News Archive

Last week we witnessed a horrible act of violence in Atlanta in which 8 people, among them 6 Asian American women, were brutally killed by a lone gunman. While this event caught the attention of many Americans, sadly, it follows a succession of brazen acts of violence and many racist actions against Asian Americans in the past several years.

From its beginning, WSHB has been built on a policy of zero tolerance for discrimination and prejudice against any group of people based on race, ethnicity, gender, or sexual orientation. As a firm, we are repulsed by these acts of violence and discrimination against Asian Americans and stand in full support and solidarity with them.

The recent winter storms and devastation in Texas have drawn closer attention to a case that has made its way to the Texas Supreme Court. Texas’ primary power grid operator, Electric Reliability Council of Texas (ERCOT), faces a lawsuit that could determine future legal liability in this context.

In 2016, Panda Power Funds alleged that ERCOT improperly manipulated projections of the state’s power needs. Relying on these projections, Panda Power constructed three power plants to meet the state’s need. When the demand did not materialize, Panda Power lost more than $2 billion and filed suit against ERCOT. In response, ERCOT claims sovereign immunity shields it from liability. ERCOT is a private company, however, it is also overseen by the state, and sovereign immunity protects governmental bodies from certain liability.

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.

California Insurance Commissioner Ricardo Lara has implemented a one-year moratorium on carriers non-renewing or cancelling residential property insurance policies resulting from the 2020 wildfires in areas within or adjacent to a fire perimeter after a declared state of emergency is issued by the Governor. On December 31, 2020, Commissioner Lara released the final ZIP codes protected from non-renewals for the 2020 wildfires. In total, 2.4 million policyholders and 563 ZIP codes are covered under the moratorium.

The moratorium was enacted “to address the long-term threats to Californians.” Commissioner Lara pledged to “continue to work with local communities and state leaders to ensure a healthy insurance market for everyone.”

A Superior Court Judge in Durham County, North Carolina recently ruled in favor of a number of restaurants in their collective action against Cincinnati Insurance for loss of business income due to the Covid-19 pandemic in a case captioned North State Deli, LLC, et al. v. The Cincinnati Insurance Company, et al., Case No. 20-CVS-02569.

In a departure from courts across the country, the presiding judge held that government orders restricting the policyholders’ use of their restaurants constituted “direct physical loss” thus triggering the policies’ Business Income coverage. The court reasoned that the phrase “direct physical loss” “includes the inability to utilize or possess something in the real, material, or bodily world, resulting from a given cause with the intervention of other conditions” and therefore “describes the scenario where business owners…lose the full range of rights and advantages of using or accessing their business property.”

On October 1, 2020, California Governor Gavin Newsom signed three bills sponsored by the California Department of Insurance and Commissioner Ricardo Lara to enable future wildfire survivors to recover faster and protect the rights of domestic workers during an emergency.

Senate Bill 872 was introduced on January 21, 2020 by Senator Bill Dodd. The new law will expand the definition of additional living expenses that must be paid to homeowners for losses incurred in a state of emergency and require an advance payment of no less than four months for costs such as housing, furniture rental and transportation. The new law will also mandate an advance payment of no less than 25 percent of the policy limit for lost contents without submission of an inventory form and require insurers to provide homeowners a 60-day grace period for payment of residential premium after an emergency. Additionally, insurers will be barred from deducting the land value from payouts for insureds who build on new lots.

WSHB is proud to announce the opening of its newest location in Charleston, South Carolina.

At the helm of WSHB's newest location will be WSHB partner William W. Silverman. Admitted to practice in both South Carolina and North Carolina, Silverman enjoys a well-deserved reputation for consistent results in complex commercial litigation. His varied practice includes the defense of construction and corporate disputes, insurance coverage, first and third party insurance bad faith litigation, environmental, and catastrophic injury matters. He is an “AV Preeminent” rated attorney by Martindale-Hubbell, and has been listed in Business North Carolina’s Legal Elite in the Young Guns and Construction categories.

