Kathryn Anne Grace (Partner-Charlotte, NC) and Christine R. Hogan (Partner-Baltimore, MD) secured affirmance of a dismissal from the Appellate Court of Maryland on behalf of our global airline carrier client. The plaintiff, a passenger on our client’s flight, alleged the airline wrongfully removed him and his children from a domestic flight from Atlanta to Baltimore and, as a result, he was emotionally distressed. This segment of the trip was the final leg of a return flight from Italy, thus part of an international journey. The plaintiff claimed the airline unjustly accused him of uttering profanities at the crew and wrongfully ejected him, describing the family’s removal as "wrongful, unfair, unjust, malicious, and callous.” He sought to recover monetary damages for emotional distress.

In an 11-page opinion, the Appellate Court confirmed first that the Montreal Convention applied to the claim and second that the Convention did not recognize his claim as viable. The three-judge panel affirmed the trial court’s dismissal of the passenger’s lawsuit against our client, explaining that the multinational treaty requires any cause of action to be predicated on a physical injury. The panel further observed that, even assuming the plaintiff had sustained a qualifying injury, his claims were time-barred as he filed beyond the two-year statute of limitations provided for by the Convention.

Nigel Greene (Of Counsel-Philadelphia) and Angela Heim (Of Counsel-Philadelphia) prevailed in the Superior Court of Pennsylvania on the plaintiff's appeal of the dismissal of Wilson Elser’s client, a Philadelphia bus tour company, based on a motion for judgment on the pleadings. The plaintiff alleged that our client allowed her to exit a tour vehicle at a location where a depressed roadway grate created a tripping hazard. At the trial court level, Nigel successfully argued that the company had no legal responsibility for the condition of the roadway and owed no duty to the plaintiff regarding that condition.  The court concurred, granting Nigel’s motion for judgment on the pleadings and denying the plaintiff’s motion for reconsideration. On appeal, Angela wrote the client’s brief, and the Superior Court affirmed the trial court's decision, holding that the complaint failed to allege a legally cognizable breach of duty –even if all allegations were taken as true.

​Robert Cooper (Of Counsel-Los Angeles) and Luanne Rutherford (Of Counsel-San Francisco) secured a decision by the First Appellate District for the California Court of Appeal affirming summary judgment by the San Mateo Superior Court in favor of Wilson Elser’s client, Portola Valley Ranch Association. The Association had denied an application for construction of an accessory dwelling unit and a new garage submitted by Association members Craig and Michelle Opperman. The Oppermans sued the Association, alleging their application had been wrongfully denied. Luanne Rutherford filed a motion for summary judgment on behalf of the Association, citing the Business Judgment Rule as well as extensive evidence to show that the Association had conducted a fair investigation before denying the application. The Superior Court granted summary judgment in favor of the Association and awarded the Association $140,419.49 for its attorneys’ fees and costs. The Oppermans appealed to the California Court of Appeal, First District. Robert Cooper prepared the briefs and submissions and argued the appeal before the Court of Appeal. The Court of Appeal affirmed summary judgment in favor of the Association and affirmed the award of attorneys’ fees and costs. The Court of Appeal, sua sponte, certified its opinion for publication. 

Ryan Williams (Partner-Denver), Edward O’Brien (Partner-Louisville), and Gabrielle Lalonde (Associate-Denver) secured an appellate victory in the Colorado Court of Appeals for Wilson Elser’s client, Jim Black Construction. The court affirmed the trial court’s judgment in favor of the client in its lien foreclosure and breach of contract action against a property owner for whom it provided services. The panel rejected the property owner’s challenges to the validity and amount of the mechanic’s lien and upheld the trial court’s findings that the lien was not knowingly excessive. The court also affirmed the contract judgment, concluding that the parties’ proposal and work authorization are to be construed together and that the record supported the scope of work and the charges awarded. This decision allows Jim Black Construction to proceed toward foreclosure and enforcement upon issuance of the mandate, absent any further review.

