Publications

As businesses increasingly rely on chatbots and third-party tracking tools to enhance used experience on their websites, they also face heightened scrutiny under privacy laws. The recent case of Valenzuela v. Kroger outlines the challenges businesses may face when utilizing these technologies, particularly as it relates to claims alleging unauthorized data collection.

In the case of Lorenzo v. Calex Engineering, Inc., No. B331177 (March 28, 2025), the California Court of Appeal reinforced the scope of a developer's duty of care under California Civil Code section 1714. The court reversed the trial court's grant of summary judgment in this wrongful death lawsuit arising from a fatal pedestrian accident involving a dump truck en route to an unauthorized construction staging area. The court applied the Rowland factors and determined that nearly all weighed against carving out an exception to the general duty of care. Further, the court held that proximate cause remained a triable issue, emphasizing the defendants' permit violations potentially increased the very risk the permitting process was designed to avoid. This decision underscores the legal responsibilities developers and contractors face when deviating from approved construction plans without proper authorization or oversight.

The question of whether to enforce an arbitration agreement or proceed with traditional litigation is far from perfunctory. Indeed, it's a strategic calculation that can significantly impact the outcome of a dispute. Whether advising corporate clients, representing individuals, or navigating complex commercial relationships, attorneys must weigh the unique advantages and limitations of each forum. Arbitration offers privacy, efficiency, and finality. In contrast, litigation provides broader discovery, appellate rights, and precedential development.

On April 21, 2025, Georgia Governor Brian Kemp signed into law two historic tort reform measures. Senate Bills 68 and 69, mark the first major tort reform since 2005 and the most comprehensive overhaul of the state's civil litigation framework in decades. These legislative developments reflect a deliberate and long-awaited shift in Georgia's legal climate, as policymakers respond to mounting concerns about disproportionate "nuclear verdicts," plaintiff-favored procedures, and rising litigation costs that have rippled through industries.

Florida's latest proposed condominium law, HB-913, introduces critical changes that will have a direct impact on condominium associations, unit owners, property managers and insurers. With new requirements for financial transparency, dispute resolution, and structural compliance, these updates aim to mitigate financial and legal risks while ensuring long-term property stability. However, the added regulatory burdens may pose challenges for associations and insurers, particularly regarding compliance with milestone inspections, reserve funding, and insurance eligibility. The bill is currently under review in committee and if passed will go into effect on July 1, 2025.

In Raab v. Nu Skin Enters., Inc., the Washington Supreme Court resolved a long-standing procedural question regarding the enforcement of contractual forum selection clauses. The case centered on whether a motion to dismiss for improper venue under CR 12(b)(3) is the correct mechanism for enforcing such clauses when they designate a mandatory non-Washington forum. In a decision that overrules Voicelink, Inc. v. Superior Court, 86 Wn. App.618,937 P.2d 1016 (1997), and aligns with federal precedent set by Atlantic Marine Construction Co. v. United States District Court, 571 U.S. 49 (2013), the court held that arguing improper venue under CR 12(b)(3) is not the appropriate procedural mechanism. The ruling provides critical guidance for litigants and courts handling contractual disputes involving forum selection clauses.

The recent tariff storm imposed by the U.S. government is predicted to have significant ramifications for the construction industry, particularly in sectors reliant on imported steel, aluminum, and lumber. These policy changes introduce new risks, contract disputes, and regulatory challenges that must be carefully navigated.

California's workers' compensation system is built on a trade-off. Employers assume liability for work-related injuries without regard to fault, and in return, employees forfeit the right to sue their employers in civil court for those injuries. This "compensation bargain" is codified in California Labor Code sections 3600 through 3601 and forms the foundation for the exclusivity rule, which shields employers and co-workers from civil liability in most workplace injury cases.

The New York Court of Appeals departed from long-standing precedent in its recent ruling in Flanders, allowing plaintiffs to pursue negligence claims for injury following a dog bite (Flanders v. Goodfellow, 2025 NY Slip Op 02261).

