Experience Archive

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.

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.”

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.

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.  

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.

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.

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.

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.

Executive decision makers typically rely on reports from managers, as well as their own observations and judgments, in making employment decisions. Based on the Baker court's ruling, decision makers should clearly document the reasons for their employment decisions, making it clear that the decision is not based on any discriminatory animus and is not in retaliation for an employee's protected act in order to avoid claims of personal liability against the decision maker.

In McCarrell v. Hoffman-La Roche, Inc., 2017 WL 344449 (Jan. 24, 2017), the New Jersey Supreme Court held that the New Jersey statute of limitations applied to a products liability claim brought by Andrew McCarrell, an Alabama resident, against, Hoffmann-La Roche, Inc. and Roche Laboratories, Inc., two New Jersey pharmaceutical companies. Under the New Jersey statute of limitations, the suit was timely, but under the Alabama statute, the claim was barred. Because Mr. McCarrell's complaint was timely, the New Jersey Supreme Court reversed the Appellate Division's dismissal of the action and reinstated the jury's verdict of $25,159,530.

The Colorado Supreme Court in In Re Goodman v. Heritage Builders, No. 16SA193, 2017 CO 13, --P.3d--, 2017 WL 778227 (Colo. 2017), held that third-party claims in construction defect cases are timely so long as the first-party claims are not time-barred and the third-party claims are brought either during the first-party litigation or within 90 days of judgment or settlement, regardless of whether the original statute of limitations or statute of repose on the original claim has expired. In other words, general contractors now have the ability to bring third-party claims against subcontractors without worrying about the two-year statute of limitations or the six-year statute of repose, and subcontractors arguably no longer have statute of limitations or statute of repose defenses in third-party actions.

In the continuing development of law in the interpretation of the California Right to Repair Act (California Civil Code sections 895, et seq (“SB 800”), the Fourth District Court of Appeal held on February 10, 2017, that a homebuilder must acknowledge a homeowner's notice of claim within the 14 day period provided in the statute, even if the Notice of Claim is insufficient under California Civil Code section 910. If the builder fails to provide a written response within this time, the homeowner is released from the requirements of the Act and can proceed directly to litigation.

In a dangerous condition of public property claim, partner Greg Amundson recently obtained summary judgment in favor of the City of Long Beach. A motorcyclist that became paraplegic alleged that a traffic sign blocked the view of a driver, who pulled out in front of him when he entered an intersection. Amundson drafted the successful Motion for Summary Judgment on behalf of the City based on Government Code § 830.6, which provides public entities with design immunity. The successful motion was a joint effort with the City Attorney's Office against personal injury firm, Panish Shea & Boyle LLP.

Each year at this time, we look back at the cases, studies and other developments which have impacted mold personal injury litigation over the last twelve months. After more than a decade and a half of legal battles over which personal injuries can be attributed to mold exposure, the parties liable for those injuries, and the extent to which mold is a health risk, controversies remain.

This case is important to all participants in residential construction defect litigation as it outlines the burden of proof against a material supplier for violations of the residential construction standards within the SB 800 Right to Repair Act (Civil Code § 895, et seq.) Therefore, while the case specifically dealt with a direct claim by a homeowner association against a material supplier, the same burden of proof would be required for a cross-complaint brought by a developer or a subcontractor against the supplier. This ruling will make it more difficult to pursue claims against material suppliers by requiring a showing that the violation was caused by the material supplier's negligent act or omission or breach of contract.

This decision clearly recognizes that homeowners cannot abrogate a builder's right to repair their home simply by omitting a cause of action for violation of the Act. The court recognized that a builder has the absolute right to repair. This ruling furthers the right of builders throughout the state to repair homes to avoid litigation. There is no question that homeowners must first give notice of any defect related claims to the builder, and must afford the builder a reasonable opportunity to remedy the defects before they can file suit.

Last week, the California Supreme Court announced a decision that could modify the way big brokerage real estate firms handle business. In a case of first impression, the Court held that a brokerage company who represents both the buyer and the seller in a real estate transaction owes a fiduciary duty to both parties, even if different agents represent the parties. It is well settled law that an agent who represents both the buyer and the seller owes a fiduciary duty to both parties. In Horiike v. Coldwell Banker, however, the Court extended the fiduciary duty to brokerage companies.

Effective August 10, 2016, Colorado began enforcing C.R.S. §24-34-402.3: the Pregnant Worker’s Fairness Act. Under this Act, Colorado employers must provide a reasonable accommodation to employees who are pregnant, or who are recovering from childbirth. Notably, the Pregnant Worker's Fairness act applies to all employers, even those with only one employee, unlike the ADA which only applies to businesses with 15 or more employees.

Following a 28-day trial, a Los Angeles jury returned a defense verdict for a defendant professional property manager involving complex claims of bodily injuries and economic damages in a sewage and mold exposure case. Peter J. Burfening, Jr., of WSHB represented the defendant property manager.

