Brian Del Gatto

Taylor Allin (Partner-Phoenix, AZ), Brian Del Gatto (Partner-Phoenix, AZ), and Brian Page (Associate-Phoenix, AZ) secured dismissal in the Arizona Federal District Court on behalf of Wilson Elser’s client, an independent contractor tour guide. The client was working in his independent contractor capacity for a tour company, during which time the company offered an optional flight operated by a separate, unaffiliated entity. Several passengers chose to take the flight, which tragically crashed, resulting in two fatalities and injuries to other passengers. The plaintiffs all brought suit against the tour company, the flight operator, and the tour guide. Wilson Elser filed a motion to dismiss the claims against the client on the basis that he owed no duty in connection with the flight. The court agreed and granted the motion, dismissing the case with prejudice and without leave to amend, resulting in major savings in legal fees for the client and avoiding involvement in a case allegedly worth multiple millions of dollars.

Beata Shapiro (Partner-Boston, MA), Brian Del Gatto (Partner-Phoenix, AZ), and Anne Kim (Associate-Boston, MA) defended a major national commercial tenant in a trip-and-fall case in the Suffolk County Superior Court in Boston. The plaintiff alleged that she fell on a sloped surface in the parking lot of the property after attending a ticketed event hosted by the firm’s client, and asserted claims of negligence and failure to warn. The firm’s client was added as a party to the case after discovery was conducted of the plaintiff and the co-defendants, the property owner, and the general contractor that installed the slope as part of an ongoing construction project at the site. Beata, Brian, and Anne moved for summary judgment as to all claims, before incurring the costs of answering the complaint or participating in discovery, on the grounds that the firm’s client did not have control over the parking lot under the terms of the lease and had no notice of the presence of the slope. Summary judgment was granted as to all claims against the firm’s client, over opposition, and the plaintiff has not appealed within the time permitted. This proactive approach saved the clients time and litigation expense and the possibility of a large damage award. 

Brian Del Gatto (Partner-Phoenix, AZ), William Cook (Partner-Detroit, MI), and Katherine Beres (Of-Counsel-Detroit, MI) prevailed on behalf of a Canadian international logistics company in Monroe County Circuit Court, Monroe, Michigan. The plaintiff alleged that when the vehicle she was a passenger in stopped in the dark in the middle of an unlit interstate highway at night and was rear-ended by a semi-truck driven by our client's driver, the driver was at fault. However, the truck’s dash camera video of the accident clearly demonstrated that the vehicle that plaintiff occupied was not visible until one second prior to the accident thereby creating a sudden and unavoidable collision. When the plaintiff refused to negotiate in good faith, Brian, Bill, and Kate filed a dispositive motion explaining how the evidence demonstrated that the driver was not negligent. The circuit court agreed and dismissed the case.

Brian Del Gatto (Partner-Phoenix, AZ) and a Madison, New Jersey, team comprising partner Andrew Heck, of counsel Elyse Tormey, and associate Mellis Bakir, defended a wrongful death case in which the bus driver closed the front door on the decedent’s arm and drove away, causing the decedent to fall and be run over. He died several days later in the hospital, allegedly as a result of his injuries. The plaintiff sued our Canadian client, the largest municipal bus manufacturer in North America and the successor in interest to the legacy manufacturer of the bus, claiming product liability based on the allegation that the accident was a result of the door's defective design. After setting the tone early with extensive pre-answer motion practice, extensive discovery followed. Brian and the team moved for summary judgment after the discovery deadline lapsed, prior to the setting of any trial date, based on a number of grounds, including that expert testimony was necessary but lacking, and that expert opinion, even if it had been provided, would fatally lack sufficient factual support. The team strategically filed a summary judgment motion prior to its due date, so that it would be pending at the time another hearing would be conducted, at which they suspected efforts may be made to blow out discovery deadlines. When that suspicion proved accurate, the team leveraged the prejudice that would arise from extending discovery after we showed our hand in filing our motion into a prohibition on new discovery being admissible with respect to the client. Lacking the ability to use new discovery to right the ship and faced with an unassailable motion, all adversaries permitted that motion to proceed unopposed, and summary judgment was entered on the client's behalf. This aggressive strategy saved the client – which had a high self-insured exposure – significant defense costs for trial, as well as the always possible, albeit remote, adverse shock verdict.