In recent years, Colorado has faced an escalating housing crisis, characterized by soaring prices and a shortage of affordable options. As the demand for housing continues to outpace supply, legislators are now focusing on the root cause of the housing crisis. One is the significant legal impediments that hinder the construction of much-needed residential developments that provide Colorado residents with affordable housing options. Central to this issue are the complexities surrounding construction defect claims, tenant protections, and energy code regulations. These legal frameworks, while designed to safeguard the rights of homeowners and tenants, have inadvertently contributed to the stagnation of housing growth, particularly in the realm of attached housing products such as condominiums and townhomes.

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.

The 2025 Florida legislative session is in full swing, and a flurry of proposed bills is poised to reshape the insurance landscape in profound ways. From sweeping reforms in Senate Bill 554 to a host of new proposals targeting property insurance claims, litigation financing, and insurer practices, these measures could hit insurers operating in Florida with increased compliance costs, heightened scrutiny, and a more contentious claims and litigation environment. While many of these bills are pitched as consumer protection lifelines, the reality for insurers may be a tangle of unintended consequences—higher operational costs, liquidity risks, and a surge in disputes. At Wood Smith Henning & Berman, we’re tracking these proposals closely to keep you informed and prepared.

The recent wildfires in Los Angeles serve as a stark reminder of the importance of adequate property and fire insurance, particularly for homeowners in high-risk areas. In the devastating aftermath, many homeowners are discovering that their insurance policies fall short of the actual costs required to rebuild. As a result, litigation is increasingly targeting insurance agents and brokers, alleging negligence for failing to recommend or secure sufficient coverage, otherwise known as underinsurance.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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

In a recent, pivotal decision, Stone v. Alameda Health System, the Supreme Court of California held that public employers are not subject to civil penalties pursuant to California’s Private Attorney General Act of 2004 (“PAGA”) and that the California meal and rest break laws at issue in the case do not apply to public agencies. The Court further clarified that Labor Code section 220(b)’s definition of “municipal corporation” includes all public employers.

In a notable decision, the Oregon Court of Appeals recently declined to allow a defendant to pursue a comparative fault defense in a habitability lawsuit. By way of summary, Ms. Thomas, the Plaintiff, was a tenant in a duplex owned by Dillon Family Limited Partnership, the Defendant. The refrigerator in Plaintiff’s apartment began to leak water leaving puddles that extended into her adjacent living room. Thomas v. Dillon Family Limited Partnership II, 319 Or. App. 429, 420 (2022). Plaintiff indicated that she was having to mop puddles up at least twice a day. Id. 

In a significant shift, The California Supreme Court in Quach v. California Commerce Club, Inc., has aligned state law with a recent development in federal precedent, eliminating the arbitration-specific prejudice requirement when determining waiver of the right to enforce arbitration agreements. Historically, both California and federal courts required a showing of prejudice to establish waiver in the context of arbitration, a standard rooted in a policy favoring arbitration over litigation. However, following the U.S. Supreme Court's ruling in Morgan v. Sundance, Inc. (2022) 596 U.S. 411, which clarified that arbitration agreements should be treated like any other contract, the California Supreme Court has now repealed its prejudice requirement. This decision underscores the principle that arbitration agreements are placed on equal footing with other contracts, ensuring that waiver determinations are based solely on general contract law principles.

As the construction industry continues to thrive, it also grapples with numerous challenges that have the potential to impact project timelines, budgets, and overall success. The key issues of project delays, labor shortages, supply chains, increased costs, and expanding timelines create challenging claims, and coverage dilemmas that plague the claims process. This article looks at some of the bigger issues affecting the construction industry, and what we can expect going forward into 2025.

