Understanding key principles of policy interpretation and following sound drafting practices can help you reduce ambiguity, minimize costly disputes, and ensure coverage is applied as intended—protecting both your organization and your insureds. Wilson Elser’s Words Matter! is a one-page reference guide developed by our Insurance Coverage Practice attorneys to avoid issues with insurance policy and application language.

Douglas Kemper (Of Counsel, Louisville, KY) successfully defended Wilson Elser’s parking and transportation management company client before the Kentucky Court of Appeals, which affirmed the Jefferson County Circuit Court’s dismissal of loss of parental consortium claims arising from the death of a pedestrian who was struck by a bus during the 2024 PGA Championship at Valhalla Golf Club in Louisville, Kentucky. The appeal centered on whether Kentucky law should recognize loss of parental consortium claims brought by the decedent's adult children. Despite plaintiffs' counsels’ efforts to expand existing Kentucky law, the appellate court adopted Wilson Elser’s primary argument, holding that any expansion of loss of consortium claims to adult children is a policy decision reserved exclusively for the Kentucky General Assembly under Section 241 of the Kentucky Constitution. In reaching its decision, the court distinguished between the development of spousal and parental loss of consortium claims under Kentucky jurisprudence. The court noted that spousal loss of consortium claims were created under common law as separate, stand-alone causes of action, whereas parental loss of consortium claims were created by statute as a specific element of a wrongful death claim. Because the governing statute limits those claims to minor children, the court concluded that any expansion to include adult children is a matter for the legislature, not the courts. As such, the appellate court affirmed the trial court’s dismissal of the adult children’s claim for loss of their father’s consortium. The decision affirms an important limitation on the scope of loss of consortium claims in Kentucky. It reinforces the constitutional boundaries between the judiciary's role in interpreting the law and the legislature's authority to expand statutory causes of action.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

On May 6, 2026, the New Jersey Supreme Court unanimously held in Murray v. Punina, 264 N.J. 1, 5 (2026) that future medical expense benefits that do not exceed a claimant's Personal Injury Protection (PIP) coverage limits are "collectible" for purposes of N.J.S.A. 39:6A-12 and, therefore, inadmissible in a plaintiff's personal injury trial against a tortfeasor. The rule applies equally to PIP benefits obtained through standard auto policies and through the Unsatisfied Claim and Judgment Fund (UCJF). Justice Fasciale wrote for the Court, affirming the Appellate Division. The facts of the Murray case are brief. Plaintiff Murray, injured as a passenger in a 2016 collision with an uninsured driver, received PIP benefits through NJPLIGA/UCJF entitling her to US$250,000 in PIP benefits. Her pre-trial medical expenses did not exhaust those limits. Over defendant Marrone's objection, the trial court admitted expert testimony projecting $42,000–$160,000 in future surgical expenses, and the jury awarded $100,000 in future medical damages. The Appellate Division reversed, holding the evidence inadmissible, and the Supreme Court affirmed. The Court's decision rested on five interlocking lines of reasoning. First, it observed that New Jersey's No-Fault Act was built on a deliberate trade-off: accident victims receive prompt, guaranteed medical expense compensation regardless of fault, in exchange for limits on their right to sue. N.J.S.A. 39:6A-12 exists specifically to enforce the other side of that bargain—by barring admission of evidence of losses "collectible" under PIP, it prevents plaintiffs from recovering the same medical costs twice (once from guaranteed PIP benefits and again from a tort verdict against the tortfeasor). The Court reasoned that permitting double recovery would undermine the entire cost-control logic of the no-fault system—if plaintiffs can collect the same expenses from both sources, the guaranteed-benefit-in-exchange-for-limited-tort-recovery bargain becomes one-sided. Second, the Court held that N.J.S.A. 39:6A-12 applies to UCJF claimants because the UCJF was created to place victims of uninsured drivers in the same position as standard-policy claimants—"equivalent to" and no better than a liability policy. The UCJF statute, N.J.S.A. 39:6-86.1, uses "personal injury protection" as a general term, and every No-Fault Act PIP amendment has been conformingly applied to UCJF benefits—confirming legislative intent that the two schemes operate identically. Reading N.J.S.A. 39:6A-12 to not apply to UCJF claimants would hand them a windfall double recovery unavailable to standard-policy holders, contradicting the fund's remedial purpose. Third, the Court carefully parsed the statutory terms. Under longstanding New Jersey case law, “collectible” means an amount a person has a present legal entitlement to receive—regardless of whether payment has been requested or delivered. Because PIP coverage creates an automatic legal right to payment for covered medical expenses up to the policy limit the moment those expenses are incurred, any future expense falling within remaining PIP capacity is already "collectible" as a matter of law. It is "unpaid" only in the sense that the treatment hasn't happened yet, but it is not "uncovered" or beyond the reach of PIP. The Court thus rejected Murray's conflation of "unpaid" with "not collectible," explaining that the two concepts are legally distinct. Fourth, the Court found that the legislative history confirmed the narrow scope of the 2019 amendment. In Haines v. Taft, 237 N.J. 271 (2019), the Court had barred evidence of medical expenses exceeding a plaintiff's lower PIP limits (e.g., $15,000)—leaving those plaintiffs with no source of recovery for excess costs. The legislature's fix, the 2019 amendment, was narrowly targeted: it permits recovery only of expenses that "exceed or are unpaid or uncovered by" PIP limits. The Court reflected that Governor Murphy's signing statement confirmed the amendment's purpose was to help "low-income drivers . . . [with] lesser PIP coverage options" recover costs that exceed their PIP ceilings—not to allow any plaintiff to recover costs the PIP system will eventually cover. The Court reasoned that if the legislature had intended to open the door to within-limits recovery, it would have said so explicitly—instead, the amendment's entire thrust reinforces the "collectible" reading. Finally, the Court identified a concrete policy danger if "unpaid" future expenses within PIP limits could be presented to a jury: plaintiffs would have a financial incentive to defer recommended medical treatment until after trial specifically to inflate their tort verdict—shifting costs the PIP carrier/fund was designed and funded to absorb onto individual defendants. The Court explicitly found this would constitute the precise "double-dipping" and cost-shifting the No-Fault Act was built to eliminate, rewarding gamesmanship over genuine need. This consequentialist reasoning served as an independent justification for the holding. Defense attorneys should, therefore, do three things in the wake of the Murray decision: (1) identify PIP coverage early; (2) serve targeted PIP exhaustion discovery; and (3) move in limine to exclude future medical expense evidence. To identify PIP coverage, counsel should determine plaintiff's PIP source, maximum limit, amounts paid, and remaining balance, as every dollar of remaining capacity is considered inadmissible damages. Serving targeted PIP exhaustion discovery is a must, counsel must demand the PIP declarations/UCJF coverage letter, payment ledger, and confirmation of remaining benefits. Finally, counsel should move in limine to exclude future medical expense evidence and cite Murray and N.J.S.A. 39:6A-12 with supporting coverage documentation to preserve the record for appeal. Murray v. Punina provides a bright-line rule grounded in five independent but reinforcing rationales. Defense counsel should incorporate it immediately into standard motion practice in every New Jersey auto personal injury case where PIP benefits remain available.

