Experience Archive

Recent California wildfires have heightened concerns about the scope of coverage for smoke damage under homeowners' insurance policies. In response, the California Department of Insurance issued Bulletin 2025-7 to guide insurers in processing smoke damage claims, emphasizing that while policy language remains paramount, each claim must be evaluated on its own merits. The guidance is particularly timely in light of the recent court decision in Gharibian v. Wawanesa Gen. Ins. Co., which addressed the issue of what constitutes direct physical damage as it relates to smoke.

In the recent case of Builders FirstSource-Southeast Group, LLC v. Palmetto Trim & Renovation, (No. 2021-001050), a South Carolina court examined the validity of certain indemnity provisions in contracts used by Builders FirstSource (BFS). The case centered on whether a contractor could require subcontractors to indemnify and defend it against claims allegedly stemming from its own negligence. Ultimately, the court affirmed that the contested contract provisions violated South Carolina Code § 32-2-10. This decision reinforces the state's stance against unfair risk-shifting in construction contracts and provides a clear precedent for future contract disputes in the industry.

In a remarkable culmination of legal perseverance, trial attorney Philip Grennan of Wood Smith Henning & Berman triumphed in a fiercely contested racial discrimination trial that spanned over two grueling months. Described by Grennan as “the craziest and most challenging trial I’ve ever had in 40 years of practice,” this case underscores the exceptional dedication and expertise that WSHB brings to its clients.

The question of legal responsibility when violence erupts at events can prove complicated. In the recent case of Carmichael v. Café Sevilla, G063589 (January 7, 2025), the court examined the limits of negligence per se and the doctrine of ultra hazardous activities. After the event, Plaintiffs sued Café Sevilla of Riverside and its operators (hereinafter "Defendants"), arguing that the venue failed to provide adequate security and committed permit violations making it legally responsible for the repercussions of the shooting. Defendants moved for summary judgment and or summary adjudication (hereinafter "Motion") on the causes of action for negligence per se and ultrahazardous activity, which the Court ultimately granted and affirmed on appeal. The ruling in Defendants' favor in Carmichael highlights key limitations in holding businesses accountable for third-party violence, which is discussed further herein.

A federal judge in Arizona has dismissed a data breach class action, ruling that the plaintiffs lacked standing and failed to state a claim despite multiple attempts to amend their complaint. The Wood Smith Henning & Berman defense team comprised of partners Chris Seusing, John Darminio, and senior associate Sean Patel, successfully defended the client in this multi-faceted and complex case. The decision was not only a critical victory for the client, but also serves as important precedent, reinforcing that courts can and will strike class allegations at the pleading stage, an action they have historically been reluctant to take.

Wood Smith Henning & Berman obtained a decisive victory for a large financial institution in a data breach class action, leading to the voluntary dismissal of the case in Nebraska State Court. The lawsuit, which alleged violations of the Gramm-Leach-Bliley Act (GLBA), was withdrawn after the WSHB team, consisting of partner Chris Seusing and senior associate Sean Patel, demonstrated that the named plaintiff was not an adequate class representative.

The case of MK v. Auburnfly, LLC raises complex questions about the enforceability of parental indemnification agreements in Michigan. These agreements, often presented as prerequisites for participation in recreational activities, have significant implications for public policy and the rights of minors. At the center of the dispute is whether such agreements are consistent with Michigan public policy, particularly when a parent is required to indemnify a recreational business for injuries sustained by their child due to the business's alleged negligence.

In a highly anticipated decision, the Connecticut Supreme Court in L.L. et al. v. Newell Brands, Inc. et al. (SC2105), held that Connecticut state law does not recognize a parent's claim for loss of filial consortium when a minor child suffers severe injuries due to a third party's alleged wrongdoing. The decision arose from a certified question submitted by the United Sates District Court for the District of Connecticut in a case where the plaintiff sought damages under the Connecticut Product Liability Act for injuries sustained by their child.