​Jacqueline Bertelsen (Of Counsel-Orlando)​ Noelle Sheehan (Partner-Orlando) and Melissa Krepps (Of Counsel-Orlando) successfully had their summary judgment victory upheld in the Florida Sixth Circuit Court of Appeal in a nursing home negligence and wrongful death lawsuit. Noelle and Melissa relied on provisions of an asset purchase agreement to prevail on their motion for summary judgment. Following the entry of summary judgment, the plaintiff moved for rehearing. Noelle and Melissa brought in Jacqueline Bertelsen from the firm’s Appellate Practice group to assist. Jacqueline opposed the motion for rehearing as untimely, and the trial court agreed. The plaintiff then appealed to Florida’s Sixth District. The Sixth District issued an Order to the plaintiff to show cause as to why the appeal should not be dismissed as untimely. The plaintiff argued that the untimely appeal was due to counsel’s excusable neglect. Jacqueline worked with Noelle to prepare a comprehensive response brief that demonstrated the legal insufficiency of the plaintiff’s brief and revealed factual inconsistencies between the plaintiff’s argument and the record. As a result, the Sixth District dismissed the appeal and upheld summary judgment for our client. This victory demonstrates how Wilson Elser’s attorneys work seamlessly across practice areas to deliver successful client outcomes. ​

Chris Peticca (Associate-White Plains, NY) defended a hospital in a case in which the plaintiff pled that the our client’s conduct was “careless” and “reckless,” and negligent. In conferences and, ultimately, by motion submitted on the court’s invitation, Chris convinced Judge Frishman (Bronx County) to strike the “careless” and “reckless” language from the pleadings. The plaintiff appealed. On the appeal handled by Julia Audibert (Associate-New York, NY) and Judy Selmeci (Partner-New York, NY), the plaintiff challenged the timeliness of the motion and argued that the possibility of punitive damages lingers, including pursuant to Pub. H. Law 2801-d. We pointed out in response that none of that is right, arguing that the motion was made when the judge invited the defendant to submit it, so it was entirely within the court’s discretion to entertain the motion. In addition, Julia and Judy argued, the defendant is not a residential health care facility, so PHL 2801-d is not applicable. In addition, the plaintiff had not pled any facts to support a punitive claim and there could be no dispute that the language was prejudicial, and an order striking prejudicial language from pleadings is not appealable and the plaintiff had not sought leave to appeal. The First Department agreed that the order was not appealable but sua sponte granted the plaintiff leave to appeal – only to then agree with all of our other points and affirm.   

Michael Lowry (Partner-Las Vegas) obtained a dismissal for lack of federal jurisdiction over a complaint filed against a unit owners’ association for a residential high-rise building near the Las Vegas Strip. The plaintiff's complaint alleged that he sustained injuries after exposure to mold in the building. However, the plaintiff never pled facts supporting federal jurisdiction, even after being provided an opportunity to amend. The plaintiff appealed, but the U.S. Court of Appeals for the Ninth Circuit concluded that the complaint did not plead facts that created either diversity or a federal question, affirming the dismissal.

Jennifer Moran (Partner-Madison, NJ) was successful in a motion for summary judgment in June 2020. The firm’s client owned a home in Ocean County and his son (the plaintiff) fell off an extension ladder while helping his father (the firm’s client) with exterior house painting. The plaintiff suffered a severely broken ankle requiring multiple surgeries and resulting in permanent gait issues. The remaining claims in the case languished during COVID-19 before a trial, which resulted in a “no cause.” The plaintiff appealed the Order granting our client’s Summary Judgment win from 2020 and the no cause for the other defendant. Enter Robert Neff (Of Counsel-Madison, NJ), one of our office’s Appellate gurus, to handle the de novo review!  The Appellate Division issued an Order affirming Summary Judgment and the no cause judgment.

Melissa Murphy-Petros (Of Counsel-Chicago, IL), Brigitte Smith (Partner-Baltimore, MD), and Zachary Miller (Associate-Baltimore, MD) represented a provider of public transportation services in Baltimore City to those with physical disabilities. The legally blind plaintiff, a regular rider, filed suit after he suffered a severe fracture when he fell on ice while walking from his front door to our client’s bus. The plaintiff claimed that our driver was negligent in not assisting him while he walked to the bus as the driver was required to do, but admitted that he did not wait for the driver to help him on the day of his injury. The case was tried to a defense verdict by Brigitte and Zak and Melissa handled the appeal. The appellate court affirmed the judgment on the jury’s verdict. The only issue plaintiff raised on appeal was the trial court’s order denying his motion to strike a supplemental medical expert opinion that we disclosed approximately 10 days before trial. It was plaintiff’s position that this testimony at trial was the basis for the jury’s defense verdict and it should not have been allowed, so he was entitled to a new trial. In the end, the court agreed with our argument that plaintiff’s own dilatory conduct in discovery led to the late timing of our supplemental disclosure in the first place, so the trial judge did not abuse her discretion in denying plaintiff’s motion to strike. 

