Melissa Murphy-Petros is co-chair of Wilson Elser's Appellate practice. She has concentrated solely on appellate law and procedure throughout her career, and has litigated hundreds of appeals in state and federal reviewing courts across the country. The national scope of Melissa's practice and her depth of experience in post-trial and appellate litigation not only benefit the firm's existing engagements, but also are frequently leveraged in appeals of cases tried by other firms.
Licensed in both Illinois and New York, Melissa has successfully prosecuted appeals before the Illinois Supreme Court and the New York Court of Appeals, both states' highest courts. Her work spans a variety of Wilson Elser's practice areas, with particular emphasis on liability and property insurance coverage, commercial litigation, and casualty defense.
Melissa also acts as trial monitoring counsel in high-exposure cases. As part of this practice, she partners with trial counsel both inside and outside Wilson Elser to prepare dispositive pre-trial motions, motions in limine, motions for directed verdict, jury instructions, verdict forms and post-trial motions. She also assists in the development of overall trial strategy to ensure that error is preserved and that the appeal is properly postured.
Melissa is a member of the Illinois Appellate Lawyers Association and the Defense Research Institute's Appellate Advocacy Committee and Amicus Subcommittee. She is a former member by appointment of the New York State Bar Association's Committee on Courts of Appellate Jurisdiction. Melissa is a frequent author and CLE lecturer on appellate practice and other litigation topics, and has taught advanced legal research and writing at John Marshall Law School in Chicago.
· Representative Matters
Americans with Disabilities Act (ADA)
Theatre Mgmt. Group, Inc. v. Dalgliesh, 765 A.2d 986 (D.C. 2001): Question of first impression; use of violation of Americans with Disabilities Act as evidence of negligence in premises liability suit.
Appellate Procedure/Commercial Liability Insurance Coverage
Norris v. National Union Fire Ins. Co. of Pittsburgh, Pa., 857 N.E.2d 859 (Ill. App. 2006), petition for leave to appeal denied, 862 N.E.2d 235 (Ill. 2007): Two questions of first impression; palpable error exception to doctrine of law of the case and liability of employer's commercial trucking insurer to employee's estate for both uninsured motorist and workers compensation benefits.
Casualty Defense/Workplace Injury
Whylie v. ConEd, 911 N.Y.S. 2d 923 (N.Y. App. 2010): Summary judgment for ConEd affirmed on insufficient evidence of proximate causation; plaintiff nurse working in a ConEd mobile x-ray clinic was exposed to a large quantity of accidentally spilled x-ray chemicals and claimed numerous resulting injuries.
Wilfong v. L.J. Dodd Construction Co., 930 N.E.2d 511 (Ill. App. 2010), petition for leave to appeal denied, 938 N.E.2d 532 (Ill. 2010): Question of first impression; pedestrian invitee may not invoke distraction exception to open and obvious rule when he creates distraction by talking on cell phone while walking across premises.
Brooks v. Judlau Contracting, Inc., 869 N.Y.S. 2d 366 (N.Y. 2008): Question of first impression; partial contractual indemnification provisions between general and subcontractors on construction projects are valid and enforceable under General Obligations Law §5-322.1.
Cameron v. Merisel Properties, Inc., 652 S.E.2d 660 (N.C. App. 2007): Question of first impression; mold exposure.
Wilson v. City of New York, et al., 775 N.Y.S.2d 527 (N.Y. App. 2004): Workplace injury - lead paint exposure at Grand Central Terminal renovation; negligent supervision.
Milne v. Loyal Order of Moose Lodge No. 168, 755 N.Y.S.2d 632 (N.Y. App. 2003): Workplace injury - fracture; obtained 65 percent reduction in jury-awarded damages.
Martishius v. Carolco Studios, Inc., 542 S.E.2d 303 (N.C. App. 2001): Workplace injury - electrocution; contributory negligence.
Doe v. University of Chicago, et al., 2011 WL 6382066 (Ill. App. 2011): Question of first impression; the service of alcohol, without more, does not constitute "personal encouragement or assistance" of an act of gender-related violence for purposes of civil liability under the Illinois Gender Violence Act.
