Experience Archive

In 2019, the Washington State Legislature amended the wrongful death statute to include certain second tier beneficiaries, including siblings of the deceased. Previously, parents and siblings could only sue for wrongful death in Washington if they were financially dependent on the decedent. With the precedent set by the Washington Supreme Court in Kellogg v. Nat’l R.R. Passenger Corp., No. 99724-1, 2022 WL 552605 (Wash. Feb. 24, 2022), it is clear that Washington courts will now allow wrongful death cases to proceed for second tier beneficiaries who are not financially dependent on the decedent. Moreover, claims by second tier beneficiaries which are not yet time-barred may also proceed, even if the death occurred prior to the amendment of the wrongful death statute.

The New York State Supreme Court’s failure to give proper jury instructions regarding the substitution of an alternate juror as well as its failure to require that deliberations resume from the beginning after the alternate juror joined the jury, resulted in an invalid verdict which deprived the defendants of their constitutional and statutory rights.

In the case of Lydia Kaney v. Carol A. Custance, the California Court of Appeal provided great latitude to plaintiffs when it comes creating a triable issue as to causation where the plaintiff lacked any recollection of the incident, or knowledge of what may have caused the incident.

The Insurance Fraud Protection Act (IFPA) did not prohibit subsequent qui tam lawsuits against the same defendant doctor when the actions involve different victim pools or schemes of fraudulent activity.

An employee who stepped outside for a smoke and to walk across the street for a sandwich on an unplanned break was entitled to workers compensation. The Pennsylvania Commonwealth Court found that these activities remained within his course of employment.

Contractors in the State of Washington have been watching closely a case involving prelien notice by subcontractors. On December 6, 2022, the Washington Court of Appeals, Division Two addressed the issue in the decision of Velazquez Framing LLC v. Cascadia Homes, Inc., (2022) Case No. 56513-7-II. In this matter, a second-tier subcontractor’s failure to provide prelien notice to the general contractor prevented enforcement of its lien. The court held that allowing an unknown subcontractor to file a lien against a general contractor's property when the general contractor was not aware of the second-tier subcontractor’s hiring or participation in the project is against legislative policy to protect both laborers and owners.

An employee who brought suit against his employer for multiple Labor Code violations was not held to the provisions of an arbitration agreement as several terms were skewed in favor of the employer. The court found that an agreement signed as a condition as employment as well as containing multiple unfair terms that were stacked against Plaintiff, rendered the contract as a whole unconscionable and unenforceable.

After appealing the trial court’s grant of summary judgment, a hospital manager will get her day in court. In Crabtree v. Jefferson Healthcare, the Court of Appeals (Div. 3) found that a genuine issue of material fact exists as to the reasons for the employee’s termination of a pregnant employee and subsequently, the case should be heard and decided upon by a jury.

At the close of 2021, Governor Hochul signed into law the New York 2022 Comprehensive Insurance Disclosure Act. This law provides for significant amendments to the Civil Practice Law and Rules (C.P.L.R.) and will greatly impact insurance carriers as well as defense counsel moving forward. The new law mandates certain insurance disclosure requirements that may have detrimental effects on the defense industry by opening up the flood gates to more litigation and inflated demands on settlement. It also imposes burdensome requirements within a short period of time to disclose actual insurance policies and other lawsuits that affect or implicate coverage.

In an important development, the United States Supreme Court agreed to review the California Court of Appeal opinion in Viking River Cruises v. Moriana, B297327 (Cal. App. Sep. 18, 2020), involving a motion to compel arbitration and California’s Labor Code Private Attorneys’ General Act (“PAGA”) statute. The issue before the court is whether a pre-dispute arbitration agreement under the Federal Arbitration Act (“FAA”) purporting to require arbitration of any such claim is valid. A favorable employer decision would invalidate longstanding California law precluding arbitration of any PAGA claim, and have massive positive repercussions in favor of employers.

At the close of 2021, the Nevada Supreme found NRS 52.380, which allowed observers and audio recording during physical or mental examinations without a prior showing of good cause, unconstitutional under the separation of powers doctrine. Notwithstanding the constitutional and legal reasoning behind the ruling the court’s decision represents an end to a nearly 3-year policy battle. The decision also has practical implications for practitioners involved in personal injury litigation in Nevada. Namely, the appropriate procedures for physical and mental examinations are exclusively found in Nevada Rule of Civil Procedure 35. This may not be a particularly groundbreaking legal development, but it provides Nevada practitioners with some much-needed clarity regarding independent medical examinations in civil discovery.

For over a year now, Americans with Disabilities Act (ADA) website accessibility cases in federal district courts in Florida, Georgia, and Alabama have been at a near standstill pending an appeal to the Eleventh Circuit Court of Appeals in the matter of Gil v. Winn Dixie Stores. The appeal sought review of a trial court’s judgment that Winn Dixie’s website violated the ADA by not providing sufficient technology to allow a vision-impaired customer access to the website’s virtual offerings that he would have then used in the physical store location. On April 7, 2021, the Eleventh Circuit vacated judgment, holding that under the ADA, Winn Dixie’s website was not a “place of public accommodation.” The decision at the Eleventh Circuit was reached by only a panel of three judges. The plaintiff then asked the Eleventh Circuit to rehear the case en banc, or to have all of the Eleventh Circuit judges decide the case again. On December 28, 2021, the Court granted plaintiff’s request but then dismissed the matter entirely.

Thirty-one days of trial testimony have culminated in a resounding defense verdict in a trial involving a commercial property in Orange County, California. After six hours of deliberation, the jury rejected a myriad of claims from the plaintiff, who leased a restaurant in a commercial area. Plaintiff claimed damages against the building property owner and management company exceeding $10.5 million, plus punitive damages and attorney fees.

A San Diego jury returned a defense verdict after deliberating for less than one hour in a closely watched habitability case involving a plaintiff claiming significant injuries from bedbugs. WSHB partner Paul Lewis successfully argued to the jury that plaintiff’s claim for over $500,000 in damages should be rejected in its entirety, a decision they embraced wholeheartedly.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.

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.