Francis A. Howell III

On May 27, 2026, Governor Kathy Hochul signed New York's 2026 state budget into law. The $268.1 billion budget includes significant tort reform provisions for New York State motor vehicle litigation. The reforms took effect immediately and apply to all motor vehicle actions commenced on or after the law’s passage, other than accidents resulting in a death or property damage.  I. Shift from Pure to Modified Comparative Negligence in Motor Vehicle Cases The biggest change is to C.P.L.R. § 1411, which has long governed comparative negligence in New York. With the addition of a new subsection "b," New York now moves from a pure to a modified comparative negligence state but just for motor vehicle accident cases. Under a pure comparative negligence system, plaintiffs could recover compensation even if they were predominantly at fault. For example, a party who was 99 percent responsible for an accident could still recover one percent of the total damages. Now, under the new law, a plaintiff who is more at fault (i.e. more than 50 percent) than the other persons involved in a motor vehicle accident cannot recover. In practice, if a jury finds a car accident plaintiff is 51 percent or more at fault, it will not proceed to calculate and award damages.  II. Elimination of the 90/180-Day Serious Injury Category The tort reform also amends subsection (d) of Insurance Law § 5102 to eliminate the so-called "90/180-day" category of serious injury. Under prior law, a plaintiff could satisfy the serious injury “threshold” by demonstrating a medically determined injury of a non-permanent nature that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the 180 days immediately following the accident (e.g. going to work or school). This category faced significant criticism because it often relied on subjective, self-reported information and/or allowed someone who could go to work but didn’t to automatically meet the threshold. III. New Sequencing Requirement: Fault Before Serious Injury Another aspect is that Insurance Law § 5104(a) now requires juries to decide who is at fault for a motor vehicle accident before figuring out whether the serious injury threshold is met. Under the new rules, liability for non-economic loss (i.e., pain and suffering) isn't set until fault is determined. This means that the trier of fact must assign blame first, then assess damages afterward, specifically for non-economic losses. The new sequencing rule has significant strategic effects. Under the updated comparative negligence system for car accident cases, if the jury finds the plaintiff more than 50 percent at fault, they stop right there–no damages awarded. If the plaintiff’s fault does not exceed 50 percent, the jury then considers whether the plaintiff’s injuries satisfy the other requirements in § 5102(d). This makes trials more efficient and keeps juries from letting information about injuries bias their decision when the plaintiff is too fault-prone to recover damages. IV. Recovery Cap for Claimants Engaged in Unlawful Conduct Finally, Insurance Law Section 5104 now includes a new subsection (d). It caps non-economic loss (i.e., pain and suffering) recovery for a motor vehicle accident at $100,000 when the plaintiff is in one of three specific groups (unless the accident results in death): The plaintiff was operating an uninsured motor vehicle in violation of Article 6 of the Vehicle and Traffic Law (with an exception for lapses in coverage of fewer than 30 days). The plaintiff was operating a motor vehicle while impaired and has been convicted of that offense. The plaintiff was operating a motor vehicle in the commission of a felony or in immediate flight afterwards, with a conviction for the same. While the situations described above are thankfully rare, they do occur. The new law will prevent a significant recovery from others by drivers who were uninsured, intoxicated, and/or felons. The authors acknowledge the contributions made by summer staff assistant Christopher DeMicco.

The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not. Background: The Construction Statute of Repose In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.  Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).  Concept Statute of Limitation (SOL) Statute of Repose (SOR) Trigger Event Accrual of cause of action (discovery of injury) Substantial completion of construction services Primary Purpose Encourages diligent prosecution of known claims Provides a date certain for the end of legal liability Duration (WA) Generally, two-to-three years for torts Six years for construction-related activities Tolling Often tolled by discovery or minority status Generally, not tollable (hard outer wall) Status of Right Bars the remedy Extinguishes the underlying right of action For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12. Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts: The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property. The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function. The Polinder Decision In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims. 1. The Integral Systems Requirement  The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose. 2. The Product Seller Exception  While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed. Impact on Asbestos Cases and Defendants The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward: Reliance on Expert Evidence Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate. Evaluating the Contractor's Role Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials. Continued Importance of Proximate Cause For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure. Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026). Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.

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. 

