Denise Motta (Of Counsel-Louisville, KY) and Samuel Jones (Associate-Louisville, KY) successfully obtained an order compelling arbitration and staying the case in Boone County Circuit Court, Kentucky, on behalf of Wilson Elser’s home inspector client. The plaintiffs alleged personal injuries arising from exposure to mold in a residential property. In addition to suing our client, the plaintiffs brought claims against the realtor and other parties involved in the sale of the home, alleging they concealed the home’s condition. The home inspection contract contained several provisions favorable to our client, including an exclusion for mold inspections, a significant limitation of liability, and a mandatory arbitration agreement. The court concurred that the claims against the home inspector were subject to arbitration and stayed the litigation as to our client.

Denise Motta (Of Counsel-Louisville) and Estee Rose (Associate-Louisville) obtained dismissal for Wilson Elser’s property owner client in a negligence action arising from injuries allegedly caused by a drunk patron at a casino. The casino was operated by a separate corporate entity, which the plaintiff did not name in the lawsuit, instead suing our client. Denise and Estee moved to dismiss, arguing that the client was not a proper party and, therefore, the complaint failed to state a claim upon which relief could be granted. The court agreed and dismissed the claim with prejudice.

Lindsay M. Gray (Partner-Louisville) and Trey Shoemaker (Associate-Louisville) prevailed on a motion to compel arbitration and stay proceedings in Jefferson County Circuit Court, Louisville, Kentucky, on behalf of a transportation network company (TNC) client. The plaintiffs, a TNC driver and a rider, asserted that the TNC was required to maintain uninsured motorist coverage; that the written agreements between the plaintiffs and the TNC were, in part, agreements to maintain insurance; and that the arbitration provisions in the written agreements were contracts of adhesion or otherwise unconscionable. Following extensive briefing, Lindsay and Trey filed a motion to compel arbitration and stay proceedings, arguing that the plaintiffs were bound by the arbitration provisions and that the Circuit Court was not the mutually agreed-upon venue for resolving the dispute. The court granted the Wilson Elser team’s motion, finding that the arbitration provisions in the written agreements were binding and that there was no evidence that the agreements were contracts of adhesion, unconscionable, or otherwise non-binding as a matter of public policy. This ruling strengthens Kentucky precedent supporting the validity of arbitration provisions in written agreements used by TNCs, so long as they meet basic requirements for notice and reasonable opt-out provisions. The court also denied the plaintiffs’ subsequent motion to make the order final and appealable.

Edward M. O’Brien (Partner-Louisville, KY) and Andrew-John R. Bokeno (Associate-Louisville, KY) were once again enlisted by the Kentucky Defense Counsel, Inc., Kentucky’s largest association of civil defense attorneys, to file an amicus brief on its behalf in a case pending before the Kentucky Supreme Court. The brief advocated that the trial court and Court of Appeals correctly held that, in the context of malicious prosecution claims, an occurrence-based law enforcement liability policy is not triggered by harm arising from pre-policy conduct that merely continues into the policy period. Relying on fundamental tenets of Kentucky contract law and interpretation, which constitute the prevailing view in most other jurisdictions, the brief argued that no “occurrence” – and thus no coverage obligation – exists in the policy language where a claimant alleges malicious prosecution before the policy period began, even if incarceration continued during the policy term. The Kentucky Supreme Court affirmed the lower courts’ rulings, holding that a malicious prosecution occurs at the time the underlying charges are filed for purposes of determining a qualifying “occurrence” under a law enforcement liability policy. Adopting many of the arguments advanced in Eddie and AJ’s briefing, the Supreme Court’s decision reinforces the importance of adhering to fundamental principles of contract law and resolves a significant issue that has divided multiple state and federal courts. 

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.

Denise M. Motta (Of Counsel-Louisville) and Samuel E.T. Jones (Associate-Louisville) obtained a favorable decision from the United States District Court, Southern District of Indiana, granting a motion for preliminary injunction on behalf of their geotechnical engineering client. The client had provided geotechnical services for an interstate construction project that later became the subject of an arbitration proceeding. After being joined to the arbitration over objection, the client filed suit in federal court seeking a declaratory judgment that the claims asserted against it were not subject to arbitration. The court granted the preliminary injunction, finding that the dispute resolution clause in the upstream contract was not binding on the engineering client, nor did it delegate authority to the arbitrator to determine arbitrability. The court further concluded that the client was likely to succeed on the merits of the declaratory judgment action. As a result, the court enjoined and stayed the arbitration proceedings as to the geotechnical engineer. The court also denied a motion to dismiss based on forum non conveniens for the same reasons.

Edward M. O’Brien (Partner-Louisville, KY), John H. Dwyer (Of Counsel-Louisville, KY), and AJ Bokeno (Associate-Louisville, KY) secured a significant victory in the U.S. District Court for the Southern District of Indiana for the firm’s client, the owner of a manufactured home community, obtaining an Order of Dismissal against all claims brought by more than 30 plaintiffs seeking over $15 million in damages. The plaintiffs, tenants in the client’s community, brought individual and class action claims against the client, alleging multiple theories of liability related to payments under lease agreements and the physical property on which the community sat. The plaintiffs’ allegations included breach of lease, statutory violations, negligence, and fraud. Eddie, John, and AJ responded with an extensively briefed motion to dismiss under Rule 12(b)(6), arguing that none of the claims met the required legal standards under Indiana law and Seventh Circuit precedent. The court agreed, dismissing all of the plaintiffs’ claims against the client with prejudice, while adopting a majority of the legal arguments and theories advanced by the defense. The Louisville team’s securing a total dismissal of the matter, disposing of more than thirty plaintiffs’ multiple claims, delivered a complete defense win for the firm’s client. 

Doug Kemper (Of Counsel-Louisville, KY) succeeded in a motion to dismiss the firm’s insurer client. Plaintiff homeowners claimed the client’s Insured, a home inspection company, conducted a negligent pre-purchase inspection of the home and failed to discover and report numerous problems that if properly disclosed would have negated the purchase. Plaintiffs asserted claims of negligence, breach of contract, violation of the Kentucky Consumer Protection Act, negligence per se, and fraud, and sought punitive damages for alleged misrepresentations about the insured company’s work and certification that the inspection would be conducted by a licensed professional. Our client carrier denied coverage for the claims, which were specifically excluded in an endorsement. The plaintiffs then amended their complaint to join our carrier client in a Declaratory Judgment action obligating the carrier to provide coverage for the plaintiffs’ claim. Doug filed a Rule 12 motion to dismiss for failure to state a claim, arguing that (1) because Kentucky is a “no direct action” state, the plaintiffs could not assert a claim directly against the carrier, and (2) the plaintiffs lacked standing to bring a Declaratory Judgment action to litigate a coverage issue between an insurer and its insured. Upon review of our Motion to Dismiss, counsel conceded that the motion was well taken and offered to enter an Agreed Order to dismiss the carrier with prejudice.

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. 

Jeremy J. Nelson (Of Counsel-Louisville, KY) and Cyrus G. Dutton IV (Associate-Louisville, KY) obtained dismissal on behalf of a client in a case in which the plaintiff, an employee of a food product distribution company, fell while offloading product into the client’s restaurant. Jeremy and Cyrus moved for summary judgment under Kentucky’s Workers’ Compensation Act, arguing that the client was entitled to up-the-ladder immunity under the Act. Specifically, they argued that the delivery of food inventory to the client’s restaurant was a regular and recurrent part of the client’s business. The U.S. District Court for the Eastern District of Kentucky granted the motion, dismissing the case with prejudice, and opposing counsel did not appeal.