In the ongoing matter of North River Insurance Company v. James River Insurance Company, the Ninth Circuit recently turned to the Nevada Supreme Court to resolve an important legal question that could determine the outcome of a recurring dispute between insurers. The case arises from a wrongful death lawsuit following a murder at a Las Vegas apartment complex. The settlement exceeded the primary insurer’s policy limits, but it remained within the combined limits of both the primary and excess insurers. The excess insurer, after covering the remainder of the settlement, filed suit against the primary insurer in California federal court, claiming a breach of its duty to settle as well as the implied covenant of good faith and fair dealing. The primary insurer moved to dismiss the claims on the grounds that Nevada does not recognize equitable subrogation as between a primary insurer and excess insurer, and the district court (Central District of California) granted the motion. The excess insurer appealed to the Ninth Circuit Court of Appeals, who in turn, sought clarity on whether Nevada law permits equitable subrogation between insurers in such cases. Specifically, the Ninth Circuit certified the following question to the Nevada Supreme Court pursuant to Nev. R. App. P. 5(a), stating that the answer to the certified question is essential to the outcome of the case:

Under Nevada law, can an excess insurer state a claim for equitable subrogation against a primary insurer where the underlying lawsuit settled within the combined policy limits of the insurers?

In Limprasert v. PAM Specialty Hospital of Las Vegas LLC (2024), the Nevada Supreme Court addressed two critical issues concerning claims for professional negligence in Nevada. First, it clarified the standard for distinguishing professional negligence claims (which requires a supporting affidavit from a medical expert under NRS 41A.071) from ordinary negligence claims. This clarification effectively overruled the common knowledge exception previously established in Estate of Curtis v. South Las Vegas Medical Investors, LLC, 136 Nev. 350, 466 P.3d 1263 (2020). Second, the court confirmed that pursuant to Baxter v. Dignity Health, 131 Nev. 759, 357 P.3d 927 (2015), NRS 41A.071, the affidavit requirement was satisfied if it was incorporated by reference in the complaint and executed before the complaint was filed.

The Court of Appeal just issued a groundbreaking case in Audish v. Macias (2024) 102 Cal.App.5th 740 (review denied August 21, 2024), which provides welcome relief to the defense community with respect to its ability to establish the reasonable market value of past and future medical treatment claimed by personal injury plaintiffs. The case is important for at least two reasons: (1) it bolsters the import of Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, which held, in a medical malpractice case, that future Medi-Cal and other insurance benefits are admissible for determining the reasonable value of medical services; and (2) it provides a rebuttal case to language in Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, which rejected the notion that future Medicare/insurance benefits are admissible to establish the reasonable value of medical services.

In an important ruling for commercial property owners, the New Jersey Supreme Court in Alejandra Padilla v. Young II An, (A-43-22) addressed the owners' obligations regarding the maintenance of public sidewalks and answered the question: Do owners of vacant commercial lots have a duty to maintain adjacent public sidewalks in reasonably good condition?

In a ruling that has significant implications for the construction industry, the Massachusetts Appeals Court in Lessard v. R.C. Havens & Sons, Inc., recently clarified the scope of coverage under commercial general liability (CGL) insurance policies concerning construction defects. For the first time, the court determined that construction defects, standing alone, do not qualify as "property damage" under these policies. This decision that could reshape the landscape of liability for contractors and homeowners alike, potentially altering how parties approach risk management, contract negotiations, and insurance underwriting. As the industry grapples with the ramifications of this ruling, stakeholders may need to reconsider their legal strategies and the allocation of responsibility in construction projects. This landmark decision not only shifts the understanding of what constitutes insurable damage, but also sets a precedent that could influence future legal interpretations and coverage disputes across the nation.

In a new arbitration-related ruling, a California court in the case of Cook v. University of Southern California, found that an arbitration agreement requiring an employee to arbitrate all claims, even those not arising from the employment relationship, for an infinite amount of time, was unconscionable and entirely unenforceable. The decision arose from a lawsuit in which the plaintiff alleged discrimination and harassment by her employer and two co-workers. Despite the defendants' collective motion to compel arbitration based on an agreement signed by the plaintiff as a condition of employment, the court denied the motion, citing the purportedly pervasive unconscionability of the agreement. The defendants appealed the decision.

In a recent legal battle before the Connecticut Supreme Court, a plaintiff challenged her employer's handling of a hostile work environment claim after facing racially discriminatory statements from a coordinator in her department. O'Reggio v. Commission on Human Rights and Opportunities et al., highlights the complexities of defining supervisory roles and the implications for vicarious liability in discrimination cases.