Martinez v. City of New York, et al., 2011 WL 6225159 (N.Y. App. 2011): Denial of summary judgment to defendant school nurse reversed and wrongful death action dismissed; school nurse's duty of care to 10-year-old decedent who died at home from effects of an asthma attack that began at school ended when child's mother picked him up from school and took complete custody of him.
Schlindwein v. Carlson Hotels Management, et al., unpublished, No. 3-10-0213 (Ill. App. 2011): Summary judgment for hotel affirmed; injury incurred when plaintiff tripped over bed frame does not invoke four-year construction statute of limitations even though bed was placed in room as part of extensive hotel renovation because placement of furniture in a building is not an improvement to real property.
Devecchis v. City of Chicago, unpublished, No. 1-09-2066 (Ill. App. 2011): Summary judgment for Gibson's Steakhouse, a prominent Chicago restaurant, affirmed because Gibson's did not appropriate either Rush Street in Chicago or the sidewalk in front of its entry such that it could be liable for the sidewalk condition that allegedly caused plaintiff's injury.
Faust v. Albertson, 178 P.3d 358 (Wash. App. 2008): Dram shop liability; $14 million jury verdict reversed and judgment entered for defendants as matter of law; no evidence of drunk driver's "apparent intoxication" at time of alleged over-service of alcohol.
Gibbs v. Port Authority of New York and Madison Square Garden, 794 N.Y.S.2d 320 (N.Y. App. 2005): Obtained dismissal of entire case with $2 million claimed damages; licensee not occupier of premises.
Elliott v. Long Island Home, et al., 784 N.Y.S.2d 615 (N.Y. App. 2004): Wrongful death; no proximate cause.
Seegars v. Brunswick Yonkers Bowl, 2003 WL 355435 and 2002 WL 243305 (N.Y. App. 2003): Obtained dismissal of entire case with $1 million claimed damages; assumption of risk; open and obvious condition.
Turner v. Williams, 762 N.E.2d 70 (Ill. App. 2001): Multimillion-dollar personal injury jury verdict reversed.
Godino v. Madison Square Garden, 708 N.Y.S.2d 102 (N.Y. App. 2000): Constructive notice.
Visconti v. 110 Huntington Associates, L.P., 707 N.Y.S.2d 884 (N.Y. App. 2000): Assumption of risk.
Moriello v. Stormville Airport Antique Show & Flea Market, Inc., 706 N.Y.S.2d 463 (N.Y. App. 2000): Open and obvious condition.
Bezozo v. Town of Hempstead, 686 N.Y.S.2d 489 (N.Y. App. 1999): Assumption of risk.
Yager v. Adler, 686 N.Y.S.2d 33 (N.Y. App. 1999): Premises liability; no evidence of defendant's involvement in plaintiff's injury.
Civil Procedure/Product Liability
Dickie v. Cannondale Corp., 905 N.E.2d 888 (Ill. App. 2009), petition for leave to appeal denied, 904 N.E.2d 979 (Ill. 2009): Scope of stream of commerce test for asserting personal jurisdiction over a foreign corporation in a product liability action.
Saia v. Scripto-Tokai Corp., 851 N.E.2d 693 (Ill. App. 2006), reh'g denied (Ill. App. 2006), petition for leave to appeal denied, 861 N.E.2d 664 (Ill. 2006), pet. for writ of cert. denied, Tokai Corp. v. Saia, et al., 127 S.Ct. 2252 (U.S. 2007): Scope of stream of commerce test for asserting personal jurisdiction over a foreign corporation in a product liability action.
Hergan v. Pawlan Law, LLC, et al., 2013 IL App (1st) 113812-U (dismissal of legal malpractice complaint on the basis of "same cause pending" affirmed).
Ghilarducci v. Forrest, unpublished, No. 1-10-0596 (Ill. App. 2011): Complaint filed after voluntary non-suit properly dismissed on res judicata grounds where two counts of plaintiff's initial complaint were dismissed on the merits, he voluntarily dismissed the third count, and the third count was the only claim alleged in the re-filed complaint.
McMillian v. Sheraton Chicago Hotel & Towers, 567 F. 3d 839 (7th Cir. 2009): Dismissal of personal injury action affirmed; plaintiffs failed to establish damages at or exceeding jurisdictional requirement of $75,000 per plaintiff.