Peter Espey (Of Counsel-Madison, NJ) was quoted extensively in the article “Are Confidentiality Requests on the Rise in NJ? Attorneys Debate What’s at Stake,” appearing in the July 14, 2026, edition of Law.com’s New Jersey Law Journal. The article examines whether confidentiality provisions in settlement agreements are becoming more common in medical malpractice and other civil litigation. It features perspectives from both plaintiff and defense attorneys on the role of confidential settlements, their impact on transparency, and the factors that influence whether parties seek to keep settlement terms private. Peter notes that, in his experience, confidentiality provisions have long been a common part of settlements and that he has not observed a meaningful increase in their use. He also emphasizes that confidential settlements do not undermine public protection because malpractice settlements are reported to the National Practitioner Data Bank and may also be reviewed by state medical boards. "There are lots of defensible cases that can get settled for lots of different reasons," Peter said. "Just because a case settles, most of the agreements say there's no admission of liability ‒ and there's truth to that."

Nevada’s Supreme Court has overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it holds that a plaintiff represented on a contingency fee may recover the entire contingency fee if an offer of judgment is beaten. In Clark v. Marin, 142 Nev. Adv. Op. 47 (July 2, 2026), Marin sued Clark for injuries sustained in a motor vehicle accident. Marin served Clark a $2 million offer of judgment 24 days before trial. The jury’s verdict totaled $2,045,117.55. Offers of judgment under NRCP 68 are a powerful tool, allowing a plaintiff to serve an offer of judgment and recover post-offer attorneys’ fees if the plaintiff recovers more than was offered. The verdict here, plus prejudgment interest and taxable costs, produced a judgment that exceeded $2 million, so the plaintiff moved for attorneys’ fees. In Capriati, the Supreme Court affirmed a district court’s order awarding a personal injury plaintiff’s entire contingency fee because a “contingency fee does not vest until the client prevails.” As the client does not prevail until after the offer of judgment is served, the full contingency fee could be awarded. The district court applied Capriati and awarded “attorney’s fees in the full amount of Marin’s contingency fee agreement, totaling $818,047.02.” On appeal, Clark overruled Capriati. Clark reasoned a personal injury plaintiff incurs attorneys’ fees throughout the case but has no obligation to pay them unless there is a recovery. This is consistent with the fact that clients who discharge attorneys on contingency fee agreements are still obligated to pay for the services they receive. Moving forward, “while courts can consider the contingency fee amount in awarding attorney fees under NRCP 68, the award must be proportionate to and directly reflective of the work performed from the time of the offer.” The Court did not specify a specific method for doing so, but district courts “should determine a starting amount and make adjustments to account only for the work completed post-offer.” The Clark decision is a significant ruling for defendants. Nevada courts have consistently ruled that offers of judgment are not intended to force parties unfairly to forego legitimate claims. Excessive fee awards, “like those covering the entirety of a contingency fee agreement, risk such an effect. … NRCP 68 must hold offerees responsible for the value of the work required in continuing to litigate the case instead of settling, and no more.”