In a significant ruling, Texas Department of Insurance et al. v. Stonewater Roofing, Ltd., Co., 2024 WL 2869414 (June 7, 2024), the Texas Supreme Court upheld state regulations mandate licensing for public insurance adjusters and prohibit dual roles as both a contractor and adjuster. This decision came after Stonewater Roofing, a roofing contractor, challenged the constitutionality of these regulations, arguing they violated First and Fourteenth Amendment rights. The court's decision has critical implications for insurers and contractors, reinforcing the legal boundaries within which they must operate.

On June 18, 2024, Governor Gavin Newsom and several labor and business groups came to an agreement regarding the future of the highly contentious California Private Attorney General Act known as PAGA. The agreement proposes to pass bipartisan legislation amending the statute. Should the legislation pass, the agreement would successfully halt a November ballot initiative for the voters which proposed eliminating PAGA altogether. To date, the agreement has been welcomed by businesses who have long criticized widespread, abusive, and costly PAGA litigation. Although the proposed amendments add to a business's quiver of possible defenses, it remains to be seen how effective these will be, and we do not expect the amendments to halt the avalanche of PAGA litigation statewide.

In a unanimous decision, the United States Supreme Court recently delivered a significant opinion in maritime law. The holding in Great Lakes Insurance SE v. Raiders Retreat Realty Co, LLC, No. 22-500 stands for the proposition that choice-of-law clauses in maritime contracts are presumptively enforceable under federal maritime law, subject only to very narrow limited exceptions

The recent Illinois appellate case of King v. El Paraiso Del Pacifico, Inc., 2024 IL App. (2d) 230026, has raised important considerations regarding the duty of care businesses owe to their patrons, particularly in relation to accidents caused by out-of-control drivers. In this case the court held that a car crashing through the front entrance of a restaurant was reasonably foreseeable and not an “intervening or superseding” cause of a patron’s injuries. The court determined that the accident fell within the scope of the business's duty of care. This decision is of high importance because previously the Illinois Supreme Court found there was reluctant to impose a duty to protect invitees against out-of-control drivers. This article will delve into the facts of the case, highlight the significance of this decision, and discuss its implications for businesses and insurance carriers in the state of Illinois.

The New Jersey Supreme Court recently ruled unanimously that standard commercial property insurance policies do not cover business interruption losses caused by the COVID-19 pandemic, aligning with many other courts around the country. The case, AC Ocean Walk, LLC v. Am. Guarantee Liab. Ins. Co. _ N.J._ (Jan. 24, 2024), centered around a casino operator in Atlantic City who claimed losses due to the presence of COVID-19 particles on its premises and the resulting governmental shutdown of its operations.

How do you define the term "contractor?" In the case of California Specialty Insulation Inc. v. Allied World Surplus Lines Insurance Company, No. B324805 (2024), the court ultimately honored the reasonable expectations of the insured and ordered that the insurer defend and indemnify in an underlying suit stemming from the policy. This case involves a commercial general liability insurance policy issued by Allied World Surplus Lines Insurance Company (Allied) to California Specialty Insulation, Inc. (CSI). The central issue is whether Allied World is obligated to defend and indemnify CSI against a negligence claim stemming from a construction site accident. The dispute hinges on the interpretation of a policy exclusion for bodily injury to employees of any "contractor," a term not defined in the policy.

The Communications Decency Act, codified at 47 U.S.C. Section 230, has long been a foundational tenet of law governing the internet, providing crucial protections for online platforms. However, it is under intense scrutiny once again as the law faces significant re-examination and potential reform. The new legislation proposes to sunset Section 230 during the final week of 2025, effectively setting a timer on Congressional action and giving lawmakers only eighteen months to establish a new standard for liability. This legislative move seeks to address mounting concerns about the role of online platforms in hosting and moderating user-generated content. At the crux of the issue is whether online platforms can be held responsible for the content that users post.

In the case of Pine Management v. Colony Insurance Company, 23-624-cv (2dCir. Mar. 26, 2024), the United States District Court of the Southern District of New York provided essential guidance regarding when a pre-suit demand constitutes a claim triggering the obligation to notify your liability insurer under New York law.