Jason Waters (Partner-McLean, VA) and Lauren Gilman (Associate-McLean, VA) won affirmance in the District of Columbia Court of Appeals from a Superior Court order granting summary judgment to our common carrier client. In his complaint, the plaintiff, a passenger on our client’s bus, alleged that he was injured when the bus operator negligently braked to avoid colliding with a vehicle. However, video evidence from the bus established that the passenger’s body barely moved when the bus braked. In affirming the trial court’s order granting summary judgement, the Court of Appeals agreed that the video evidence was sufficient to find that the plaintiff could not establish he was injured in the accident. The video showed that the minor collision “had almost no effect on him physically” and he did not exhibit any discomfort in the collision’s aftermath. Notably, the Court of Appeals also gave weight to the fact that the plaintiff did not speak with police about his injuries, directing attention to the police report from the incident that indicated nobody at the scene reported any injuries. Together, the court found that evidence demonstrated no genuine dispute of material fact, and the grant of summary judgment was proper. The opinion provides favorable case law moving forward in the District of Columbia for when video evidence directly contradicts a plaintiff’s claim they were injured, even when a plaintiff has subsequent medical records showing that he sought treatment for injuries.  

Alan Friedberg (Senior Counsel-White Plains, NY), Christopher Peticca (Associate-White Plains, NY), and Judy Selmeci (Partner-New York, NY) obtained affirmance of a summary judgment motion on behalf of our major hospital client, from the Appellate Division, First Department. Alan argued the motion before the five-panel bench, which asked probing questions of the plaintiff’s counsel, who was appealing the dismissal of his case by Bronx Supreme Court because the expert’s affidavit submitted by the plaintiff was insufficient to refute the allegations of the two experts presented by the defense. The EMTs that transported plaintiff’s decedent, while not employees of our client, wore hospital insignias, and the ambulance had a hospital emblem, as the result of a contract with the employers of the EMTs, which subsequently went bankrupt. Accordingly, plaintiff’s counsel was arguing that the EMTs were ostensible employees of our client. Essentially, the argument was that plaintiff’s decedent was provided with oxygen as the result of her abdominal pain, and when she arrived in the emergency room, her blood oxygen level was normal at 100 percent. Accordingly, while plaintiff’s decedent went into a code within nine minutes of arriving in the emergency room, the experts pointed out that she was properly treated for the abdominal pain and even for respiratory distress as she was rapidly brought to the hospital emergency room and was in stable condition at the time she arrived at the hospital’s emergency room. Both the Supreme Court Justice in Bronx County, and the Appellate Division Bench, readily understood the defense made out by the defense team, and appropriately granted and affirmed a dismissal in this case.

Edward O’Brien (Partner-Louisville, KY), Geoffrey Belzer (Partner-Chicago, IL), and Andrew-John Bokeno (Associate-Louisville, KY) recently succeeded in securing an affirmance of summary judgment in the Ohio Court of Appeals in a multi-claim civil lawsuit brought against the firm’s client, a manufactured home community. Plaintiffs, who were tenants in the client’s community, brought a civil action in Cuyahoga County Court of Common Pleas alleging the community failed to render cosmetic repairs to the plaintiff’s home, breached certain state statutes, and misrepresented certain aspects of the community and manufactured homes to the plaintiffs. The complaint set forth multiple legal theories of liability, including breach of contract, fraud and misrepresentation, breach of R.C. 5321.04, and violations of the Ohio Consumer Sales Practices Act. After the trial court granted our motion for summary judgment on all the above theories, the plaintiffs appealed the decision to the Ohio Court of Appeals’ Eighth Appellate District, which affirmed the trial court’s order granting summary judgment on each and every claim asserted against the client, finding no genuine dispute of material fact and entitling the community to judgment as a matter of law. As such, the Court of Appeals disposed of all of the plaintiffs’ causes of action against the firm’s client. 