Joseph Baiocco (Partner-White Plains, NY) and Eian Weiner (Associate-White Plains, NY) secured a complete defense victory in a personal injury action in the New York Supreme Court, on behalf of Wilson Elser’s trucking company clients. The case arose from two consecutive motor vehicle accidents on Interstate 84. During the first collision, a co-defendant forced our clients' tractor-trailer off the roadway, leaving it disabled on the left shoulder and partially obstructing the left lane. Approximately fourteen minutes later, the plaintiff collided with the stationary tractor-trailer, allegedly sustaining severe and permanent injuries and asserting negligence claims against all defendants. Throughout the litigation, the plaintiff sought $1.25 million to settle the matter. Still, based on our evaluation of the liability and medical evidence, no settlement offer was extended on behalf of our clients.  Joe and Eian successfully moved for summary judgment, arguing that the plaintiff failed to meet New York's "serious injury" threshold under Insurance Law § 5102(d). Although the plaintiff relied on a surgical recommendation and expert medical proof in an effort to create an issue of fact, the court found Wilson Elser’s orthopedic independent medical exam established a prima facie entitlement to judgment by demonstrating a full range of motion, normal motor strength, and no functional deficits, and ruled that the plaintiff's expert affirmation was inadmissible under the amended requirements of CPLR 2106. The court further held that the plaintiff failed to raise a triable issue of fact due to unexplained treatment gaps and only minor range-of-motion limitations. Accordingly, the court granted our motion, dismissed the complaint in its entirety, granted the co-defendants' related serious injury cross-motion, and denied the remaining liability motion as moot. In the related action brought by the passenger in the plaintiff's vehicle, the White Plains team also successfully opposed the co-defendants' separate summary judgment motion seeking dismissal on proximate cause grounds by demonstrating triable issues of fact as to whether the initial collision created a continuing highway hazard and whether the subsequent collision was a foreseeable consequence of that condition. Although the court ultimately did not address the merits of that motion after dismissing this action on threshold grounds, it denied the co-defendants' liability motion. 

Mary Butler (Partner-Seattle, WA) has been appointed by the Governor of Washington to the Washington State Office of Administrative Hearings’ Tort Study Committee, effective June 1, 2026. The Tort Study Committee is charged with evaluating Washington's civil justice system for tort claims brought against the state and its officers, employees, and volunteers acting in their official capacities. The committee will develop recommendations to improve the state's processes, with an emphasis on efficiency, transparency, and accountability to its people. In notifying Mary of her appointment, the Governor recognized the committee's important role in examining the state's civil justice system. He noted that Mary's expertise and leadership would be instrumental in advancing its work. She indeed brings significant leadership experience to this role, currently serving on the Washington Defense Trial Lawyers Board of Directors, and having served as past president of the Puget Sound Marine Claims Association, among other positions. “Washington's civil justice system touches people, public agencies, and communities in moments that often matter deeply. I am honored to bring my experience representing local agencies and public employees, among others, to this important work, and I look forward to helping develop practical, balanced recommendations that promote fairness, strengthen public trust, and ensure the system works with integrity for all Washingtonians.”

