Claims Settlement Practices Act (ORS 746.230). The Moody Court overturned precedent finding that under limited circumstances an insured can assert a common law negligence claim and recover emotional distress damages where an insurer violates ORS 746.230 and undermines public policy. The practical impact of this landmark case is still unfolding, but we know that it will lead to far more litigation involving first party claims that can no longer easily be disposed of via motions to dismiss.

In a recent pivotal decision, the California Supreme Court has removed a potentially important tool for employers defending Private Attorney General Act (PAGA) claims. The ruling in Estrada v. Royalty Carpet Mills, Inc. has not only eliminated a crucial defense strategy, but has also sparked discussions on effective approaches to counter large, unmanageable PAGA claims. This article addresses the origins of PAGA, the prior disparities among lower courts, the California Supreme Court's stance, and the available defense strategies for California lawyers.

Businesses may rejoice in this decision out of the Second District of California finding that a dissatisfied customer spewing falsehoods online could, in fact, be found liable for committing libel against her contractor. In the case of Paglia & Associates Construction, Inc. v. Hamilton (2023) Case No. B313864, the Court ruled that a client's bashing of her contractor online was not privileged despite the fact that the two were embroiled in a review by the Contractors State License Board. The litigation privilege did not apply where the writings were not sufficiently connected to the litigation.

As the calendar turns to 2024, New York employers should be aware of several new laws going into effect in the Empire State. As the new laws go into effect, businesses should take note of the potential implications the new laws have on businesses and employers should take proper action to revise current policies and procedures to ensure compliance.

In the case of In re Barnes, 655 S.W.3d 658 (Tex. App. 2022), the Texas court upheld an injured party’s right to protect their mental health records where a mental health or medical issue was not at the center of the controversy. It emphasized the importance of screening privileged documents before disclosure to ensure that the least amount of confidential information necessary is revealed as part of the case. A general request for mental anguish coupled with negligence and bystander liability claims was an insufficient reason to order the disclosure of the entirety of the party’s mental health records. This decision is important for defense counsel to note as the issue at hand may have been easily avoided if the request for records had been sufficiently tailored and narrowed in scope.

The judicial landscape of 2023 was marked by several pivotal decisions that significantly impacted the legal landscape on several fronts. From rulings on qualified immunity for healthcare professionals to underinsured motorists decisions, the courts played a significant role in interpreting and changing the application of significant laws in Arizona this past year. In this article, we will delve into some of the most influential court decisions and break them down.

A recent ruling by the Supreme Court of Florida in the case of Alberta S. Ellison v. Randy Willoughby, No.SC2021-1580 (November 2, 2023), has significant implications for insurance companies. The court determined that bad faith settlement proceeds from a plaintiff's uninsured motorist insurer should not be considered a "collateral source" under Florida Statute § 768.76. This article summarizes the case and provides practice pointers for the defense bar and insurance carriers in light of this ruling.

In Scottsdale Insurance Company v. American English, LLC, 1-23-cv-000028, (N.D. Ill. 2023), the Northern District of Illinois held that an insurer was not obligated to defend and indemnify an insured whose agent injured a passerby when unloading a cart from a company van. An auto exclusion eliminated the duty owed by the insurer under the policy.

WSHB is proud to announce that Partner Bolam Kim, lead counsel in a highly contentious childhood lead paint case, has achieved a significant victory. The appellate decision, delivered on November 9, 2023, is poised to impact the industry significantly as a seminal decision for the defense in lead paint litigation and is sure to have broad application for future cases moving forward.

In what appears to be an emerging trend upending years of precedent, the Fifth Circuit Court of Appeals has now suggested that Title VII employer liability could extend to situations where an employee has not been subjected to an “ultimate employment” decision. In two recent decisions, the Fifth Circuit Court of Appeals has said that the plaintiffs in those cases could pursue Title VII disparate treatment claims for discrimination based on the denial of the privileges or terms of employment, such as shift schedules and days off. Below, we briefly examine those two cases and assess their impact on employer liability going forward.

In a recent legal case, Summerfield v. City of Inglewood, Summerfield v. City of Inglewood, No. B324117, 2 (Cal. Ct. App. Oct. 25, 2023), the court examined whether the City could be held liable for the murder of a park visitor in a parking lot. The court's ruling has significant implications for public entities and their responsibility to protect visitors from potential harm. This article will delve into the details of the case, discussing why it is important to understand the criteria for establishing a dangerous condition on public property. By examining the court's reasoning and analysis, we can gain valuable insights into the duty of care owed by public entities and the limits of their liability in such cases.