Lori Jarvis (Of Counsel-McLean, VA) and Sung Che Jo (Associate-McLean, VA) successfully defended a homeowners association in the lower court when plaintiff condominium owners sued them for failing to affirmatively disclose sub-floor asbestos at the point of sale in 2013, arguing that the bylaws created such a duty. The plaintiffs sought $80,000 in economic damages and $350,000 in punitive damages. The plaintiffs appealed and Lori argued the appeal. In an unpublished opinion from the Virginia Court of Appeals, the court agreed with our client, the lower court, and Lori and Sung Che’s argument. Appellate Judge Lisa M. Lorish affirmed that the client’s alleged nondisclosure could not constitute fraud or concealment in the present case.

Catherine Hanrahan (Partner-Washington, DC) and Stuart Davis (Associate-Washington, DC) won an appeal before the District of Columbia Court of Appeals on behalf of a dental practice and one of its dentists after filing a motion to dismiss plaintiff’s complaint for improper service. D.C.’s highest court affirmed the trial court’s decision to dismiss the complaint due to the plaintiff’s multiple failures to prove service pursuant to Super. Ct. Civ. Rule 4. The Court’s opinion relied on substantial portions of Catherine and Stuart’s briefing, particularly the argument that actual notice of a claim is immaterial to the sufficiency of service of process. The appellate win not only saved the client needless litigation expenses but also provides a road map to effectively oppose similar deficient service of process cases in the future. 

Jane Young (Partner-Denver, CO) defended an insurer client that issued two excess policies to a health care provider, which provided up to $40 million in hospital professional liability coverage in excess of $2 million per medical incident underlying coverage. The insured was sued by hundreds of patients in Denver, Colorado, claiming a breach in the sterilization protocol of surgical instruments. The coverage issue was whether the hundreds of different claims by different patients constituted one medical incident or more than one medical incident under the excess policies. The insured argued all the claims should be grouped as one medical incident. Our client disagreed and, pursuant to the policy language, argued that each patient's claim constituted a separate medical incident. The insurer filed a declaratory judgment action, seeking a declaration that each claim constituted a separate medical incident. The Colorado Federal Court agreed with our client and granted summary judgment. The insured appealed to the Tenth Circuit. After oral argument, the Tenth Circuit affirmed and held that each patient's claim constituted a separate medical incident. Thus, our client does not have an obligation to pay any monies until any one claim exceeds $2 million, and only one claim did.

Michael Lowry (Partner-Las Vegas, NV) filed an amicus brief concerning a petition for a writ of mandamus pending before Nevada's Supreme Court. As background, a plaintiff in a personal injury case alleged a traumatic brain injury. The defense retained a Las Vegas neuropsychologist to perform neuropsychological testing and provide a report. After the report was disclosed, a discovery dispute arose about whether the testing materials and data generated could be disclosed to anyone other than the plaintiff's own neuropsychologist. The district court ordered the data be disclosed to the plaintiff's lawyers and neuropsychologist. The defendant petitioned the Supreme Court of Nevada to consider an interlocutory appeal of this order, arguing the neuropsychological community is obligated to safeguard the tests or risk the tests losing effectiveness. This obligation is now codified in NAC 641.234(3).

The neuropsychologist retained Michael to submit his own, separate amicus brief to emphasize how serious this issue is to both neuropsychology and litigants. NAC 641.234(3) attempts to balance the public interest in having access to valid neuropsychology measures against the private interests of civil litigants. The neuropsychologist urged the Supreme Court to follow NAC 641.234(3) and overturn the district court's order.
 

Miami, Florida, partners Raúl J. Chacón Jr. and Russell M. Pfeifer and associate Monika Ledlova secured an appellate victory in the Third District Court of Appeal with a written opinion affirming summary judgment they obtained in Miami-Dade County Circuit Court in a case involving a national retail client. The plaintiff filed a negligence lawsuit after tripping over a wooden display pallet at our client’s retail store. The trial court granted summary judgment based on the open and obvious doctrine, after the Miami team argued there were no hazardous conditions present on the premises and that the plaintiff’s fall resulted from her own lack of attention. Surveillance video of the incident played a pivotal role in supporting the team’s argument, showing the plaintiff’s failure to follow the designated pathway, and subsequently tripping over a wooden pallet on her second visit to the store the same day. The trial court ruled in favor of our client, granting summary judgment, and following a request for rehearing by the plaintiff reaffirmed its decision. The plaintiff appealed to the Third District Court of Appeal, which affirmed the summary judgment citing case law referenced in our answer brief. This win serves as a crucial precedent, strengthening the defense position for property owners and retailers statewide and opens the plaintiff to the recovery of taxable costs.