When the State condemns private property pursuant to eminent domain, it must pay the property’s owner “just compensation,”¹ and if the “property sought to be condemned constitutes only a part of a larger parcel,” the State must include severance damages in the “just compensation”² owed. Until recently, it was unclear whether the State had to pay severance damages if “the property sought to be condemned” was a nonpossessory property right in the land being condemned, such as an easement,³ rather than physical real property. However, in January, the Arizona Supreme Court clarified the issue in State of Arizona, et al. v. Foothills Reserve Master Owners Association, Inc.,⁴ holding the State must pay severance damages when it condemns appurtenant easements and certain other nonpossessory property rights.⁵

WSHB successfully secured a summary judgment in favor of its client in a high-stakes premises liability case in Florida. The plaintiff alleged that an optical illusion of a handrail on a sloped landscaped area caused a fall, resulting in over $400,000 in medical expenses and lasting physical limitations. Despite a $2.5 million demand from the plaintiff, WSHB's partners Ryan Schoeb and Zachary Williams, along with senior associate Kyle Woodford, prevailed by crafting a compelling legal argument that convinced the court to dismiss the case entirely.

The Washington Supreme Court recently addressed an important issue of first impression in the case of Springer v. Freedom Vans LLC, No.102566-1 (January 23, 2025). The case considered whether employers can prohibit low wage employees from working second jobs under a non-compete agreement. Central to the dispute was the proper interpretation of RCW 49.62.070, which memorializes the Washington legislature's commitment to promoting workplace mobility and protecting workers from overly restrictive non-compete agreements. The law recognizes that many individuals rely on multiple jobs to make ends meet. The legislative policy behind the law emphasizes that employers should not wield excessive control over an employee's ability to accept additional work. This decision marks a significant development in Washington employment law, affirming that employee protections against unreasonable restrictions will be enforced by the courts.

In a significant decision on personal injury damages, the California Court of Appeal, upheld a jury's award for future lost earnings and non-economic damages while reinforcing strict limitations on the recovery of past medical expenses. The case, David Yaffee v. Joseph Skeen, et al. (Filed 11/25/2024, C097746 and C097988), involved a dispute over the reasonable value of medical services, with the court holding that evidence suggesting a higher valuation than what was accepted by the hospital as full payment was improperly admitted. While the court affirmed substantial damages for the plaintiff's future economic and non-economic losses, it reversed the trial court's admission of excessive past medical expenses claims, underscoring the continuing impact of Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, on California personal injury litigation.

WSHB is celebrating a significant legal victory after partner Vanessa Herzog and associate Taylor Stewart successfully secured a motion for summary judgment in favor of the client, a well-known gym. The victory resulted in the dismissal of all claims including negligence, premises liability, and gross negligence.

Wood Smith Henning & Berman is proud to share a hard-fought victory for the defense, with senior counsel Megan Michaud successfully arguing a motion for summary judgment in a complex premises liability case. The outcome is particularly noteworthy given the challenges of prevailing on summary judgment in negligence cases, especially given the serious nature of the plaintiff's alleged injuries.

In Elmi v. Related Mgmt., No. G062788 (Cal. Ct. App. Jan. 8, 2025), the California Court of Appeal clarified the scope of Code of Civil Procedure §998 regarding post-judgment costs and attorney fees. The case arose after the plaintiff, Cesar Elmi, rejected a 998 settlement offer from Related Management Company, LP (Related). The case proceeded to trial and was ultimately resolved for less than Related's offer. Under §998(c)(1), Elmi's award of pre-judgment costs and fees was limited to those incurred before Related's settlement offer. The trial court upheld this limitation, concluding that the offer exceeded the final case resolution amount.

In the recent decision of Stokes v. Forty Niners Stadium Mgmt., No. H050639 (Cal. Ct. App. Dec. 19, 2024) the California Court of Appeal affirmed the dismissal of a lawsuit filed by the family of Mark Stokes, who died following an assault in the Levi's Stadium parking lot. The court concluded that there was no evidence to prove that the stadium's management and security companies’ alleged negligence was a substantial factor in failing to prevent the sudden and unforeseen attack. Plaintiffs argued that additional security measures could have either removed the assailant from the premises before the incident occurred or deterred the attack altogether. However, the court determined that these assertions were speculative and lacked substantial evidence to prove that the defendants' alleged negligence was a substantial factor in causing the plaintiff's injuries resulting from a third-party assault.