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Douglas Kemper (Of Counsel, Louisville, KY) successfully defended Wilson Elser’s parking and transportation management company client before the Kentucky Court of Appeals, which affirmed the Jefferson County Circuit Court’s dismissal of loss of parental consortium claims arising from the death of a pedestrian who was struck by a bus during the 2024 PGA Championship at Valhalla Golf Club in Louisville, Kentucky. The appeal centered on whether Kentucky law should recognize loss of parental consortium claims brought by the decedent's adult children. Despite plaintiffs' counsels’ efforts to expand existing Kentucky law, the appellate court adopted Wilson Elser’s primary argument, holding that any expansion of loss of consortium claims to adult children is a policy decision reserved exclusively for the Kentucky General Assembly under Section 241 of the Kentucky Constitution. In reaching its decision, the court distinguished between the development of spousal and parental loss of consortium claims under Kentucky jurisprudence. The court noted that spousal loss of consortium claims were created under common law as separate, stand-alone causes of action, whereas parental loss of consortium claims were created by statute as a specific element of a wrongful death claim. Because the governing statute limits those claims to minor children, the court concluded that any expansion to include adult children is a matter for the legislature, not the courts. As such, the appellate court affirmed the trial court’s dismissal of the adult children’s claim for loss of their father’s consortium. The decision affirms an important limitation on the scope of loss of consortium claims in Kentucky. It reinforces the constitutional boundaries between the judiciary's role in interpreting the law and the legislature's authority to expand statutory causes of action.

Understanding key principles of policy interpretation and following sound drafting practices can help you reduce ambiguity, minimize costly disputes, and ensure coverage is applied as intended—protecting both your organization and your insureds. Wilson Elser’s Words Matter! is a one-page reference guide developed by our Insurance Coverage Practice attorneys to avoid issues with insurance policy and application language.

On May 6, 2026, the New Jersey Supreme Court unanimously held in Murray v. Punina, 264 N.J. 1, 5 (2026) that future medical expense benefits that do not exceed a claimant's Personal Injury Protection (PIP) coverage limits are "collectible" for purposes of N.J.S.A. 39:6A-12 and, therefore, inadmissible in a plaintiff's personal injury trial against a tortfeasor. The rule applies equally to PIP benefits obtained through standard auto policies and through the Unsatisfied Claim and Judgment Fund (UCJF). Justice Fasciale wrote for the Court, affirming the Appellate Division. The facts of the Murray case are brief. Plaintiff Murray, injured as a passenger in a 2016 collision with an uninsured driver, received PIP benefits through NJPLIGA/UCJF entitling her to US$250,000 in PIP benefits. Her pre-trial medical expenses did not exhaust those limits. Over defendant Marrone's objection, the trial court admitted expert testimony projecting $42,000–$160,000 in future surgical expenses, and the jury awarded $100,000 in future medical damages. The Appellate Division reversed, holding the evidence inadmissible, and the Supreme Court affirmed. The Court's decision rested on five interlocking lines of reasoning. First, it observed that New Jersey's No-Fault Act was built on a deliberate trade-off: accident victims receive prompt, guaranteed medical expense compensation regardless of fault, in exchange for limits on their right to sue. N.J.S.A. 39:6A-12 exists specifically to enforce the other side of that bargain—by barring admission of evidence of losses "collectible" under PIP, it prevents plaintiffs from recovering the same medical costs twice (once from guaranteed PIP benefits and again from a tort verdict against the tortfeasor). The Court reasoned that permitting double recovery would undermine the entire cost-control logic of the no-fault system—if plaintiffs can collect the same expenses from both sources, the guaranteed-benefit-in-exchange-for-limited-tort-recovery bargain becomes one-sided. Second, the Court held that N.J.S.A. 39:6A-12 applies to UCJF claimants because the UCJF was created to place victims of uninsured drivers in the same position as standard-policy claimants—"equivalent to" and no better than a liability policy. The UCJF statute, N.J.S.A. 39:6-86.1, uses "personal injury protection" as a general term, and every No-Fault Act PIP amendment has been conformingly applied to UCJF benefits—confirming legislative intent that the two schemes operate identically. Reading N.J.S.A. 39:6A-12 to not apply to UCJF claimants would hand them a windfall double recovery unavailable to standard-policy holders, contradicting the fund's remedial purpose. Third, the Court carefully parsed the statutory terms. Under longstanding New Jersey case law, “collectible” means an amount a person has a present legal entitlement to receive—regardless of whether payment has been requested or delivered. Because PIP coverage creates an automatic legal right to payment for covered medical expenses up to the policy limit the moment those expenses are incurred, any future expense falling within remaining PIP capacity is already "collectible" as a matter of law. It is "unpaid" only in the sense that the treatment hasn't happened yet, but it is not "uncovered" or beyond the reach of PIP. The Court thus rejected Murray's conflation of "unpaid" with "not collectible," explaining that the two concepts are legally distinct. Fourth, the Court found that the legislative history confirmed the narrow scope of the 2019 amendment. In Haines v. Taft, 237 N.J. 271 (2019), the Court had barred evidence of medical expenses exceeding a plaintiff's lower PIP limits (e.g., $15,000)—leaving those plaintiffs with no source of recovery for excess costs. The legislature's fix, the 2019 amendment, was narrowly targeted: it permits recovery only of expenses that "exceed or are unpaid or uncovered by" PIP limits. The Court reflected that Governor Murphy's signing statement confirmed the amendment's purpose was to help "low-income drivers . . . [with] lesser PIP coverage options" recover costs that exceed their PIP ceilings—not to allow any plaintiff to recover costs the PIP system will eventually cover. The Court reasoned that if the legislature had intended to open the door to within-limits recovery, it would have said so explicitly—instead, the amendment's entire thrust reinforces the "collectible" reading. Finally, the Court identified a concrete policy danger if "unpaid" future expenses within PIP limits could be presented to a jury: plaintiffs would have a financial incentive to defer recommended medical treatment until after trial specifically to inflate their tort verdict—shifting costs the PIP carrier/fund was designed and funded to absorb onto individual defendants. The Court explicitly found this would constitute the precise "double-dipping" and cost-shifting the No-Fault Act was built to eliminate, rewarding gamesmanship over genuine need. This consequentialist reasoning served as an independent justification for the holding. Defense attorneys should, therefore, do three things in the wake of the Murray decision: (1) identify PIP coverage early; (2) serve targeted PIP exhaustion discovery; and (3) move in limine to exclude future medical expense evidence. To identify PIP coverage, counsel should determine plaintiff's PIP source, maximum limit, amounts paid, and remaining balance, as every dollar of remaining capacity is considered inadmissible damages. Serving targeted PIP exhaustion discovery is a must, counsel must demand the PIP declarations/UCJF coverage letter, payment ledger, and confirmation of remaining benefits. Finally, counsel should move in limine to exclude future medical expense evidence and cite Murray and N.J.S.A. 39:6A-12 with supporting coverage documentation to preserve the record for appeal. Murray v. Punina provides a bright-line rule grounded in five independent but reinforcing rationales. Defense counsel should incorporate it immediately into standard motion practice in every New Jersey auto personal injury case where PIP benefits remain available.