Kimberly Blair (Partner-Chicago, IL) and Chicago associates Robert Merlo and Thomas Duff represented the attorney for the wife in a very contentious divorce case; specifically, representing her in post-decree proceedings stemming from the husband’s refusal to turn over significant sums of money, over which he was held in indirect civil contempt and jailed. Subsequently, the husband filed suit against his ex-wife, his former business partner, and his wife’s attorneys (including our client) on allegations of aiding and abetting, intentional and negligent infliction of emotional distress, and civil conspiracy – suggesting that our client’s conduct was part of a nefarious legal strategy. Kim, Robert, and Thomas were successful at having the matter dismissed with prejudice at the trial court level based on the absolute litigation privilege. An impressive brief written on appeal by Robert and Thomas convinced the Appellate Court of Illinois, First District to affirm the trial court’s decision in an extensive opinion that further solidified the litigation privilege in the State of Illinois. 

Benjamin Greenfield (Partner-Philadelphia, PA) obtained a unanimous decision from the First Department Appellate Division, upholding denial of the plaintiff’s motion to certify its action as a class action on behalf of the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine and his refusal to pay for the damage. The plaintiff attempted to certify his claims as a class action, arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. The trial court, in denying plaintiff’s Motion to Certify, ruled that NYS Gaming Bulletin #22, which requires casinos to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron, is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” The Appellate Division affirmed this decision and specifically rejected the plaintiff’s contention that in publishing Bulletin 22, the Gaming Commission did not follow the rulemaking procedures set forth in the State Administrative Procedure Act, and agreed with the arguments set forth by Ben that the plaintiff’s claims involved unique circumstances that do not mirror those underlying the claims of the class proposed. Accordingly, the Court agreed that typicality is lacking and certification would not be proper. This is a notable decision that thwarts an attempted significant class action. At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.

Edward M. O'Brien (Partner-Indianapolis, IN) prevailed at the Indiana Court of Appeals in an insurance coverage dispute arising from a serious collision between two tractor-trailers. Eddie defended the firm's insurer client against claims for breach of contract and bad-faith denial of coverage, successfully persuading the trial court that the loss was not covered because the tractor-trailer driver did not meet the insurance policy's driver qualification requirements. In affirming, the Court of Appeals rejected the plaintiff's arguments that the loss was covered by the policy and that the policy terms were ambiguous. The Court of Appeals ordered its opinion published, meaning it is binding appellate precedent in Indiana.

Katherine Tammaro (Partner-Madison, NJ) received a unanimous affirmance for the NJ Supreme Court following oral argument in September. On December 12, the court affirmed Kate’s wins at the Trial and Appellate levels. Essentially, the court held that an employer’s liability insurer will never have a coverage obligation, including any duty to defend, in a suit by an employee against an employer when that insurer is paying workers’ compensation benefits and the policy at issue contains the New Jersey Part Two (Employers Liability Endorsement) exclusion for claims within the New Jersey workers’ compensation exclusivity bar exception or similar language, which the Court found to be clear, unambiguous, and in accordance with the public policy of New Jersey. 

White Plains, New York, partners Lori Semlies and Katherine McCrink and Steven V. DeBraccio (Associate-White Plains, NY)  ) received an affirmance from the First Department, granting our motion for summary judgment, seeking dismissal of claims for gross negligence and punitive damages against our client nursing home. The case involved a resident who, over a three-year time period (and a seven-year admission) sustained approximately 24 falls at our client’s nursing home. The plaintiff sued our client for negligence, the Public Health Law, and, as relevant to the appeal, gross negligence and punitive damages. Lori, Katherine, and Steven moved to dismiss the plaintiff’s claims for gross negligence and punitive damages, arguing that, in light of the myriad of progressively increasing fall protection protocols afforded to decedent, including close supervision and placement at the nursing station, there was no evidence of a willful disregard of the decedent’s rights, any conduct that rose to the level of gross negligence, or, as the First Department put it, “willful conduct that evidences a high degree of moral culpability so as to support a claim for punitive damages.”  The trial court agreed, and on appeal, the First Department affirmed the dismissal.  