The New Jersey Supreme Court, in an unpublished opinion, upheld a $2.5 million award to two brothers, including a combined $1.4 million in emotional distress damages, in an alleged race-based Law Against Discrimination (LAD) case. The holding is significant, as it confirms New Jersey's long-standing rule that courts must exercise remittitur, the power to reduce a jury's award, with great restraint, and that a jury's award is given deference, particularly because the jurors were attentive throughout trial, understood their charge, and carefully apportioned damages. Further, the decision rejected two methods previously used by the trial courts in deciding remittitur motions: the comparative analysis method, and the "feel for the case" standard, affirmed in He v. Miller, 207 N.J. 230 (2011).

The answer to this certified question could profoundly impact the number of construction defect lawsuits filed in Florida, as well as the availability and price of CGL insurance for contractors. If a 558 notice is not a suit triggering a duty to defend, those in the construction industry might decline meaningful participation in the 558 process, and instead invite litigation in order to secure their insurer's contribution. On the other hand, imposing a duty on insurers to defend during the Chapter 558 process would necessarily involve a significant outlay of attorney's fees and costs, potentially driving up premiums in the process.

On August 4, 2016, New Jersey's highest court affirmed a ruling that consequential damages resulting from a subcontractor’s faulty work constituted “property damage” caused by an “occurrence” under the property developer/general contractor’s commercial general liability policies pursuant to ISO's 1986 standard commercial general liability ("CGL") form. Cypress Point Condo. Ass'n, Inc. v. Adria Towers, L.L.C., No. 076348, 2016 WL 4131662 (N.J. Aug. 4, 2016). The Supreme Court's decision in Cypress is significant to carriers and policyholders alike, as New Jersey has joined the current majority of states holding that construction defects causing consequential damages give rise to an “occurrence” and “property damage” under the 1986 ISO CGL policy.

Congratulations to our dedicated litigation team in Las Vegas! This most recent WSHB victory involved a plaintiff motorcyclist who sued our client, a well respected national security company, and its security officer (who was driving a company vehicle on a patrol route).

Following a two week arbitration in Maricopa County, Arizona, partner Greg Amundson successfully defended all claims sought by the owners of fifteen (15) single family homes in favor of the selling entity of an Arizona residential developer and general contractor. Specifically, the Arbitrator issued a decision which completely exonerated the seller from any liability for all of the claims.

Indemnity clauses are a standard provision in nearly all consumer and commercial contracts. How the courts interpret the language of an indemnity clause will either substantially limit or broaden a party's liability and exposure. This case is important to anyone who is drafting indemnification provisions in a contract and demonstrates how important every word in an indemnity provision is when claims eventually arise.

Almost 2 1/2 years of litigation and more than four weeks of trial culminated in an unquestionable victory by Wood Smith Henning & Berman LLP in a complicated matter addressing riparian rights and liabilities along the Colorado River. In Bruncati v. Andrews, et al., WSHB attorney Graham B. Miller represented defendants Andrews Properties LLC, River Land LLC, and Billy Wayne Andrews, Jr. and obtained a verdict for less than 3% of the amount originally sought by plaintiffs, exposing them to a cost award that should mean a net judgment in favor of defendants.

On November 18, 2015, the Nevada Supreme Court issued two unpublished opinions regarding the enforceability of arbitration provisions in builder purchase agreements. These decisions contain several key holdings that clarify and/or expand upon existing law. Unfortunately, the opinions were unpublished and, pursuant to existing Nevada rules, cannot be cited as legal authority. However, these opinions provide insight as to how the Court would rule if these issues arise in the future.

In a closely watched case, a 12-person jury returned a complete defense verdict late Tuesday afternoon in favor of the City of Los Angeles Department of Water and Power ("LADWP") after determining that its Scattergood Generating Station in El Segundo, California, did not present a dangerous condition, despite Plaintiff's claim that he was exposed to asbestos dust from calcium silicate pipe insulation known as Kaylo 10.

In a closely watched dental malpractice trial, a 12-person Orange County jury returned a defense verdict in favor of WSHB’s client after deliberating for less than a day. Brian Hoffman, a partner at WSHB, led the defense team representing a dentist of a high profile dental implant practice. WSHB attorney Michelle Birtja assisted Brian in the two-week trial that was completed to verdict on September 25, 2015.

In a case involving the claims of a dangerous roadway condition causing paraplegia of a motorcyclist, a 12-person jury returned a nearly unanimous verdict in favor of County of Ventura after deliberating for less than four hours. WSHB attorney R. Gregory Amundson lead a legal team representing the County of Ventura in a 4-week trial which was completed to verdict on August 31, 2015.

The Washington State Court of Appeals held on August 10, 2015, that a termination for convenience provision in a private construction contract is enforceable where there is adequate consideration in the form of partial performance of the contract and payment for such work.