Peter Espey (Of Counsel-Madison, NJ) was quoted extensively in the article “Are Confidentiality Requests on the Rise in NJ? Attorneys Debate What’s at Stake,” appearing in the July 14, 2026, edition of Law.com’s New Jersey Law Journal. The article examines whether confidentiality provisions in settlement agreements are becoming more common in medical malpractice and other civil litigation. It features perspectives from both plaintiff and defense attorneys on the role of confidential settlements, their impact on transparency, and the factors that influence whether parties seek to keep settlement terms private. Peter notes that, in his experience, confidentiality provisions have long been a common part of settlements and that he has not observed a meaningful increase in their use. He also emphasizes that confidential settlements do not undermine public protection because malpractice settlements are reported to the National Practitioner Data Bank and may also be reviewed by state medical boards. "There are lots of defensible cases that can get settled for lots of different reasons," Peter said. "Just because a case settles, most of the agreements say there's no admission of liability ‒ and there's truth to that."

Nevada’s Supreme Court has overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it holds that a plaintiff represented on a contingency fee may recover the entire contingency fee if an offer of judgment is beaten. In Clark v. Marin, 142 Nev. Adv. Op. 47 (July 2, 2026), Marin sued Clark for injuries sustained in a motor vehicle accident. Marin served Clark a $2 million offer of judgment 24 days before trial. The jury’s verdict totaled $2,045,117.55. Offers of judgment under NRCP 68 are a powerful tool, allowing a plaintiff to serve an offer of judgment and recover post-offer attorneys’ fees if the plaintiff recovers more than was offered. The verdict here, plus prejudgment interest and taxable costs, produced a judgment that exceeded $2 million, so the plaintiff moved for attorneys’ fees. In Capriati, the Supreme Court affirmed a district court’s order awarding a personal injury plaintiff’s entire contingency fee because a “contingency fee does not vest until the client prevails.” As the client does not prevail until after the offer of judgment is served, the full contingency fee could be awarded. The district court applied Capriati and awarded “attorney’s fees in the full amount of Marin’s contingency fee agreement, totaling $818,047.02.” On appeal, Clark overruled Capriati. Clark reasoned a personal injury plaintiff incurs attorneys’ fees throughout the case but has no obligation to pay them unless there is a recovery. This is consistent with the fact that clients who discharge attorneys on contingency fee agreements are still obligated to pay for the services they receive. Moving forward, “while courts can consider the contingency fee amount in awarding attorney fees under NRCP 68, the award must be proportionate to and directly reflective of the work performed from the time of the offer.” The Court did not specify a specific method for doing so, but district courts “should determine a starting amount and make adjustments to account only for the work completed post-offer.” The Clark decision is a significant ruling for defendants. Nevada courts have consistently ruled that offers of judgment are not intended to force parties unfairly to forego legitimate claims. Excessive fee awards, “like those covering the entirety of a contingency fee agreement, risk such an effect. … NRCP 68 must hold offerees responsible for the value of the work required in continuing to litigate the case instead of settling, and no more.”