In a high-stakes case, Kim v. Uber Technologies, Inc. (2024) 105 Cal.App.5th 252, review denied (Dec. 11, 2024), the court explored the boundaries of rideshare liability. The California Court of Appeal ruled in favor of Uber, concluding that the company was not responsible for the actions of a driver who struck a pedestrian while his Uber app was offline. The plaintiff argued that, despite the driver's offline status, he could have been positioning himself to take advantage of surge pricing by heading to a higher demand area – potentially blurring the line between personal and professional driving. However, both the trial and appellate courts found this theory too speculative, with undisputed evidence supporting that the driver was not acting for Uber at the time of the accident.

In a high-stakes personal injury case involving multiple alleged defendants and complex discovery battles, the legal team at Wood Smith Henning & Berman, led by partner Keith Smith, secured a decisive resolution in favor of the client on the footsteps of the courthouse just prior to the commencement of trial. The defense successfully dismantled the plaintiff's claim resolving the original $1.5 million claim to a settlement of only $50,000, and less than a previously issued 998 offer to compromise in the case.

Wood Smith Henning & Berman proudly announce another trial victory achieved by partner Ryan Schoeb and senior associate Olivia Rosenthal, who successfully defended a local construction company in a negligence suit, culminating in an involuntary dismissal during a bench trial

Wood Smith Henning & Berman announces a significant victory in a case involving a fraudulent accident at a work site. Senior associate, Megan McDonough, successfully secured a stipulation of discontinuance with prejudice after uncovering critical evidence that revealed false claims made by the plaintiff about an alleged workplace accident.

Wood Smith Henning & Berman is proud to announce a significant victory in a highly contentious lead paint action. Partner Bolam Kim and senior associate Lauren Davies successfully defeated the plaintiff's motion for summary judgment on liability and prevailed on a cross motion to dismiss the claims against the individual defendants.

New Jersey Senate Bill 1475, titled the "Consumer Legal Funding Act," seeks to regulate the practice of consumer legal funding within the state. Consumer legal funding involves non-recourse transactions where companies provide funds to individuals with pending legal claims in exchange for a contingent right to a portion of any potential settlement or judgment.

WSHB is proud to announce that after a hard-fought trial, partner Ryan Hicks secured a complete defense verdict in the 21st Judicial District Court of Colorado. The case involved allegations of fraud and breach of contract against a residential home inspector following two pre-purchase inspections. Thanks to Hicks skillful trial strategy, compelling presentation of the evidence, and artful cross-examination, the court ruled entirely in favor of the defense, exonerating the firm's client on all claims.

As artificial intelligence continues to take hold across disciplines, its use in legal drafting has raised critical questions about accountability and reliability. In the recent case of Al-Hamim v. Star Hearthstone, LLC, 2024 COA 128 (Colo. App. 2024), the court addressed this novel issue and highlighted the risk of relying on Generative Artificial Intelligence (GAI) tools for court filings. Al-Hamim's appeal brief contained fabricated legal citations, or "hallucinations," generated by a GAI tool. While the court ultimately decided not to impose sanctions, it issued a clear warning that future submissions containing fictitious citations could lead to severe consequences, signaling a turning point in how courts may address AI-related errors moving forward.

In an important development for California's construction industry, Assembly Bill 1034 (AB 1034) was signed into law last year, extending critical exemptions under the Labor Code Private Attorney General Act of 2004 (PAGA). Originally set to expire on January 1, 2028, the exemption for construction industry employees working under certain collective bargaining agreements will now remain in effect until January 1, 2038. The extension provides long-term relief from the substantial litigation risks that PAGA presents to employers in the construction industry.

Demonstrating legal expertise and strategic precision, the Chicago office of WSHB secured a significant victory in a contentious slip-and-fall case, winning summary judgment on behalf of a prominent property management company. Leading the charge was senior associate, Jon Kangwa, who successfully argued that the plaintiff's claims were barred by the "open and obvious" doctrine- a challenging defense to prevail upon in Illinois courts.