WSHB is proud to announce the opening of its newest location in Boston, Massachusetts. The firm’s Boston location will provide the firm’s full array of nationwide legal services in both litigated and non-litigated practice areas.

WSHB Partner Christopher J. Seusing has been selected as the managing partner for the firm's newest location. Seusing called Massachusetts home for many years, first as he earned his undergraduate degree, cum laude, from Stonehill College in Easton, MA, and then as he went on to earn his law degree, cum laude, at Suffolk University in downtown Boston. He honed his litigation skills practicing throughout Massachusetts following his graduation from Suffolk.

The California Insurance Commissioner has now issued emergency notices to all admitted and non-admitted property and casualty insurance companies doing business in California to assist survivors, displaced residents, and businesses impacted by the current and recent wildfires throughout the state. The emergency order was issued in connection with Governor Gavin Newsom’s August 18, 2020 emergency declaration that was issued due to the wildfires.

Lara stated that “[w]ildfire survivors need immediate help as they start on the long road to recovery” and “urge[d] insurance companies to do the right thing for these survivors and help them through this difficult process.” Specifically, Lara implored all property and casualty carriers to implement expedited claims handling procedures and billing grace periods to aid the quick recovery of residents and businesses during the emergency.

Covid-19 related restrictions have lifted across the United States (and in some instances then imposed again). With businesses reopening physical locations and the prospect of schools holding in-person classes this fall, owners, board members, executives and managers all must address potential coronavirus related liabilities. Any owner or operator of a facility where in-person contact occurs is at risk for civil suits and claims for potentially exposing employees, customers or other members of the public to the coronavirus.

In response to these risks, businesses and other institutions have asked employees, customers, and patrons to sign liability waivers. Examples include President Trump’s reelection campaign asking supporters to execute liability waivers before attending rallies. This practice has gained significant media attention and has led many to wonder whether these waivers are enforceable.

Insurers investigating claims in Colorado should be aware of new limits on their ability to assert a failure-to-cooperate defense in litigation. Effective September 15, 2020, C.R.S. § 10-3-1118 imposes a number of hurdles on insurers seeking to argue that coverage is not available because an insured did not cooperate in the investigation of a claim.

Before an insurer can assert a failure-to-cooperate defense in first-party actions, the statute requires compliance with several conditions. First, the insurer must request information from the insured or their representative in writing, via certified mail or electronic means, if the insured or their representative have consented to receive electronic documents from the insurer.

National law firm WSHB is proud to announce the opening of their newest location in Sonoma County, California. Situated in the heart of Northern California’s wine country, the firm’s Sonoma County office provides the firm’s full array of nationwide legal services in both litigated and non-litigated practice areas.

Partner Steven J. Disharoon will be at the helm of this new location. A ten year veteran of the firm, Disharoon relocated from the firm’s Northern California office in Concord to serve as managing partner in Sonoma County. A vastly experienced trial and appellate attorney, Disharoon specializes in complex civil litigation, intellectual property, and transportation, as well as environmental claims and natural disasters. Outside the courtroom, he is an equally skilled negotiator of complex and contentious cases, who also provides his services for transactional and other non-litigated matters.

WSHB is proud to announce our top three national ranking on The American Lawyer’s 2020 Diversity Scorecard.

American Lawyer’s Diversity Scorecard records the average number of full-time-equivalent minority attorneys at Am Law 200 and National Law Journal 250 law firms in the calendar year 2019.

WSHB jumped 23 places from their ranking in the previous year, landing on their current spot at no. 3 on this year’s list.

WSHB partner Kimberly Jones was recently elected to the position of Chair-Elect of the Florida Bar's Appellate Practice Section.

This 1,500-person organization is devoted to promoting excellence in Florida's state and federal appellate courts. Its members include lawyers from a wide spectrum of appellate practice areas and judicial representatives from each of Florida's appellate courts. The Section produces several publications on appellate issues, teaches many legal education seminars, and is at the forefront of providing pro bono appellate services to Florida litigants.

In a landmark decision, the Pennsylvania Superior Court ruled on the critical issue of failing to preserve evidence and created an important carve out to the prior case law on this important evidentiary issue. This closely watched decision has been the subject of much discussion.

