​Michael Stoberski (Partner-Las Vegas, NV) and Tania Bonilla (Associate-Las Vegas, NV) obtained a defense verdict in the Eighth Judicial District Court, Clark County, Nevada, on behalf of Wilson Elser’s major banking client. The plaintiff, an online product seller, alleged the bank wrongfully interfered with its business by contacting an online vendor in an attempt to secure the bank’s collateral. The plaintiff, an affiliate of the bank’s borrowers, alleged that it properly purchased the rights to purchase and sell inventory from the bank’s borrowers.

Mike and Tania argued that the bank was authorized to contact any vendor holding the bank’s collateral to advise of the bank’s UCC rights, and that the bank was not negligent in seeking the return of monies from the sale of the bank’s collateral.

The plaintiff alleged that this enforcement of the bank’s UCC rights interfered with the plaintiff’s online business, caused the online vendor to freeze the plaintiff’s accounts, and eventually caused the demise of the plaintiff’s business. In support of its damages claim, the plaintiff retained a preeminent Nevada economist to opine that the bank's contact with the vendor and the subsequent freezing of the plaintiff's accounts resulted in millions of dollars in alleged damages. Plaintiff’s counsel asked the jury to award $27 million in damages.

After presentation of the evidence, Tania argued for judgment as a matter of law as to the plaintiff’s claims. She successfully convinced the court to dismiss the intentional interference claim, with the remaining negligence claim to be submitted to the jury.

After a weeklong trial, the jury deliberated for less than three hours before returning a unanimous defense verdict, finding that Wilson Elser's client acted appropriately and did not cause any damage to the plaintiff. Notably, Mike assumed responsibility for the case approximately 90 days prior to trial.

Colt Dodrill (Partner-Phoenix, AZ) and Jeffrey Ashbeck (Associate-Las Vegas, NV) secured a car share lawsuit dismissal from the Eighth Judicial District Court, Clark County, Nevada, on behalf of Wilson Elser’s clients, a car-sharing platform and the vehicle owner. The plaintiff sued our clients for injuries sustained in an automobile accident. The clients had reserved the car share for a specific driver, but the plaintiff alleged a different driver was behind the wheel at the time of the accident. Colt and Jeff moved to dismiss, arguing that negligent entrustment does not recognize successive entrustments to strangers not named on the reservation. The court agreed that the law does not skip a generation, kicking the claim to the curb. The plaintiff tried to circumvent the rule against vicarious liability by alleging a failure to provide statutorily mandated insurance. However, Colt and Jeff held firm and convinced the plaintiff not proceed with further briefing after proving that the prescribed policies had been properly provided. 

Chris Richardson (Partner-Las Vegas, NV) secured summary judgment in the Eighth Judicial District Court, Las Vegas, on behalf of Wilson Elser’s insurance broker client. The plaintiff, a security guard firm with armed and unarmed personnel, hired our client and its agent in August 2021 to obtain general liability and premises liability insurance in connection with the plaintiff's licensure with the State of Nevada Private Investigators Licensing Board. Prior to obtaining the policy, our client sent the plaintiff an email notifying him of the receipt of a proposal for General Liability coverage from an insurance carrier and providing information regarding the premium amount and coverage limits. The policy was bound and then renewed for the following year. Each policy contained an Assault and Battery Exclusion under endorsement which provided: "This insurance does not apply to any claim or 'suit' for 'bodily injury,' 'property damage' or 'personal and advertising injury' arising out of, related to, or, in any way involving any actual or alleged assault, battery, harmful or offensive contact, or threat, whether provoked or unprovoked." This exclusion was expressly listed in the quote documents and the issued policy’s schedule of forms, ensuring the insured had notice of the exclusion. The assault and battery exclusion was also discussed during the policy placement process, during the 2022 renewal, and in email communications.

Following the second renewal, the plaintiff’s security guard shot a third party. The victim sued the plaintiff, but the plaintiff’s insurer disclaimed coverage for the lawsuit based on the policy’s assault and battery exclusion. The plaintiff ultimately entered a stipulated judgment with the victim in the amount of $500,000.
 