This case is important to builders in the State of Arizona because it effectively eliminates any claim that a subsequent homeowner may bring for negligence. Before this case, subsequent homeowners arguably had more rights than original homeowners for construction defects because the economic loss doctrine prevents original homeowners from suing for construction defects sounding in negligence absent personal injury or property damage, and the Statute of Repose is not applicable to tort causes of action. This case, coupled with the recent changes to Arizona’s Purchaser Dwelling Act, underscore a trend of making it more difficult for the plaintiff bar to successfully prosecute a claim for construction defect against the homebuilder.

In a scene cut straight out of a Hollywood movie, a tanker truck hauling 8,000 gallons of fuel caught fire on a Los Angeles Freeway.  The fully engulfed truck came to rest under a freeway overpass.  The explosive fire that followed completely destroyed the overpass and isolated numerous nearby businesses. The State of California filed suit against the truck owner, Van Dyk Tank Lines, seeking to recover the costs associated with re-building the overpass. WSHB was retained to defend Van Dyk and was able to settle the action for less than 50 cents on the dollar. As part of its investigation, WSHB discovered that the truck fire was caused by the defective design and installation of the interaxle driveline containing the U-joint.

Hospitals may not escape liability for its emergency room physicians and other independent contractor practitioners, despite giving notice of independent contractor status through admission papers, signage in emergency room, and insignia on clothing.

Starting January 1, architects and engineers will enjoy a shorter exposure period to tort claims arising from large commercial projects. Oregon Senate Bill No. 46 amends ORS 12.135, shortening the repose period for claims against architects and engineers from ten years to six years on large commercial structures, effective January 1, 2014.

This case recognizes and reinforces the burden plaintiffs must meet when claiming negligence in a slip-and-fall case.  

Every year at this time we look back at the cases, studies and other developments which have impacted mold personal injury litigation over the last twelve months. It has now been more than twelve years since the Ballard case in Texas first focused the media's attention on mold as the subject of civil litigation. The $32 million dollar jury verdict in that case, based on injuries allegedly caused by a commonly occurring organism, was striking. But like much of what is reported regarding mold claims, the truth was in the details. Ballard was an insurance bad faith case against the plaintiffs' homeowners' insurance carrier, not a traditional third party injury lawsuit. Less than two years after the $32 million dollar verdict was reached, a Texas appeals court cut it to $4 million.

Each year at this time we look back at the cases, studies and other developments which have impacted mold personal injury litigation over the last twelve months. After more than a decade of legal battles over which personal injuries can be attributed to mold exposure, and the type of evidence required to prove causation, Courts still struggle with these issues. This update highlights a key 2014 decision by New York’s Court of Appeals regarding the evidence necessary to prove causation, related decisions by other appellate courts which take contrary positions and a discussion of so-called “home brew” medical tests that are often the starting point for mold personal injury claims. Finally, we analyze how mold fits in with another litigation trend, the filing of so-called “habitability” lawsuits.

This case demonstrates that a builder can protect itself from all future claims under the Right to Repair Act for latent construction defects by negotiating a waiver of unknown claims (Civil Code 1542) in return for a cash settlement. As the Belasco court stated, plaintiff “and his attorney could have rejected the agreement to the extent it included a waiver of unknown claims, and their failure to do so in the face of express language referencing section 1542 establishes [plaintiff's] willful acceptance of the waiver.” Thus, after the settlement, plaintiff assumed the risk of unknown construction defects in his home.

Division Two of the Washington Court of Appeals offers vague direction regarding the requirement that a nexus exist between construction services provided after substantial completion and a construction defect claim, when determining whether the claim is stale.

In a highly publicized medical practice case, stemming from a 2009 hospitalization of an 89-year-old at St. John's Health Center, a jury of 12 reached a unanimous verdict on behalf of the hospital, finding no negligence.  In the original complaint, filed in 2010, causes of action were also brought for elder abuse and general negligence. After years of litigation, the matter proceeded to a two-week trial in the West District Superior Court located in Santa Monica.

On July 24, 2014, the Colorado Court of Appeals ruled in the matter of Minturn v. Definitive Renovations, upholding the trial court’s entry of Summary Judgment in favor of Wood, Smith, Henning & Berman’s client, Definitive Renovations.

This case expands the scope of design professionals' liability under California common law. The Supreme Court of California has held that, where a design professional plays a primary role in the design and construction of a project, a design professional may be held liable to ultimate purchasers even if the professionals lack privity with those third parties. A homebuyer or third party may now bring claims against such a principal design professional for negligence under common law tort theories and potentially for violations of the construction standards set forth in SB 800. On a larger scale, businesses should take note that the Supreme Court's action in this matter is representative of the growing trend in California to sideline privity as a requirement in negligence based actions.

A Ventura County jury returned a defense verdict in a nuisance and trespass case with multiple theories of liability which were fueling a whopping $8.9 million settlement demand.  WSHB trial lawyer Kevin Smith reported the jury took little time to return the defense award in this three week trial.