Joseph Baiocco (Partner-White Plains, NY) and Eian Weiner (Associate-White Plains, NY) secured a complete defense victory in a personal injury action in the New York Supreme Court, on behalf of Wilson Elser’s trucking company clients. The case arose from two consecutive motor vehicle accidents on Interstate 84. During the first collision, a co-defendant forced our clients' tractor-trailer off the roadway, leaving it disabled on the left shoulder and partially obstructing the left lane. Approximately fourteen minutes later, the plaintiff collided with the stationary tractor-trailer, allegedly sustaining severe and permanent injuries and asserting negligence claims against all defendants. Throughout the litigation, the plaintiff sought $1.25 million to settle the matter. Still, based on our evaluation of the liability and medical evidence, no settlement offer was extended on behalf of our clients.  Joe and Eian successfully moved for summary judgment, arguing that the plaintiff failed to meet New York's "serious injury" threshold under Insurance Law § 5102(d). Although the plaintiff relied on a surgical recommendation and expert medical proof in an effort to create an issue of fact, the court found Wilson Elser’s orthopedic independent medical exam established a prima facie entitlement to judgment by demonstrating a full range of motion, normal motor strength, and no functional deficits, and ruled that the plaintiff's expert affirmation was inadmissible under the amended requirements of CPLR 2106. The court further held that the plaintiff failed to raise a triable issue of fact due to unexplained treatment gaps and only minor range-of-motion limitations. Accordingly, the court granted our motion, dismissed the complaint in its entirety, granted the co-defendants' related serious injury cross-motion, and denied the remaining liability motion as moot. In the related action brought by the passenger in the plaintiff's vehicle, the White Plains team also successfully opposed the co-defendants' separate summary judgment motion seeking dismissal on proximate cause grounds by demonstrating triable issues of fact as to whether the initial collision created a continuing highway hazard and whether the subsequent collision was a foreseeable consequence of that condition. Although the court ultimately did not address the merits of that motion after dismissing this action on threshold grounds, it denied the co-defendants' liability motion. 

Mary Butler (Partner-Seattle, WA) has been appointed by the Governor of Washington to the Washington State Office of Administrative Hearings’ Tort Study Committee, effective June 1, 2026. The Tort Study Committee is charged with evaluating Washington's civil justice system for tort claims brought against the state and its officers, employees, and volunteers acting in their official capacities. The committee will develop recommendations to improve the state's processes, with an emphasis on efficiency, transparency, and accountability to its people. In notifying Mary of her appointment, the Governor recognized the committee's important role in examining the state's civil justice system. He noted that Mary's expertise and leadership would be instrumental in advancing its work. She indeed brings significant leadership experience to this role, currently serving on the Washington Defense Trial Lawyers Board of Directors, and having served as past president of the Puget Sound Marine Claims Association, among other positions. “Washington's civil justice system touches people, public agencies, and communities in moments that often matter deeply. I am honored to bring my experience representing local agencies and public employees, among others, to this important work, and I look forward to helping develop practical, balanced recommendations that promote fairness, strengthen public trust, and ensure the system works with integrity for all Washingtonians.”

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Douglas Kemper (Of Counsel, Louisville, KY) successfully defended Wilson Elser’s parking and transportation management company client before the Kentucky Court of Appeals, which affirmed the Jefferson County Circuit Court’s dismissal of loss of parental consortium claims arising from the death of a pedestrian who was struck by a bus during the 2024 PGA Championship at Valhalla Golf Club in Louisville, Kentucky. The appeal centered on whether Kentucky law should recognize loss of parental consortium claims brought by the decedent's adult children. Despite plaintiffs' counsels’ efforts to expand existing Kentucky law, the appellate court adopted Wilson Elser’s primary argument, holding that any expansion of loss of consortium claims to adult children is a policy decision reserved exclusively for the Kentucky General Assembly under Section 241 of the Kentucky Constitution. In reaching its decision, the court distinguished between the development of spousal and parental loss of consortium claims under Kentucky jurisprudence. The court noted that spousal loss of consortium claims were created under common law as separate, stand-alone causes of action, whereas parental loss of consortium claims were created by statute as a specific element of a wrongful death claim. Because the governing statute limits those claims to minor children, the court concluded that any expansion to include adult children is a matter for the legislature, not the courts. As such, the appellate court affirmed the trial court’s dismissal of the adult children’s claim for loss of their father’s consortium. The decision affirms an important limitation on the scope of loss of consortium claims in Kentucky. It reinforces the constitutional boundaries between the judiciary's role in interpreting the law and the legislature's authority to expand statutory causes of action.