As California rolls out a plethora of new employment laws for 2025, employers face both opportunities and challenges in the new year. These legislative developments will impact workplace management and compliance strategies. For employers, understanding the implications of these laws is critical to minimizing risks and maintaining efficient business operations.

Wood Smith Henning & Berman is proud to share that partners Michelle Arbitrio and Molly Wilcox successfully defended their clients in a significant public procurement dispute, securing the dismissal of all claims. In a decision affirming the trial court's ruling, the Connecticut Appellate Court determined that the plaintiff lacked standing to pursue its claims, setting a key precedent for cases involving unsuccessful bidders in government contracting.

The U.S. securities industry operates under a dual regulatory framework involving both federal oversight and private self-regulatory organizations. In the late 1700's, securities traders began taking efforts to create self-policing stock markets in the United States by establishing rules to build public trust to maintain market integrity. Following the Great Depression, Congress passed a series of laws - including Securities Exchange Acts of 1933 & 1934 – regulating the securities industry. Today, the Financial Industry Regulatory Authority (FINRA), a private corporation, is registered with the Securities and Exchange Commission (SEC) as an authorized securities association under Section 15A of the Securities Exchange Act of 1934, and plays a central role in regulating the securities industry, along with federal law, requiring Broker-Dealers and Registered Representatives to obtain FINRA membership to operate within the securities industry. This legal framework also subjects FINRA to oversight by the SEC, requiring it to enforce compliance with its own rules as well as federal securities laws.

In the case of Auto-Owners Ins. Co. v. Forest Ins. Center Agency, Inc., Auto-Own Ins. Co. v. Forest Ins. Ctr. Agency, No. 366123 (Mich. Ct. App. Oct. 25, 2024), the Michigan Court of Appeals addressed the intersection of professional liability insurance and negligence claims in the context of a catastrophic fire at a Michigan lumber business. The fire, which caused over $22 million in damages and losses, exposed alleged shortcomings in the business's commercial insurance coverage. This case highlights the ongoing duty of insurance agents to determine accurate coverage and the expansive nature of an insurer's duty to defend under claims-made policies.

In Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, the California Supreme Court reminds us of the state’s strict stance on the requirements for arbitration agreements, with particular insight into arbitration agreements in the employment context. By affirming that the arbitration agreement in question was unconscionable due to unfair terms, the court reinforced the importance of drafting balanced contract provisions, with particular consideration to the practical effect of language within arbitration agreements at the time of contract formation. Parties should carefully review their arbitration clauses to ensure they align with the principles discussed herein to reduce the risk of unenforceability due to potentially unconscionable provisions for which severance will not be deemed the appropriate remedy.

California courts will implement significant changes to the summary judgment process starting January 1, 2025. Assembly Bill (AB) 2049, signed into law earlier this year by Gavin Newsom, introduces the first major update to Code of Civil Procedure section 437c in twenty years. These updates affect motion timelines, successive motions, and briefing limitations requiring attorneys to adjust their strategies accordingly.

In this case of first impression, Live Life Bella Vita, LLC. V. Cruising Yachts, Inc., the court was asked to determine whether indemnity claims constitute separate claimants under the Limitation of Liability Act (otherwise known as the "Limitation Act"). The shipowners, Live Life Bella Vita, LLC, filed a limitation action in federal court seeking to cap their liability following a severe injury suffered by a maintenance diver, Eduardo Loaiza. The district court initially enjoined all related suits pursuant to the Limitation Act but later dissolved the injunction, allowing Loaiza to pursue his state court claims under the "single claimant" exception. However, when third-party indemnity and contribution claims were filed in the federal proceeding, the ship owners challenged the district court's decision, arguing that the presence of these third-party claims created a multiple claimant scenario under the Limitation Act.