What happens if a personal injury plaintiff files bankruptcy but fails to disclose the personal injury claim in the bankruptcy case? The United States Supreme Court has now resolved a circuit split about how to analyze that question, and it could impact pending claims. In Keathley v. Buddy Ayers Construction, Inc,. the Keathleys were involved in a motor vehicle accident with a Buddy Ayers employee in August 2021. They had an open Chapter 13 repayment plan but did not disclose the claim in the bankruptcy case after the accident occurred or when they filed suit. Buddy Ayers learned of the bankruptcy and moved for summary judgment in March 2023, arguing the Keathleys had taken inconsistent positions—first denying the claim in bankruptcy then later asserting it in the personal injury case. Buddy Ayers argued judicial estoppel barred the Keathleys from pursuing the personal injury claim because they had previously denied it existed in bankruptcy. The district court applied Fifth Circuit precedent and granted summary judgment, which the Fifth Circuit affirmed. The Supreme Court reversed on narrow grounds, finding both lower courts used the wrong standard. Judicial estoppel is an equitable doctrine. “[W]hen a court conducts an equitable inquiry, it must act on a case-by-case basis, considering all relevant facts and circumstances.” Thus, the judgment was reversed and remanded to apply that test to the facts of this case. It gave no opinion as to what might happen when that test is applied. This ruling changes the approach in circuits that previously applied narrower standards. District courts in those areas will now consider more factors, potentially making it harder to prevail on motions like Buddy Ayers filed. Keathley may also reduce some of the disincentives for bankrupt plaintiffs to conceal assets.

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. 

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

Rachel Walters (Of Counsel-Miami, FL) has been named Chair of The Florida Bar’s Civil Trial Board Certification Committee, following her service as Vice Chair during the 2025 ‒ 2026 term.  A Florida Board-Certified Civil Trial Lawyer, Rachel is among a select group of attorneys recognized by the Florida Bar for exceptional trial expertise, extensive courtroom experience, and the highest standards of professionalism. As a member of Wilson Elser’s National Trial team, she is routinely called in to assume the firm’s most technical and challenging cases. Rachel’s extensive trial experience, proven advocacy skills, and respected leadership within the legal community make her uniquely qualified to lead the committee responsible for evaluating and maintaining Florida’s highest standards for board-certified civil trial lawyers.

Otis Felder (Partner-Los Angeles/San Francisco) has earned a certificate after completing Stanford Graduate School of Business’s executive education program, Digital Transformation: Leading Organizational Change in the Age of AI. The intensive week-long program, taught by faculty from Stanford GSB and the School of Engineering, provided senior leaders from around the world with the strategic and technical skills needed to drive digital initiatives. The curriculum covered artificial intelligence, data analytics, business opportunities, digital implementation, and organizational change. As a litigation attorney with a strong interest in technology-driven legal practice and the implications of AI use for clients, Otis pursued the credential to strengthen his expertise in digital transformation ‒ to improve client service, case strategy, and practice management. In February 2026, Otis also earned a Certificate for Applied Generative AI for Digital Transformation from the Massachusetts Institute of Technology (MIT). Regarding his Stanford experience, Otis says, “I had a great time and met people from all around the world!” 

Samantha Marrelli (Associate-White Plains, NY) and Gregg Tatarka (Partner-White Plains, NY) secured a stipulation of discontinuance in the Supreme Court of the State of New York, Sullivan County, on behalf of a global consumer electronics company client in a product liability action arising from an alleged residential fire. The plaintiff claimed that a washing machine at their Rock Hill, New York, residence was defective and caused a fire.  The complaint asserted causes of action for negligence, strict product liability, breach of warranty, and product malfunction, and sought damages of nearly $90,000, plus interest from the date of the alleged fire. Throughout the litigation, the plaintiff's counsel repeatedly attempted to settle the matter without a laboratory examination of the subject product. Samantha consistently pushed back and maintained the client’s position that no settlement discussions would be entertained absent an examination. After Wilson Elser refused multiple settlement demands, the plaintiff provided a stipulation of discontinuance and is no longer pursuing the matter. 