Washington, D.C. partners Ryan Duffy and Kathleen Warin secured an appellate victory on behalf of the Financial Industry Regulatory Authority (FINRA) after obtaining dismissal of the plaintiff’s claims in federal district court. The plaintiff brought a number of claims against FINRA, including defamation related to a prior arbitration held in FINRA’s arbitration forum. After years of motions practice in the United States District Court for the District of Columbia, the court granted FINRA’s motion to dismiss, found the plaintiff’s claims were barred by the statute of limitations and arbitral immunity, and denied the plaintiff’s requests for leave to further amend the complaint. The plaintiff appealed to the United States Court of Appeals for the District of Columbia Circuit, where the Wilson Elser team obtained summary affirmance in a per curiam decision. The D.C. Circuit found that the district court properly concluded that the statute of limitations barred the claims at issue and that the plaintiff-appellant failed to plausibly allege any exceptions to avoid application of the statute of limitations. This led the D.C. Circuit to grant FINRA’s motion for summary affirmance.

Washington, D.C. partners Ryan Duffy and Kathleen Warin obtained a precedent-setting decision in the District of Columbia Court of Appeals on behalf of the Financial Industry Regulatory Authority (FINRA). The case involved the plaintiff’s attempt to remove information from her registration records, which are maintained by FINRA under the Securities Exchange Act of 1934. The plaintiff asserted claims for equitable expungement, declaratory judgment and a permanent injunction. The District of Columbia Superior Court dismissed the plaintiff’s claims based on collateral estoppel. On appeal, the parties engaged in several rounds of briefings after oral argument related to numerous complex issues raised by the plaintiff-appellant’s claims. Ultimately, the Court of Appeals found the Superior Court lacked subject-matter jurisdiction because the claims at issue arose under federal law and were within the exclusive jurisdiction of the federal district courts. Importantly, the court also concluded that the plaintiff-appellant’s equitable claims alleged remedies rather than proper causes of action under District of Columbia law. As a result, the Court of Appeals affirmed the dismissal of the plaintiff’s claims in favor of FINRA. This hard-fought decision provides significant precedential guidance under District of Columbia law and will have a substantial impact on many other equitable expungement claims filed in the District of Columbia.

Louisville, Kentucky, Of Counsel Doug Kemper and Associate Cyrus Dutton obtained affirmance of a case in which the plaintiff and our client were involved in a motor vehicle accident. After the accident, our client exited his vehicle and pulled the plaintiff out of his driver-side door. Upon making contact with the ground, the plaintiff broke bones in his foot and ankle. The plaintiff filed suit almost two years after the accident, claiming that the statute of limitations of the Motor Vehicle Reparations Act (MVRA) should apply. The Meade County Circuit Court dismissed the plaintiff’s Complaint on Summary Judgment. The plaintiff appealed the trial court’s order, and on appeal, the Kentucky Court of Appeals found that the appellant’s injuries did not arise out of the use of a motor vehicle, but were caused by the third-party intentional tort of assault. As such, the Court of Appeals found that the two-year statute of limitations under the MVRA did not apply; rather, the appellant’s complaint was barred by the one-year statute of limitations for personal injury claims. 

A Chicago office team comprising partners Kimberly Blair and Joseph Stafford and associates Robert Merlo and Thomas Duff secured the First District Court of Appeals’ affirmance of a dismissal with prejudice of the plaintiffs’ third amended complaint for legal malpractice against our law firm client. A the circuit court level, the team brought in our client’s predecessor counsel as a third party, alleging that because discovery in the underlying case closed on their watch, there was nothing our client could have done to remedy the alleged malpractice. The predecessor counsel filed a motion for summary judgment on our third-party complaint based on the successor counsel (viability) doctrine, and the court denied it, holding that by the time it appeared in the underlying case, nothing our client could have done would have prevented the unfavorable outcome for the plaintiffs in the underlying action. After that ruling, the plaintiffs were given one more chance to state a claim, but they would have had to wholly shift their theory of malpractice. The court then dismissed that complaint (with prejudice) because the plaintiffs’ allegations about what they would have done were contradicted by what they actually did in response to the underlying judgment, through yet another successor attorney.