The plaintiff subsequently filed suit against our client, asserting: (1) breach of contract; (2) deceptive trade practices under NRS 598.0923; (3) breach of the covenant of good faith and fair dealing; (4) fraudulent misrepresentation; and (5) negligence. All claims were premised on the allegation that our client failed to disclose the policy’s assault and battery exclusion before binding coverage. Chris moved for summary judgment, arguing that the undisputed documentary evidence established plaintiff’s actual or constructive notice of the exclusion as a matter of law. Specifically, the evidence showed that the plaintiff received the policy containing the clearly stated exclusion; the exclusion was expressly identified in the quote documents and policy schedule of forms; Nevada law imposes a duty on insureds to understand their policy terms; and the plaintiff acknowledged and accepted those terms, including during the 2022 renewal process when the exclusion was again prominently disclosed. Based on these undisputed facts, the court granted summary judgment in our client's favor on all claims.

Sheri Thome (Partner-Las Vegas) and Shawn Mangano (Of Counsel-Las Vegas) represented a lawyer who was sued for malpractice for failing to prepare adequate damages disclosures before withdrawing from a commercial case for non-payment. Substitute counsel undertook representation and provided supplemental damage disclosures the day before the close of discovery. The disclosures were inadequate, and were made more than eight months after our client had withdrawn.  The court eventually granted a motion in limine that included a finding that new counsel had willfully violated disclosure obligations, thereby justifying claim-terminating sanctions. Subsequently, the former client filed separate lawsuits against both firms. Our client moved for summary judgment on causation, arguing that substitute counsel – and not our client – was responsible for any damages incurred by the plaintiff by virtue of the court ruling on the motion in limine. At oral argument, the Court granted summary judgment in our client's favor.

Michael Lowry (Partner-Las Vegas) succeeded on a motion to compel arbitration in the Eighth Judicial District Court, Clark County, Nevada, for Wilson Elser’s client, a regional gym. The plaintiff, a gym member, alleged she was injured after tripping and falling while approaching a row of exercise equipment. She filed suit asserting that her fall resulted from the gym's negligence. However, her membership agreement contained an arbitration clause requiring the parties to resolve this dispute through arbitration. Michael moved to compel arbitration, and the court agreed, finding the arbitration clause enforceable as to the plaintiff’s claims and granting the motion.

Mark C. Severino (Partner-Las Vegas) and Elisa Wyatt (Of Counsel-Las Vegas) secured dismissal in the Eighth Judicial District Court, Clark County, Nevada, for Wilson Elser’s client, an aviation services company. This case involves a catastrophic accident that occurred in Mexico in 2019. On the day of the accident, the aircraft involved was en route from Las Vegas, Nevada, to Monterrey, Mexico, with ten passengers and three crew members on board. Prior to departure, the plane received services from our aviation client, a fixed base operator. After encountering severe thunderstorms in a municipality in the state of Coahuila, Mexico, the aircraft departed coordinated flight, flew completely out of control, suffered dual engine flameouts, and crashed in a flat descent altitude. All thirteen people on board died in the crash. Plaintiffs alleged that fuel supplied by our client or other services provided by the client caused or contributed to the engine flameouts that led to the crash. Following five years of extensive discovery conducted in the United States and Mexico, Mark and Elisa affirmatively proved that the aviation services company did not cause or contribute to the accident, leading to a negotiated, complete dismissal of all claims against the client. 

Michael Lowry (Partner-Las Vegas) prevailed on a motion to dismiss based on forum non conveniens for Wilson Elser’s client, a hotel on the East Coast. The plaintiffs brought suit in the Eighth Judicial District Court, Clark County, Nevada, alleging they were assaulted and battered at the hotel. Michael moved to dismiss based on forum non conveniens, so the case could be re-filed in the jurisdiction where the hotel is located. The guests and all the evidence relating to what had occurred were in that jurisdiction. The district court agreed that the plaintiffs' choice of Nevada as the forum was entitled to less deference and that the balance of interests favored litigating the matter in the home jurisdiction. Wilson Elser’s motion was granted, and the case was dismissed without prejudice to be litigated in a different forum.