Jacqueline Hattar (Partner-White Plains, NY) and Urvashi Sinha (Partner-New York, NY) obtained summary judgment on behalf of Wilson Elser’s client, a truck driver, in the New York State Supreme Court, Bronx County. The plaintiff alleged that our client was negligent in the ownership and operation of his tractor-trailer truck by illegally parking it on a Bronx roadway. As a result of the alleged accident, the plaintiff claimed to have sustained serious injuries to his right shoulder and lumbar spine, requiring two surgeries, and sought to recover the client’s $1 million policy limit. Before depositions were completed, Jackie moved for summary judgment, seeking dismissal of the plaintiff’s complaint and all cross-claims. Jackie and Urvashi argued that, based on the police investigation and witness statements, our client’s truck was legally parked and did not make contact with the plaintiff’s vehicle, which had been struck by the co-defendant’s vehicle. In opposition, the plaintiff argued that the motion was premature because depositions had not yet been completed and that triable issues of fact existed as to whether Wilson Elser’s client was lawfully parked and whether the parked truck caused or contributed to the accident. In reply, Jackie and Urvashi maintained that the plaintiff failed to submit any evidence in admissible form, such as affidavits, photographic, or video evidence, to establish that the client’s truck was illegally parked in the roadway. The court agreed with Wilson Elser’s arguments and granted the motion in all respects. Jackie drafted the motion papers, and Urvashi orally argued the motion before the court on behalf of our client. The plaintiff’s action is continuing against the co-defendants, the driver and the vehicle owner.  

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. 

The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not. Background: The Construction Statute of Repose In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.  Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).  Concept Statute of Limitation (SOL) Statute of Repose (SOR) Trigger Event Accrual of cause of action (discovery of injury) Substantial completion of construction services Primary Purpose Encourages diligent prosecution of known claims Provides a date certain for the end of legal liability Duration (WA) Generally, two-to-three years for torts Six years for construction-related activities Tolling Often tolled by discovery or minority status Generally, not tollable (hard outer wall) Status of Right Bars the remedy Extinguishes the underlying right of action For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12. Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts: The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property. The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function. The Polinder Decision In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims. 1. The Integral Systems Requirement  The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose. 2. The Product Seller Exception  While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed. Impact on Asbestos Cases and Defendants The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward: Reliance on Expert Evidence Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate. Evaluating the Contractor's Role Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials. Continued Importance of Proximate Cause For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure. Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026). Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.

On May 27, 2026, Governor Kathy Hochul signed New York's 2026 state budget into law. The $268.1 billion budget includes significant tort reform provisions for New York State motor vehicle litigation. The reforms took effect immediately and apply to all motor vehicle actions commenced on or after the law’s passage, other than accidents resulting in a death or property damage.  I. Shift from Pure to Modified Comparative Negligence in Motor Vehicle Cases The biggest change is to C.P.L.R. § 1411, which has long governed comparative negligence in New York. With the addition of a new subsection "b," New York now moves from a pure to a modified comparative negligence state but just for motor vehicle accident cases. Under a pure comparative negligence system, plaintiffs could recover compensation even if they were predominantly at fault. For example, a party who was 99 percent responsible for an accident could still recover one percent of the total damages. Now, under the new law, a plaintiff who is more at fault (i.e. more than 50 percent) than the other persons involved in a motor vehicle accident cannot recover. In practice, if a jury finds a car accident plaintiff is 51 percent or more at fault, it will not proceed to calculate and award damages.  II. Elimination of the 90/180-Day Serious Injury Category The tort reform also amends subsection (d) of Insurance Law § 5102 to eliminate the so-called "90/180-day" category of serious injury. Under prior law, a plaintiff could satisfy the serious injury “threshold” by demonstrating a medically determined injury of a non-permanent nature that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the 180 days immediately following the accident (e.g. going to work or school). This category faced significant criticism because it often relied on subjective, self-reported information and/or allowed someone who could go to work but didn’t to automatically meet the threshold. III. New Sequencing Requirement: Fault Before Serious Injury Another aspect is that Insurance Law § 5104(a) now requires juries to decide who is at fault for a motor vehicle accident before figuring out whether the serious injury threshold is met. Under the new rules, liability for non-economic loss (i.e., pain and suffering) isn't set until fault is determined. This means that the trier of fact must assign blame first, then assess damages afterward, specifically for non-economic losses. The new sequencing rule has significant strategic effects. Under the updated comparative negligence system for car accident cases, if the jury finds the plaintiff more than 50 percent at fault, they stop right there–no damages awarded. If the plaintiff’s fault does not exceed 50 percent, the jury then considers whether the plaintiff’s injuries satisfy the other requirements in § 5102(d). This makes trials more efficient and keeps juries from letting information about injuries bias their decision when the plaintiff is too fault-prone to recover damages. IV. Recovery Cap for Claimants Engaged in Unlawful Conduct Finally, Insurance Law Section 5104 now includes a new subsection (d). It caps non-economic loss (i.e., pain and suffering) recovery for a motor vehicle accident at $100,000 when the plaintiff is in one of three specific groups (unless the accident results in death): The plaintiff was operating an uninsured motor vehicle in violation of Article 6 of the Vehicle and Traffic Law (with an exception for lapses in coverage of fewer than 30 days). The plaintiff was operating a motor vehicle while impaired and has been convicted of that offense. The plaintiff was operating a motor vehicle in the commission of a felony or in immediate flight afterwards, with a conviction for the same. While the situations described above are thankfully rare, they do occur. The new law will prevent a significant recovery from others by drivers who were uninsured, intoxicated, and/or felons. The authors acknowledge the contributions made by summer staff assistant Christopher DeMicco.