On appeal, the plaintiffs argued, among other things, that the district court judge was incorrect to hold, as a matter of law, that no arguments could have defeated the underlying dispositive motions and improperly took judicial notice of post-judgment proceedings from the underlying case in dismissing the plaintiffs’ “last-ditch” third amended complaint. The First District affirmed, and comprehensively laid out why it agreed with our many arguments in the Response Brief. Notably, the First District’s conclusion in its published opinion essentially mirrored our conclusion in our Response Brief.
 

Edward M. O'Brien (Partner-Louisville, KY) and Andrew-John Bokeno (Associate-Louisville, KY) recently wrapped up a commercial roofing case heavily litigated for 10 years. The plaintiff, a used car dealership, sued our roofing system manufacturer client, alleging that a new roofing system installed on a building formerly occupied by the plaintiff failed, causing substantial property damage. The plaintiff had demanded $750,000 in damages. Ten days before a scheduled jury trial, the trial court granted Eddie and AJ’s motion for summary judgment, finding that the plaintiff was not the real party in interest because it did not own the building at issue and the plaintiff had failed to show that it suffered any compensable damages. The trial court's decision was unanimously affirmed by the Indiana Court of Appeals. Thereafter, the Indiana Supreme Court unanimously denied the plaintiff's petition to review the case, effectively affirming the trial court's judgment.

Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained summary judgment for a unit owners association for a residential building near the Las Vegas Strip. The plaintiff alleged he sustained injuries after exposure to mold in the building. However, the plaintiff never responded to requests for admission regarding key elements of his claim. As a result, the requests were deemed admitted and the district court agreed with Michael and Jonathan's assertion that the plaintiff's responses were inadequate and failed to address the substance of the requests, and that summary judgment was proper. The plaintiff then appealed, arguing summary judgment was improper for a variety of reasons. Nevada's Court of Appeals rejected these arguments and affirmed summary judgment. It noted the plaintiff had not preserved many of his arguments and those that he had preserved did not support reversal.

Larry Lum (Partner-New York, NY), Aviva Stein (Partner-New York, NY), Ben Greenfield (Of Counsel-White Plains, NY) and Elie Herman (Associate-New York, NY | Stamford, CT) obtained a unanimous decision from the First Department Appellate Division, upholding the dismissal of a lawsuit against the firm’s major arena client. The underlying case involved a spectator sitting behind a plexiglass barrier who was hit and injured by a hockey puck at the arena. The court relied on case law established by the firm more than 20 years ago regarding the applicability of the limited duty rule and upholding shielding protections in place. This case, handled by Larry, was the first appellate-level review of the enhanced shielding measures adopted by the National Hockey League in 2002.

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) convinced the U.S. Court of Appeals for the Eleventh Circuit to reverse the judgment of the Southern District of Florida against our firm insurer client. The plaintiffs submitted a claim for $500,000 in accidental death benefits following the disappearance and presumed death of their father while mountain climbing in Pakistan. The district court concluded that because there was no evidence that the insured committed suicide, the denial of benefits was arbitrary and capricious under ERISA. In a published decision, the Eleventh Circuit reversed and remanded for entry of judgment in favor of our client. In doing so, the Eleventh Circuit adopted the Wickman test, which is used in seven other circuits for deciding whether a loss is an accident. Under this test, a court asks “whether a reasonable person, with background and characteristics similar to the insured, would have viewed [injury or death] as highly likely to occur as a result of the insured’s intentional conduct.” Here, the insured, a medical doctor, attempted to ascend a major peak solo after his climbing partner, a certified climbing instructor, concluded that it was too dangerous due to hidden crevasses and black ice that broke off and offered no grip. Based on these facts, the appellate court concluded that “[a] reasonable mountain climber likely would have expected a higher risk of injury or death from a summit attempt on an already dangerous winter climb.” The Eleventh Circuit rejected the claimants’ argument that the burden should shift to the insurer to prove there is no coverage when the actual cause of death is unknown. The appellate court also rejected the claimant’s argument that death while mountain climbing should be considered an accident because there is no mountain climbing exclusion in the policy. Accordingly, the Eleventh Circuit reversed the district court judgment and directed the district court to enter judgment in favor of our insurer client.