As Governor Kathy Hochul prepares to make a pivotal decision regarding the contentious SB485B legislation on her desk, the potential ramifications for New York's consumers and the business community demand urgent attention. This bill, which has already been vetoed twice, seeks to significantly alter the landscape of wrongful death claims in the state. Its passage would not only exacerbate the already rising costs of liability insurance but also create a host of unintended consequences that could destabilize New York's legal and economic environments.

In a major victory for the defense, the California Court of Appeal affirmed a summary judgment in favor of WSHB's client involving a significant injury case brought by a longshoreman who was injured at the Port of Long Beach. The plaintiff, who alleged a traumatic brain injury and orthopedic injuries after his rig tipped over while hauling cargo at the Port, originally sought $20 million in damages. This appellate decision marks a rare complete dismissal in this high-stakes area of law.

A recent First Circuit decision, Admiral Insurance Company v. Tocci Building Corporation, No.22-1462 (1st, Cir. 2024), clarified the limits of commercial general liability (CGL) coverage. The core issue revolved around whether Tocci's commercial general liability (CGL) policy required Admiral to defend against claims of property damage caused by subcontractor errors within a larger construction project. The court examined whether damage to non-defective parts of a project, resulting from faulty subcontractor work, qualified as "property damage" caused by an "occurrence" under Massachusetts law. Although recognizing evolving interpretations, the court upheld the district court's decision that Admiral was not obligated to defend or indemnify in this case.

As businesses increasingly rely on digital tools to connect with and understand their customers, the use of tracking software has become widespread. This technology enables companies to collect valuable data about user behavior, allowing for personalized marketing, better website performance, and optimized customer experiences. However, recent legal cases have raised important questions about the boundaries of tracking software and its intersection with privacy laws, such as the 1968 Wiretap Act. This article examines the recent case of Kathleen Vita v. New England Baptist Hosp., No. SJC-13542 (Mass. Oct. 24, 2024), which hinges on whether the hospitals' use of tracking software constitutes a violation of the Wiretap Act, particularly in terms of "communication" and "interception." The Wiretap Act's primary aim is to prevent unauthorized surveillance of personal conversations. Traditionally, courts have applied the Act narrowly, focusing on direct person-to-person exchanges. Applying the Act to the passive collection of user data on a website represents a novel and potentially far-reaching interpretation.

Wood Smith Henning & Berman has achieved a full defense victory in a complex FINRA arbitration, securing a complete dismissal of claims against its client, a seasoned investment advisor. The case, which was by led by partner Michelle Arbitrio and senior associate Seth Bursky, involved claims that the advisor breached his fiduciary duty by making unsuitable investment recommendations. However, the FINRA arbitration panel found the advisor's investment strategy to be both suitable and prudent, given the claimant's stated investment objectives and market conditions.

Wood Smith Henning & Berman is proud to announce a significant victory for the defense, celebrating a unanimous verdict in favor of a respected, world-renowned neurosurgeon in a high-profile medical malpractice case. Philadelphia partner, Andy Kessler, prevailed on behalf of the client after a hard fought eight-day trial.

The managing partner of Wood Smith Henning & Berman's Seattle office, Tim Repass, has secured back-to-back success in yet another high-profile jury trial. Repass successfully defended a housing authority in an important premises case in which an elderly tenant claimed $2.2 million in damages after a fall on an icy surface. Ultimately, the jury awarded less than one-fifth of the amount claimed, agreeing with our analysis.

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

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

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

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

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

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

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

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

WSHB is proud to announce that the New Jersey office secured a significant victory in a property management case involving a severe injury claim. Under the supervision of partner Jill Mucerino, and led by senior associate Alison McClave, the case was successfully resolved in favor of the client, the owner and manager of an apartment building, after a successful motion for summary judgment in Middlesex County.

On June 3, 2024, Governor Jared Polis signed Colorado House Bill 24-1472 into law, marking a pivotal change in the state's legal framework around damages. This legislation significantly raises the limits on noneconomic damages, wrongful death claims, and medical malpractice awards, while also allowing siblings to bring wrongful death actions in certain cases. These updates carry substantial consequences for businesses and insurers operating in Colorado. This article explores the practical outcomes of these changes and how they may impact litigation and risk management.