“In many instances, a business’ failure to maintain or preserve evidence can be fatal to the defense of a hotly contested action,” said WSHB Partner Andrew Kessler, who handled the appeal on behalf of the prevailing party. Kessler, managing partner of the WSHB Pennsylvania office believes that, “This case gives rise to development of a strong defense in those instances where evidence is inadvertently destroyed and removes the presumption that the party who destroyed the evidence did so because it was unfavorable to them. Avoiding the thought is a juror’s head that “they got rid of the evidence” can be vital in these types of cases where these issues arise. Avoiding the presumption helps to keep the playing field level.”

Much like the global impact from Covid-19 not all occurrences can be foreseen. This is why many contracts contain a provision known as a force majeure clause. Force majeure clauses are especially important in times like these – when businesses are shutting down, the government is ordering the labor force to stay home, and supply chains are interrupted or non-existent.

The question many in the construction industry and beyond are asking is whether the Covid-19 pandemic excuses performance under a contract. As usual when it comes to the law, it depends.

WSHB Partner Constance Endelicato was quoted in the June 8, 2020 Skilled Nursing News article, "Nursing Homes Face Fines, Lawsuits Unless They Test for Covid-19 — But Access Often Out of Their Hands"

In this article, Ms. Endelicato wrote: 

“Testing capability is riddled with a number of factors that often are out of the hands of the nursing facility,” Constance Endelicato, a partner at the law firm Wood, Smith Henning & Berman who represents health care providers that include SNFs, wrote to Skilled Nursing News in an e-mail on June 3. “The facilities face the daunting task of attempting to abide by the governing recommendations, keeping in mind that with the exception of New York, recommendations will not necessarily define the standard of care under the pandemic crisis. We need to remember that the entire medical community was not prepared for this unknown and eerily unpredictable virus.”

Attorneys Kelly Waters, Jill Mucerino, and Sam John 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.

Wood Smith Henning & Berman LLP is pleased to announce that Vincent P. Beilman III has been elected WSHB’s London Market Chair.

Vince Beilman enjoys international acclaim for his savvy counsel to various syndicates throughout the London market. From his early years where he was a secondee to later on where he developed a reputation as the "go to" lawyer for all matters of issue in the States, Beilman has an impressive record of consistent results.

"I am fortunate to have so many close relationships in the London market, professionally and personally," said Beilman. From the time I was a secondee to now, London is home. I look forward to the time when I will be able to sit down in person with our friends on the other side of the pond."

WSHB Partner Constance Endelicato was quoted in the May 4, 2020 Insurance Journal article, "Nursing Home Insurance Market In Need of Care."

In the article, Ms. Endelicato described the COVID-19 exposures as “endless,” and said the facilities’ vulnerability to exposure has been “riddled with various complicating factors.”

“The lack of testing capability, the delayed symptoms, the ongoing admission of new residents, and the residents’ fundamental rights to have family and friends as visitors, may also play a role in exposure as these factors are thought to be ways in which the virus can spread,” said Ms. Endelicato.

New Jersey joined several other states in temporarily allowing remote notarizations during the recent coronavirus outbreak. On April 14, 2020, Governor Phil Murphy signed legislation (A-3903/S-2336) temporarily allowing notaries to conduct remote notarizations using "communication technology." The legislation takes effect immediately and expires upon the rescission of Governor Murphy's March 9, 2020 Executive Order declaring a state of emergency as the result of coronavirus.

The remote notarizations must comply with several requirements including the following.

Insurers writing policies of any type in Colorado should be aware of emergency regulations imposed by the Colorado Division of Insurance during the novel coronavirus pandemic. Issued on March 27, 2020, Bulletin B-5.38 is intended to allow consumers with property and casualty insurance policies to retain coverage throughout the present public health emergency.

The Division directed all insurance companies issuing coverage to personal and commercial policyholders to make “reasonable accommodations” to prevent policyholders from losing coverage due to cancellation or non-payment of premiums.