Edward M. O'Brien

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.

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. 

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. 

Edward M. O'Brien (Partner-Louisville, KY) and Andrew-John Bokeno (Associate-Louisville, KY) succeeded in enforcing a forum selection clause in the Indiana Supreme Court in Indianapolis in a multimillion-dollar commercial litigation case brought against Wilson Elser’s client, a security company. A large poultry company sued our client, alleging that the security company's negligence led to a chemical accident at a poultry processing plant, causing millions of dollars in damages. The client moved to compel enforcement of a forum selection clause contained in the parties' contract, which the trial court granted. However, a divided panel of the Indiana Court of Appeals reversed the trial court, finding that enforcing the forum selection clause would unduly prejudice the plaintiff. The Indiana Supreme Court granted a review of the case. It reversed the Court of Appeals' decision, finding that the forum selection clause was valid and enforceable. Specifically, the Indiana Supreme Court rejected the plaintiff's argument that forum selection clauses cannot be enforced where some of the defendants in a case are parties to the clause but others are not, which was an issue of first impression for the court.

Edward M. O'Brien (Partner-Louisville, KY) obtained summary judgment in the U.S. District Court for the Southern District of Indiana in favor of Wilson Elser’s client, an insurer. This case stems from a brawl at an insured's bar establishment. The plaintiff, a bar patron, alleges that a bar employee inflicted serious physical injury upon him while attempting to break up an altercation. The patron sued the bar to recover the establishment’s insurance policy general commercial liability limit of $1 million. The firm's insurer client maintained that coverage for injuries caused by an assault and battery is limited to $25,000 per person under the policy. Eddie filed a declaratory judgment action, and despite the patron’s assertion that the policy language was ambiguous and that the general $1 million limit should apply, the court agreed with Eddie’s argument. It granted summary judgment in favor of Wilson Elser’s client, thereby limiting the insurer’s possible exposure to $25,000 instead of the $1 million general limit. 

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

Edward M. O'Brien (Partner-Indianapolis, IN) and Andrew-John Bokeno (Associate-Louisville. KY) obtained summary judgment in a federal court case arising from a public university's adjudication of a sexual assault allegation made by a female student against a male student. The firm's client is a Title IX consulting company that served as the third-party tribunal that heard evidence, found that the male student more likely than not committed the alleged acts, and recommended he be suspended for three semesters. The male student sued the university and the firm's client, alleging that they discriminated against him on the basis of sex in violation of Title IX. The plaintiff also asserted claims for intentional infliction of emotional distress. Following extensive litigation, the Southern District of Indiana granted summary judgment in favor of the firm's client. The plaintiff had demanded $3 million from the defendants to settle the case prior to the ruling.

Louisville, Kentucky partners Edward O’Brien and James Burd prevailed in a bench trial in the United States District Court, Western District of Kentucky, for Wilson Elser’s client, an investor who was a victim of fraud. Eddie and Jim served as local counsel in this complex case arising from the fraudulent schemes to evade creditors perpetrated by a convicted con man and those working alongside him. These individuals were involved in a natural gas drilling operation in West Virginia. Our client fell victim to the fraud scheme, investing most of his life's savings in oil and gas wells owned by the defendants and receiving returns representing a fraction of his original investment. Following a bench trial, the court awarded the client $1.65 million in compensatory damages and $1.65 million in punitive damages, with post-judgment interest of 5.35 percent. On appeal to the U.S. Court of Appeals for the Sixth Circuit, the judgment was affirmed in all respects, and efforts to collect on the judgment are underway.

Edward M. O'Brien (Partner-Louisville, KY) and Andrew-John Bokeno (Associate-Louisville, KY) recently succeeded in securing dismissal of claims brought in Kentucky state court after the same claims had been dismissed on summary judgment in Indiana. The plaintiffs sued our client, a roofing system manufacturer, in Jefferson Circuit Court, Kentucky, arguing that the roofing system manufactured by our client was defective and caused damage to their commercial building. Eddie and AJ moved to dismiss the case on various grounds, including that the same claims had previously been litigated in Indiana, which resulted in summary judgment in favor of our client. The court agreed, holding that the claims brought by the plaintiffs "were the same as those brought by their proxy" in Indiana and "those claims were fully adjudicated on the merits" in the Indiana litigation. Accordingly, the court concluded that the claims were barred. The plaintiffs did not appeal the trial court's ruling, ending more than a decade of litigation across two states. The plaintiffs demanded $750,000 to resolve the case prior to dismissal.

Edward O’Brien (Partner-Louisville) successfully obtained a rare reversal of a remand to state court in the United States District Court for the Eastern District of Kentucky for Wilson Elser’s client, an insurance company. The plaintiff sued our insurer client in state court following the insurer's denial of his claim for long-term disability benefits but failed to effectuate service for more than ten months. After the plaintiff properly served the insurance company at the correct address, the client removed the case to federal court. In response, the plaintiff filed a motion to remand the case to state court, arguing that the removal was untimely and that the client was properly served at the outset of the litigation. Initially, the district court sided with the plaintiff and granted the motion to remand. Eddie moved for reconsideration, and the court granted Wilson Elser’s request, reversing its prior decision and acknowledging that the previous ruling "rested on a material factual error." As a result, the case remained in federal court. Reversals of orders remanding cases to state court are exceedingly uncommon.

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

Edward M. O’Brien (Partner-Louisville, KY/Indianapolis, IN) and Cyrus G. Dutton IV (Associate-Louisville, KY) represented an insurer in a case in which plaintiff was involved in a motor vehicle accident and asserted a claim against an automobile liability insurer, our client, for "unfair claims violations and bad faith” – a third-party bad faith claim. Specifically, the plaintiff alleged that our client "failed and refused to comply with Indiana's Unfair Claims Settlement Practices Act". Edward and Cyrus moved to dismiss for failure to state a claim for which relief can be granted as Indiana law does not recognize or permit third-party bad faith actions against insurance carriers. Cyrus argued the motion before Clark County Superior Court, and the motion was granted.