Danielle T. Gauer (Of Counsel-Miami, FL), Maria Papasakelariou (Associate-Miami, FL) and Brian Del Gatto (Partner-Phoenix, AZ) secured a voluntary dismissal on behalf of a Canadian insurance carrier doing business out of Nova Scotia, Canada. The plaintiff, a resident of Nova Scotia and the insured, sought uninsured and underinsured motorist coverage related to an accident that occurred in Florida against a policy with $1+ million in potential benefits. The team filed a motion to quash service of process and a motion to dismiss for lack of personal jurisdiction and forum non conveniens, arguing that the plaintiff inappropriately served the insurance company by attempting to serve a completely unrelated U.S. entity. The application of the law of Nova Scotia by a court located in the province, coupled with the fact that all potential witnesses are Canadian and the evidence is located in the province, makes Nova Scotia the more appropriate forum for this dispute. The team proved that the Canadian company was in fact completely separate from the U.S. insurer of a similar name. The plaintiff’s response to our motion tried to make the argument that the affidavit of the insurance adjuster was not legally sufficient under the law as the adjuster did not have personal knowledge of the matter. Furthermore, the plaintiff argued that Canada is not an adequate alternative forum because the insurance carrier should step into the shoes of the owner of the uninsured or underinsured vehicle. However, the cases cited by the plaintiff failed to involve a non-U.S. or foreign insurance carrier. Finally, on the eve before the hearing, the plaintiff’s counsel filed a notice dismissing our client. This continues our string of success in protecting our Canadian clients from being hauled into courts like Florida without proper grounds. 

Brian Del Gatto (Partner-Phoenix) and Arman Nafisi (Partner-Phoenix) prevailed on a motion for summary judgment in the Iowa District Court, Polk County, on behalf of an international semi-truck equipment dealer. In this clear-fault case, plaintiff was rear-ended by a semi-truck tractor and filed a lawsuit alleging negligence on the part of the driver. The plaintiff brought vicarious liability claims alleging high six-figure damages against our client, the lessor of the semi-truck, as well as the driver’s employer, who leased the truck from our client. Brian and Arman took over defense of the litigation in the middle of discovery, from prior defense counsel. At the conclusion of discovery, Brian and Arman filed a motion for summary judgment arguing that the plaintiff's claim against the client is precluded by the Graves Amendment, a federal tort reform statute limiting the liability of vehicle rental and leasing companies and barring vicarious liability claims in motor vehicle accidents. Following briefing and oral argument, the Court granted summary judgment and dismissed the case with prejudice against our client. The case was set to go to trial later this year and saved the client significant legal cost and risk exposure.

Brian Del Gatto (Partner-Phoenix, AZ), William Cook (Partner-Detroit, MI) and Katherine Beres (Associate-Detroit, MI) obtained summary judgment in the U.S. District Court, Eastern District of Michigan, on behalf of Wilson Elser's client, an international  Canadian logistics company. The plaintiff alleges that when his vehicle collided with a semi-truck driven by our client's driver, the driver was at fault. However, the dash camera video of the accident clearly shows the driver remained in his lane on the expressway and that the plaintiff lost control of his vehicle, causing the collision. When the plaintiff's counsel refused to voluntarily dismiss the lawsuit, Brian, Bill and Kate filed a dispositive motion explaining how the video demonstrated that the plaintiff caused the accident, not our client's driver. The federal judge in a strong decision found that the collision was 100 percent the fault of the plaintiff and that no reasonable juror would conclude otherwise. The court therefore dismissed the case.  This decision saved the client insurer significant legal fees and exposure to serious injuries as well as a large settlement demand. This decision supports that the use of dash cams in the commercial trucking setting has a positive return on investment. 

Stu Miller (Partner-New York, NY) and Phoenix, Arizona, partners Brian Del Gatto and Arman Nafisi secured a voluntary dismissal of a global logistics company client from a suit in Arizona. The plaintiff sustained significant property damage loss after a driver, operating a vehicle owned by our client, negligently collided with the plaintiff's vehicle. The driver, however, was working for a different company our client had contracted with at the time of the accident. Arman and Brian, through early, proactive fact-gathering and investigation efforts in coordination with the client, discovered these facts and obtained the subject contract early enough in the case to persuade the plaintiff to amend its Complaint and dismiss our client from the case.

John Loringer (Partner-Milwaukee, WI), Melissa Murphy-Petros (Of Counsel-Chicago, IL) and Brian Del Gatto (Partner-Phoenix, AZ) successfully defended the dismissal of a Canadian manufacturer of farm equipment before the Minnesota Court of Appeals. The plaintiff, a Minnesota dairy farmer, alleged that our client's product was the cause of a decrease in milk production over numerous years. The settlement demand throughout discovery was in excess of $3 million for the loss of production and untimely death of some of the cows. After having the case dismissed at the trial court by demonstrating the lack of foundational reliability with the plaintiff's expert witness theories regarding causation, the plaintiff appealed and the appellate court issued an order affirming dismissal by the trial court and securing a complete victory for the client. The result here solidifies appropriate rules of disclosure for expert opinions.