Colt Dodrill (Partner-Phoenix), Katherine Stewart (Of Counsel-Phoenix), and Jake Ordorica (Associate-Las Vegas) have obtained voluntary dismissals of the firm’s car-sharing platform client and various vehicle owners without having to file motions to dismiss. Colt, Katie, and Jake have called and educated multiple plaintiffs’ counsel in Arizona and Nevada on their states’ respective peer-to-peer car-sharing statutes, explaining the facts of various cases and how clients are immune from suit under those statutes. They also forwarded favorable rulings to opposing counsel from prior cases, holding that no negligent entrustment claim will stand when the shared-vehicle driver has a valid driver’s license, and finding clients are not vicariously liable for each driver’s negligence. This wave of voluntary dismissals by separate plaintiffs’ firms in two states has saved Wilson Elser clients substantial defense costs and allowed carriers to close files quickly.   

Colt Dodrill (Partner-Phoenix) and Jake Ordorica (Associate-Las Vegas) successfully moved in Nevada’s Clark County District Court to dismiss negligence claims against Wilson Elser’s clients – a car-sharing platform and the vehicle owner. The plaintiff alleged that the clients negligently entrusted the car to a “Doe” driver who hit her vehicle and fled the scene. After opposing counsel refused to voluntarily dismiss our clients, Colt and Jake argued that the shared vehicle driver’s valid license belied the negligent entrustment claim and that such liability does not extend to successive entrustments. Colt and Jake further argued that, under state peer-to-peer car sharing statutes, federal law bars vicarious liability claims. The Court agreed, granting Wilson Elser’s motion two days before the scheduled hearing.

Michael Stoberski (Of Counsel-Las Vegas, NV) and Nicholas Adams (Associate-Las Vegas, NV), after the plaintiff rested in a bench trial in the District Court for Clark County, Nevada, were granted their NRCP 52(c) motion for judgment as a matter of law, and the court entered judgment for Wilson Elser’s attorney clients on the plaintiff’s sole legal malpractice claim. The court found that the plaintiff failed to prove essential elements of legal malpractice, including the standard of care, breach, and proximate cause. During the plaintiff’s case-in-chief, Mike and Nicholas introduced evidence showing that the challenged strategy rested on legal research, client communications, and the need to secure affirmative relief in light of the opposing party’s filings in the underlying action. The court agreed that these issues were nuanced and not suitable for resolution without expert testimony, and it found that the plaintiff offered no competent evidence that a different pleading approach would have produced a better outcome or that the defense’s conduct foreclosed any post-judgment remedies.

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.

Michael Lowry (Partner-Las Vegas, NV) was retained to represent a manufacturer against a water loss subrogation claim at a luxury home near Lake Tahoe. The homeowner's insurer alleged the client's water system equipment was defective and caused extensive damage to the home. The subrogating insurer timely filed suit but failed to timely open discovery. The Second Judicial District Court, Washoe County, Nevada, agreed the subrogating insurer failed to present compelling and extraordinary circumstances to excuse the delay. Michael's motion to dismiss was granted.

Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) obtained a voluntary dismissal of all claims against Wilson Elser’s client, a flooring subcontractor, in the Eighth Judicial District Court, Las Vegas. The case involved a trip and fall incident that occurred during a renovation project. Michael and Kevin noted that the client's job file reflected that it did not start work on the project until two days after the alleged fall. After reviewing the job files from the general contractor and other subcontractors, the plaintiff agreed with that timeline and voluntarily dismissed all claims against our subcontractor client only.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in the United States District Court, District of Nevada, for a retail client named in a slip and fall action. The plaintiff alleged that customers were frequently stealing food by eating it inside the client’s store and then throwing the used containers on the floor, creating slip and fall hazards. However, there was no evidence that this alleged activity caused the hazard that the plaintiff found after her fall. The district court concluded that the plaintiff lacked evidence demonstrating the retailer had permitted a virtually continuous hazard to exist, granting Wilson Elser’s motion for summary judgment.

Michael Lowry (Partner-Las Vegas) won summary judgment in the Eighth Judicial District Court in Las Vegas for a fitness club client. The plaintiff, a club member, sued the client, alleging that he sustained injuries after slipping and falling while using the club’s facilities. Michael determined that the plaintiff’s membership agreement contained an assumption of risk regarding the use of the facility and a waiver of claims, prompting him to move for summary judgment at the outset of the case. The court concurred, granting Michael’s summary judgment motion and saving Wilson Elser’s client thousands of dollars in legal fees. 