Understanding key principles of policy interpretation and following sound drafting practices can help you reduce ambiguity, minimize costly disputes, and ensure coverage is applied as intended—protecting both your organization and your insureds. Wilson Elser’s Words Matter! is a one-page reference guide developed by our Insurance Coverage Practice attorneys to avoid issues with insurance policy and application language.

On May 6, 2026, the New Jersey Supreme Court unanimously held in Murray v. Punina, 264 N.J. 1, 5 (2026) that future medical expense benefits that do not exceed a claimant's Personal Injury Protection (PIP) coverage limits are "collectible" for purposes of N.J.S.A. 39:6A-12 and, therefore, inadmissible in a plaintiff's personal injury trial against a tortfeasor. The rule applies equally to PIP benefits obtained through standard auto policies and through the Unsatisfied Claim and Judgment Fund (UCJF). Justice Fasciale wrote for the Court, affirming the Appellate Division. The facts of the Murray case are brief. Plaintiff Murray, injured as a passenger in a 2016 collision with an uninsured driver, received PIP benefits through NJPLIGA/UCJF entitling her to US$250,000 in PIP benefits. Her pre-trial medical expenses did not exhaust those limits. Over defendant Marrone's objection, the trial court admitted expert testimony projecting $42,000–$160,000 in future surgical expenses, and the jury awarded $100,000 in future medical damages. The Appellate Division reversed, holding the evidence inadmissible, and the Supreme Court affirmed. The Court's decision rested on five interlocking lines of reasoning. First, it observed that New Jersey's No-Fault Act was built on a deliberate trade-off: accident victims receive prompt, guaranteed medical expense compensation regardless of fault, in exchange for limits on their right to sue. N.J.S.A. 39:6A-12 exists specifically to enforce the other side of that bargain—by barring admission of evidence of losses "collectible" under PIP, it prevents plaintiffs from recovering the same medical costs twice (once from guaranteed PIP benefits and again from a tort verdict against the tortfeasor). The Court reasoned that permitting double recovery would undermine the entire cost-control logic of the no-fault system—if plaintiffs can collect the same expenses from both sources, the guaranteed-benefit-in-exchange-for-limited-tort-recovery bargain becomes one-sided. Second, the Court held that N.J.S.A. 39:6A-12 applies to UCJF claimants because the UCJF was created to place victims of uninsured drivers in the same position as standard-policy claimants—"equivalent to" and no better than a liability policy. The UCJF statute, N.J.S.A. 39:6-86.1, uses "personal injury protection" as a general term, and every No-Fault Act PIP amendment has been conformingly applied to UCJF benefits—confirming legislative intent that the two schemes operate identically. Reading N.J.S.A. 39:6A-12 to not apply to UCJF claimants would hand them a windfall double recovery unavailable to standard-policy holders, contradicting the fund's remedial purpose. Third, the Court carefully parsed the statutory terms. Under longstanding New Jersey case law, “collectible” means an amount a person has a present legal entitlement to receive—regardless of whether payment has been requested or delivered. Because PIP coverage creates an automatic legal right to payment for covered medical expenses up to the policy limit the moment those expenses are incurred, any future expense falling within remaining PIP capacity is already "collectible" as a matter of law. It is "unpaid" only in the sense that the treatment hasn't happened yet, but it is not "uncovered" or beyond the reach of PIP. The Court thus rejected Murray's conflation of "unpaid" with "not collectible," explaining that the two concepts are legally distinct. Fourth, the Court found that the legislative history confirmed the narrow scope of the 2019 amendment. In Haines v. Taft, 237 N.J. 271 (2019), the Court had barred evidence of medical expenses exceeding a plaintiff's lower PIP limits (e.g., $15,000)—leaving those plaintiffs with no source of recovery for excess costs. The legislature's fix, the 2019 amendment, was narrowly targeted: it permits recovery only of expenses that "exceed or are unpaid or uncovered by" PIP limits. The Court reflected that Governor Murphy's signing statement confirmed the amendment's purpose was to help "low-income drivers . . . [with] lesser PIP coverage options" recover costs that exceed their PIP ceilings—not to allow any plaintiff to recover costs the PIP system will eventually cover. The Court reasoned that if the legislature had intended to open the door to within-limits recovery, it would have said so explicitly—instead, the amendment's entire thrust reinforces the "collectible" reading. Finally, the Court identified a concrete policy danger if "unpaid" future expenses within PIP limits could be presented to a jury: plaintiffs would have a financial incentive to defer recommended medical treatment until after trial specifically to inflate their tort verdict—shifting costs the PIP carrier/fund was designed and funded to absorb onto individual defendants. The Court explicitly found this would constitute the precise "double-dipping" and cost-shifting the No-Fault Act was built to eliminate, rewarding gamesmanship over genuine need. This consequentialist reasoning served as an independent justification for the holding. Defense attorneys should, therefore, do three things in the wake of the Murray decision: (1) identify PIP coverage early; (2) serve targeted PIP exhaustion discovery; and (3) move in limine to exclude future medical expense evidence. To identify PIP coverage, counsel should determine plaintiff's PIP source, maximum limit, amounts paid, and remaining balance, as every dollar of remaining capacity is considered inadmissible damages. Serving targeted PIP exhaustion discovery is a must, counsel must demand the PIP declarations/UCJF coverage letter, payment ledger, and confirmation of remaining benefits. Finally, counsel should move in limine to exclude future medical expense evidence and cite Murray and N.J.S.A. 39:6A-12 with supporting coverage documentation to preserve the record for appeal. Murray v. Punina provides a bright-line rule grounded in five independent but reinforcing rationales. Defense counsel should incorporate it immediately into standard motion practice in every New Jersey auto personal injury case where PIP benefits remain available.