What happens if a personal injury plaintiff files bankruptcy but fails to disclose the personal injury claim in the bankruptcy case? The United States Supreme Court has now resolved a circuit split about how to analyze that question, and it could impact pending claims. In Keathley v. Buddy Ayers Construction, Inc,. the Keathleys were involved in a motor vehicle accident with a Buddy Ayers employee in August 2021. They had an open Chapter 13 repayment plan but did not disclose the claim in the bankruptcy case after the accident occurred or when they filed suit. Buddy Ayers learned of the bankruptcy and moved for summary judgment in March 2023, arguing the Keathleys had taken inconsistent positions—first denying the claim in bankruptcy then later asserting it in the personal injury case. Buddy Ayers argued judicial estoppel barred the Keathleys from pursuing the personal injury claim because they had previously denied it existed in bankruptcy. The district court applied Fifth Circuit precedent and granted summary judgment, which the Fifth Circuit affirmed. The Supreme Court reversed on narrow grounds, finding both lower courts used the wrong standard. Judicial estoppel is an equitable doctrine. “[W]hen a court conducts an equitable inquiry, it must act on a case-by-case basis, considering all relevant facts and circumstances.” Thus, the judgment was reversed and remanded to apply that test to the facts of this case. It gave no opinion as to what might happen when that test is applied. This ruling changes the approach in circuits that previously applied narrower standards. District courts in those areas will now consider more factors, potentially making it harder to prevail on motions like Buddy Ayers filed. Keathley may also reduce some of the disincentives for bankrupt plaintiffs to conceal assets.

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. 

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

Rachel Walters (Of Counsel-Miami, FL) has been named Chair of The Florida Bar’s Civil Trial Board Certification Committee, following her service as Vice Chair during the 2025 ‒ 2026 term.  A Florida Board-Certified Civil Trial Lawyer, Rachel is among a select group of attorneys recognized by the Florida Bar for exceptional trial expertise, extensive courtroom experience, and the highest standards of professionalism. As a member of Wilson Elser’s National Trial team, she is routinely called in to assume the firm’s most technical and challenging cases. Rachel’s extensive trial experience, proven advocacy skills, and respected leadership within the legal community make her uniquely qualified to lead the committee responsible for evaluating and maintaining Florida’s highest standards for board-certified civil trial lawyers.

Otis Felder (Partner-Los Angeles/San Francisco) has earned a certificate after completing Stanford Graduate School of Business’s executive education program, Digital Transformation: Leading Organizational Change in the Age of AI. The intensive week-long program, taught by faculty from Stanford GSB and the School of Engineering, provided senior leaders from around the world with the strategic and technical skills needed to drive digital initiatives. The curriculum covered artificial intelligence, data analytics, business opportunities, digital implementation, and organizational change. As a litigation attorney with a strong interest in technology-driven legal practice and the implications of AI use for clients, Otis pursued the credential to strengthen his expertise in digital transformation ‒ to improve client service, case strategy, and practice management. In February 2026, Otis also earned a Certificate for Applied Generative AI for Digital Transformation from the Massachusetts Institute of Technology (MIT). Regarding his Stanford experience, Otis says, “I had a great time and met people from all around the world!” 