Phoenix, Arizona, partners Taylor Allin and Brian Del Gatto and associate Blake Bracht obtained dismissal of a defamation case against our client, a liquidator in a UK bankruptcy who was appointed to oversee liquidation of the plaintiffs’ assets. Plaintiffs alleged our client made numerous harassing, threatening phone calls and sent text messages to them and their U.S. business partners, forcing the failure of multimillion-dollar business deals. Taylor, Brian and Blake argued the allegations were false and being used to leverage a better settlement of the bankruptcy debts in the United Kingdom. They lost a Motion to Dismiss on jurisdiction early, and after completing discovery and establishing no communications from the United States to the UK could be proven by evidence, the U.S. District Court, District of Arizona ordered an evidentiary hearing on the jurisdiction issue. The plaintiffs made false statements to the court about why they could not attend the evidentiary hearing and had it postponed multiple times. The Wilson Elser team filed a motion for sanctions once evidence of plaintiffs' false representations to the court were definitively established. The court agreed, noting plaintiffs were purposely avoiding attending the evidentiary hearing and unreasonably delaying a judicial decision. Wilson Elser successfully argued that the case should be dismissed with prejudice as lesser sanctions would be inappropriate. 

Beata Shapiro (Partner-Boston, MA), Anne Kim (Associate-Boston, MA) and Brian Del Gatto (Partner-Phoenix, AZ) obtained dismissal of a suit claiming more than $3 million in damages for theft of a shipment of cell phones in the U.S. District Court, Southern District of Florida based on federal preemption of state law claims under the Federal Aviation Administration Authorization Act (FAAAA), and on the plaintiff's failure to sufficiently plead a breach of contract claim. The decision is particularly significant in that it expands case law on FAAAA preemption to apply to claims against non-brokers and non–motor carriers to any party that is involved in the arrangement for transportation of cargo, such as shippers. Our client had a contract with the shipper to provide warehousing services and occasionally arrange for outbound transportation of its customer’s goods. Our client hired a freight broker to arrange the shipment with a motor carrier, and the broker hired a motor carrier to transport it. That motor carrier hired another motor carrier. The shipment was stolen while in the possession of the second motor carrier. On motion, Beata, Anne and Brian argued that the FAAAA's explicit preemption applies to the negligence claim against our client, even though our client was not a broker or a motor carrier, because such claims would seek to indirectly regulate the prices, routes and services of brokers and motor carriers. The court granted the motion, finding that the negligence claim by the plaintiff seeks to indirectly regulate the prices, routes and services of motor carriers and brokers, and is therefore preempted under FAAAA. In dismissing the breach of contract claim as well, the court determined that the plaintiff cannot merely argue that just because the cargo was stolen, our client must have breached the contract. The court further held that the dismissal was with prejudice and that the plaintiff could not seek to amend the complaint.

Patrick Lawless (Partner-New York, NY), Brian Del Gatto (Partner-NY/CT/AZ/WA), Douglas Connors (Partner-Stamford, CT) and Andrea Strain (Of Counsel-Stamford, CT) teamed to defeat an appeal before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department to recover damages for personal injuries from an order of the Supreme Court, Queens County in an alleged slip-and-fall incident. The plaintiff offered contradictory statements, first in the emergency room stating that he was talking on his cell phone at the time of the accident, and later at his deposition, denying he was talking on his cell phone when the accident occurred. In defense of our major Canadian aerospace client and our nationally represented insurer, the team moved, inter alia, to compel the production of the plaintiff’s cell phone records, and the Supreme Court directed the plaintiff to produce the records within 30 days, resulting in this from the Court: “Here, the willful and contumacious character of the plaintiff’s conduct can be inferred from his repeated failure to respond to the defendants’ demands for discovery of his cell phone records, his failure to meaningfully and timely comply with the Supreme Court’s order directing such disclosure, and his failure to provide any reasonable excuse for these failures … Even after the conditional order of dismissal was issued, which again directed the plaintiff to produce his cell phone records, the plaintiff still did not comply with the court’s directive. Accordingly, the court properly, in effect, upon re-argument, adhered to its prior determination conditionally granting that branch of the defendants’ motion, which was pursuant to CPLR 3126(3) to dismiss the complaint.”

With a consistent settlement demand of $10 million or more throughout the case, the clients were delighted with the outcome.
 

Brian Del Gatto (Partner-Phoenix), Colt Dodrill (Of Counsel-Phoenix) and Jenna Vance (Associate-Phoenix) obtained summary judgment in Maricopa County Superior Court for Wilson Elser’s clients, a peer-to-peer car sharing program and a shared vehicle’s owner. The plaintiff sought damages from our clients under the theory of negligent entrustment. Colt and Jenna established that of the co-defendants mother and daughter, only the mother was authorized to operate the shared vehicle, whereas her daughter who was operating it at the time of the accident, was not authorized to do so. The plaintiff argued that the mother’s prior return of a shared vehicle with a “weed smell” imposed on our clients a duty to remove her from client’s program and the breach of that duty caused the accident. Colt and Jenna successfully argued no causal link existed between the mother’s purported marijuana use and the daughter’s accident. Finding no duty of care owed to the plaintiff, the court entered summary judgment in favor of the peer-to-peer car-sharing program. Finding no proximate cause, the court entered summary judgment in favor of the shared vehicle’s owner.