Peter Espey (Of Counsel-Madison, NJ) was quoted extensively in the article “Are Confidentiality Requests on the Rise in NJ? Attorneys Debate What’s at Stake,” appearing in the July 14, 2026, edition of Law.com’s New Jersey Law Journal. The article examines whether confidentiality provisions in settlement agreements are becoming more common in medical malpractice and other civil litigation. It features perspectives from both plaintiff and defense attorneys on the role of confidential settlements, their impact on transparency, and the factors that influence whether parties seek to keep settlement terms private. Peter notes that, in his experience, confidentiality provisions have long been a common part of settlements and that he has not observed a meaningful increase in their use. He also emphasizes that confidential settlements do not undermine public protection because malpractice settlements are reported to the National Practitioner Data Bank and may also be reviewed by state medical boards. "There are lots of defensible cases that can get settled for lots of different reasons," Peter said. "Just because a case settles, most of the agreements say there's no admission of liability ‒ and there's truth to that."

Nevada’s Supreme Court has overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it holds that a plaintiff represented on a contingency fee may recover the entire contingency fee if an offer of judgment is beaten. In Clark v. Marin, 142 Nev. Adv. Op. 47 (July 2, 2026), Marin sued Clark for injuries sustained in a motor vehicle accident. Marin served Clark a $2 million offer of judgment 24 days before trial. The jury’s verdict totaled $2,045,117.55. Offers of judgment under NRCP 68 are a powerful tool, allowing a plaintiff to serve an offer of judgment and recover post-offer attorneys’ fees if the plaintiff recovers more than was offered. The verdict here, plus prejudgment interest and taxable costs, produced a judgment that exceeded $2 million, so the plaintiff moved for attorneys’ fees. In Capriati, the Supreme Court affirmed a district court’s order awarding a personal injury plaintiff’s entire contingency fee because a “contingency fee does not vest until the client prevails.” As the client does not prevail until after the offer of judgment is served, the full contingency fee could be awarded. The district court applied Capriati and awarded “attorney’s fees in the full amount of Marin’s contingency fee agreement, totaling $818,047.02.” On appeal, Clark overruled Capriati. Clark reasoned a personal injury plaintiff incurs attorneys’ fees throughout the case but has no obligation to pay them unless there is a recovery. This is consistent with the fact that clients who discharge attorneys on contingency fee agreements are still obligated to pay for the services they receive. Moving forward, “while courts can consider the contingency fee amount in awarding attorney fees under NRCP 68, the award must be proportionate to and directly reflective of the work performed from the time of the offer.” The Court did not specify a specific method for doing so, but district courts “should determine a starting amount and make adjustments to account only for the work completed post-offer.” The Clark decision is a significant ruling for defendants. Nevada courts have consistently ruled that offers of judgment are not intended to force parties unfairly to forego legitimate claims. Excessive fee awards, “like those covering the entirety of a contingency fee agreement, risk such an effect. … NRCP 68 must hold offerees responsible for the value of the work required in continuing to litigate the case instead of settling, and no more.”