Samantha Marrelli (Associate-White Plains, NY) and Gregg Tatarka (Partner-White Plains, NY) secured a stipulation of discontinuance in the Supreme Court of the State of New York, Sullivan County, on behalf of a global consumer electronics company client in a product liability action arising from an alleged residential fire. The plaintiff claimed that a washing machine at their Rock Hill, New York, residence was defective and caused a fire.  The complaint asserted causes of action for negligence, strict product liability, breach of warranty, and product malfunction, and sought damages of nearly $90,000, plus interest from the date of the alleged fire. Throughout the litigation, the plaintiff's counsel repeatedly attempted to settle the matter without a laboratory examination of the subject product. Samantha consistently pushed back and maintained the client’s position that no settlement discussions would be entertained absent an examination. After Wilson Elser refused multiple settlement demands, the plaintiff provided a stipulation of discontinuance and is no longer pursuing the matter. 

Jacqueline Hattar (Partner-White Plains, NY) and Urvashi Sinha (Partner-New York, NY) obtained summary judgment on behalf of Wilson Elser’s client, a truck driver, in the New York State Supreme Court, Bronx County. The plaintiff alleged that our client was negligent in the ownership and operation of his tractor-trailer truck by illegally parking it on a Bronx roadway. As a result of the alleged accident, the plaintiff claimed to have sustained serious injuries to his right shoulder and lumbar spine, requiring two surgeries, and sought to recover the client’s $1 million policy limit. Before depositions were completed, Jackie moved for summary judgment, seeking dismissal of the plaintiff’s complaint and all cross-claims. Jackie and Urvashi argued that, based on the police investigation and witness statements, our client’s truck was legally parked and did not make contact with the plaintiff’s vehicle, which had been struck by the co-defendant’s vehicle. In opposition, the plaintiff argued that the motion was premature because depositions had not yet been completed and that triable issues of fact existed as to whether Wilson Elser’s client was lawfully parked and whether the parked truck caused or contributed to the accident. In reply, Jackie and Urvashi maintained that the plaintiff failed to submit any evidence in admissible form, such as affidavits, photographic, or video evidence, to establish that the client’s truck was illegally parked in the roadway. The court agreed with Wilson Elser’s arguments and granted the motion in all respects. Jackie drafted the motion papers, and Urvashi orally argued the motion before the court on behalf of our client. The plaintiff’s action is continuing against the co-defendants, the driver and the vehicle owner.  

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. 

The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not. Background: The Construction Statute of Repose In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.  Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).  Concept Statute of Limitation (SOL) Statute of Repose (SOR) Trigger Event Accrual of cause of action (discovery of injury) Substantial completion of construction services Primary Purpose Encourages diligent prosecution of known claims Provides a date certain for the end of legal liability Duration (WA) Generally, two-to-three years for torts Six years for construction-related activities Tolling Often tolled by discovery or minority status Generally, not tollable (hard outer wall) Status of Right Bars the remedy Extinguishes the underlying right of action For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12. Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts: The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property. The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function. The Polinder Decision In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims. 1. The Integral Systems Requirement  The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose. 2. The Product Seller Exception  While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed. Impact on Asbestos Cases and Defendants The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward: Reliance on Expert Evidence Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate. Evaluating the Contractor's Role Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials. Continued Importance of Proximate Cause For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure. Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026). Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.