Michael Lowry (Partner-Las Vegas, NV) and Ashley Zurkan (Associate-Las Vegas, NV) worked with a luxury homeowners’ association client to develop facts that led to a voluntary dismissal. A mobile dog groomer tripped on a sidewalk near a home, and it was initially unclear who controlled this part of the sidewalk. Michael and Ashley worked with the homeowners' association to begin developing facts supporting the HOA's position that the individual homeowner controlled this area. They then worked with the plaintiff to confirm repairs had occurred in the area and the homeowner paid for the repairs. With control confirmed, the plaintiff voluntarily dismissed the HOA and instead pursued the homeowner. This collaborative approach ultimately saved the parties time and money.

Russ Vignali (Senior Counsel-White Plains, NY) and Ellen Bowman (Of Counsel-Las Vegas, NV) represented several clients involved in a product’s design and manufacture in a case involving an allegedly defective nail gun venued in the U.S. District Court, District of Nevada. On behalf of another client – the entity that licensed its well-known trade name to the nail gun’s retailer – Russ and Ellen moved for summary judgment on the grounds that, as a mere “licensor,” the entity was not truly in the nail gun’s chain of distribution and could not therefore be strictly liable for any design or manufacturing defect. The issue was one of first impression for Nevada courts. For that reason, the District Court certified the following question to the Supreme Court of Nevada:

Does Nevada impose strict products liability on an entity whose only involvement with a defective or unreasonably dangerous product is to license its trademark to be used to market the product and where the product and packaging prominently display its trademark?

Russ and Ellen emphasized a modern trend around the country that has protected companies that merely license their trade name but otherwise play no role in the product’s design and development. They cited the importance of product licensing in the modern American economy and the chilling effect that an adverse ruling would have in Nevada, where the gaming industry in particular relies so heavily on licensing and the use of trademarks. After significant briefing on both sides of the issue, including the filing of amicus briefs, the Nevada Supreme Court (in a 5-2 decision issued on May 1^, 2925) answered the certified question in the negative – marking a major victory for trademark owners operating in Nevada who license their trade names but exercise no control over the product’s final design and quality control.

The underlying case will continue against the remaining defendants.

Michael Lowry (Partner-Las Vegas, NV) and Patrick Tarzi (Associate-Las Vegas, NV) successfully defended a Las Vegas resort and casino against a property theft claim filed by a guest. The guest alleged certain items were stolen from his room. However, Patrick pointed out that the guest had not used the in-room safe nor did he attempt to deposit the items with the hotel for safekeeping. As a result, the Las Vegas Justice Court, Small Claims concluded the guest had not meet his burden of proof under NRS 651.010. A defense decision was entered. 

Michael Stoberski (Of Counsel-Las Vegas, NV) and Nicholas Adams (Associate-Las Vegas, NV) prevailed on a motion for summary judgment in District Court for Clark County, Nevada, against all claims brought against Wilson Elser’s clients over management of an apartment complex. Joseph Laird (Partner-White Plains, NY) collaborated in the defense of the case. The plaintiff alleged breach of contract and breach of the duty of good faith and fair dealing and sought declaratory relief concerning the rights and obligations under the property management agreement. Competing motions for summary judgment were filed arguing different interpretations of the property management agreement. Mike and Nicholas demonstrated, under the property management agreement, that our clients had no obligation to collect debt from past tenants and damages were precluded based on the breaches alleged. Before the scheduled oral argument, the district court issued its order agreeing entirely with the interpretation put forth by our clients. As a result, summary judgment was granted as to all claims and the hearing was vacated bringing this case to a successful resolution. 

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.
 

Michael Lowry (Partner-Las Vegas, NV) and Kevin Brown (Of Counsel-Las Vegas, NV) worked to develop facts leading to a nuisance-value settlement in a case in which a high-school student attempted to cross six lanes of traffic on a main thoroughfare. His alleged actions were much like a real-life game of Frogger. When the plaintiff tried to cross the sixth lane, he was struck by a car owned by a pre-owned vehicle dealer and driven by a vendor who was taking it to his shop to prepare it for sale. The teen sued the driver alleging significant injuries. He also sued the dealer alleging negligent entrustment. An entrustment clearly occurred, but Michael and Kevin worked with the dealer to develop facts demonstrating the entrustment was not negligent. Once these facts were developed, the teen accepted a nuisance value settlement rather than litigate summary judgment.