On May 27, 2026, Governor Kathy Hochul signed New York's 2026 state budget into law. The $268.1 billion budget includes significant tort reform provisions for New York State motor vehicle litigation. The reforms took effect immediately and apply to all motor vehicle actions commenced on or after the law’s passage, other than accidents resulting in a death or property damage.  I. Shift from Pure to Modified Comparative Negligence in Motor Vehicle Cases The biggest change is to C.P.L.R. § 1411, which has long governed comparative negligence in New York. With the addition of a new subsection "b," New York now moves from a pure to a modified comparative negligence state but just for motor vehicle accident cases. Under a pure comparative negligence system, plaintiffs could recover compensation even if they were predominantly at fault. For example, a party who was 99 percent responsible for an accident could still recover one percent of the total damages. Now, under the new law, a plaintiff who is more at fault (i.e. more than 50 percent) than the other persons involved in a motor vehicle accident cannot recover. In practice, if a jury finds a car accident plaintiff is 51 percent or more at fault, it will not proceed to calculate and award damages.  II. Elimination of the 90/180-Day Serious Injury Category The tort reform also amends subsection (d) of Insurance Law § 5102 to eliminate the so-called "90/180-day" category of serious injury. Under prior law, a plaintiff could satisfy the serious injury “threshold” by demonstrating a medically determined injury of a non-permanent nature that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the 180 days immediately following the accident (e.g. going to work or school). This category faced significant criticism because it often relied on subjective, self-reported information and/or allowed someone who could go to work but didn’t to automatically meet the threshold. III. New Sequencing Requirement: Fault Before Serious Injury Another aspect is that Insurance Law § 5104(a) now requires juries to decide who is at fault for a motor vehicle accident before figuring out whether the serious injury threshold is met. Under the new rules, liability for non-economic loss (i.e., pain and suffering) isn't set until fault is determined. This means that the trier of fact must assign blame first, then assess damages afterward, specifically for non-economic losses. The new sequencing rule has significant strategic effects. Under the updated comparative negligence system for car accident cases, if the jury finds the plaintiff more than 50 percent at fault, they stop right there–no damages awarded. If the plaintiff’s fault does not exceed 50 percent, the jury then considers whether the plaintiff’s injuries satisfy the other requirements in § 5102(d). This makes trials more efficient and keeps juries from letting information about injuries bias their decision when the plaintiff is too fault-prone to recover damages. IV. Recovery Cap for Claimants Engaged in Unlawful Conduct Finally, Insurance Law Section 5104 now includes a new subsection (d). It caps non-economic loss (i.e., pain and suffering) recovery for a motor vehicle accident at $100,000 when the plaintiff is in one of three specific groups (unless the accident results in death): The plaintiff was operating an uninsured motor vehicle in violation of Article 6 of the Vehicle and Traffic Law (with an exception for lapses in coverage of fewer than 30 days). The plaintiff was operating a motor vehicle while impaired and has been convicted of that offense. The plaintiff was operating a motor vehicle in the commission of a felony or in immediate flight afterwards, with a conviction for the same. While the situations described above are thankfully rare, they do occur. The new law will prevent a significant recovery from others by drivers who were uninsured, intoxicated, and/or felons. The authors acknowledge the contributions made by summer staff assistant Christopher DeMicco.

What happens if a personal injury plaintiff files bankruptcy but fails to disclose the personal injury claim in the bankruptcy case? The United States Supreme Court has now resolved a circuit split about how to analyze that question, and it could impact pending claims. In Keathley v. Buddy Ayers Construction, Inc,. the Keathleys were involved in a motor vehicle accident with a Buddy Ayers employee in August 2021. They had an open Chapter 13 repayment plan but did not disclose the claim in the bankruptcy case after the accident occurred or when they filed suit. Buddy Ayers learned of the bankruptcy and moved for summary judgment in March 2023, arguing the Keathleys had taken inconsistent positions—first denying the claim in bankruptcy then later asserting it in the personal injury case. Buddy Ayers argued judicial estoppel barred the Keathleys from pursuing the personal injury claim because they had previously denied it existed in bankruptcy. The district court applied Fifth Circuit precedent and granted summary judgment, which the Fifth Circuit affirmed. The Supreme Court reversed on narrow grounds, finding both lower courts used the wrong standard. Judicial estoppel is an equitable doctrine. “[W]hen a court conducts an equitable inquiry, it must act on a case-by-case basis, considering all relevant facts and circumstances.” Thus, the judgment was reversed and remanded to apply that test to the facts of this case. It gave no opinion as to what might happen when that test is applied. This ruling changes the approach in circuits that previously applied narrower standards. District courts in those areas will now consider more factors, potentially making it harder to prevail on motions like Buddy Ayers filed. Keathley may also reduce some of the disincentives for bankrupt plaintiffs to conceal assets.

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. 

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today.