Peniston v. Epstein, 780 N.Y.S.2d 916 (N.Y. App. 2004): Medical malpractice; vacation of technical default against defendant doctor affirmed.
Commercial Liability Insurance Coverage
Admiral Insurance Co. v. PIF High Yield Fund II, unpublished, No. 10-15830 (9th Cir. 2011): Insurer's rescission of directors and officers liability policy based upon insured's material misrepresentations on the policy application affirmed; stipulated loss of $4.4 million.
Preferred Mutual Ins. Co. v. New York Fire-Shield, 880 N.Y.S.2d 744 (N.Y. App. 2009): Summary judgment to insured on late notice defense reversed and remanded for trial.
Hytko v. Hennessy, 879 N.Y.S.2d 595 (N.Y. App. 2009): Question of first impression; physicians' professional liability carrier prohibited from obtaining common law indemnification from nurse's professional liability carrier by the doctrine of unclean hands.
Essex Ins. Co. v. Young, 796 N.Y.S.2d 204 (N.Y. App. 2005): Assault and battery exclusion.
Venture Encoding Service, Inc. v. Atlantic Mutual Ins. Co., 107 S.W.3d 729 (Tex. App. 2003): Printers liability coverage.
Atlantic Mutual Ins. Co. v. Terk Technologies Corp., 763 N.Y.S.2d 56 (N.Y. App. 2003): Advertising injury.
Centereach Realty, LLC v. Essex Ins. Co., 759 N.Y.S.2d 664 (N.Y. App. 2003): Insurer's timely disclaimer of coverage.
Commercial Property Insurance Coverage
Board of Educ. of Tp. High School Dist. No. 211 v. TIG Ins. Co., 881 N.E.2d 957 (Ill. App. 2007), reh'g denied, 2008 Ill. App. LEXIS 119 (Ill. App. Jan. 24, 2008): Notice of loss provision; insured's eight-year delay in notifying carrier of $25 million spent on asbestos abatement violated notice of loss provision and vitiated coverage.
Ocean Partners, LLC v. North River Ins. Co., 810 N.Y.S.2d 430 (N.Y. App. 2006): Notice of loss provision.
Canadian Imperial Bank of Commerce v. Commonwealth Ins. Co., 797 N.Y.S.2d 449 (N.Y. App. 2005): $35 million business interruption claim; September 11 loss.
D.R. Watson Holdings, LLC v. Caliber One Indem. Co., 789 N.Y.S.2d 787 (N.Y. App. 2005): Wear-and-tear and faulty/defective maintenance exclusions; obtained 58 percent reduction in jury-awarded damages.
AZ Land Trust v. Transcontinental Ins. Co., unpublished, No. 3-05-0013 (Ill. App. 2005): Effect of policy renewal on inflation guard provision.
LDLJ Associates, et al. v. Fireman's Fund Ins. Co., unpublished, No. A-1649-03T1 (N.J. App. 2005): Sinkhole exclusion.
Chatham Corp. v. Dann Ins., 812 N.E.2d 483 (Ill. App. 2004): Question of first impression; extra expense coverage.
Wal-Mart Stores v. U.S.F. &G., 784 N.Y.S.2d 25 (N.Y. App. 2004): $11 million claim; suit limitation provision; res judicata effect of additional insured's prior lawsuit against carrier.
Armstrong v. Caliber One Ind. Co., 772 N.Y.S.2d 828 (N.Y. App. 2004): Insured's material misrepresentations on fire policy application; standard mortgagee clause.
Tacoma Electric Supply, Inc. v. Atlantic Mutual Ins. Co., 40 Fed. Appx. 567, 2002 WL 1378934 (9th Cir. 2002): Earth movement exclusion.
Fairlawn Industries, Ltd. v. Gerling America Ins. Co., 775 A.2d 744 (N.J. App. 2001): Insured premises description.
National Union Fire Ins. Co. v. Country Wide Truck Svcs., Inc., 696 N.Y.S.2d 915 (N.Y. App. 1999): Employee theft exclusion.
Directors and Officers Liability Insurance Coverage
Ascent Media Group, LLC v. Those Interested Underwriters at Lloyd's, unpublished, No. B199042 (Cal. App. 2008): Strict construction of wrongful termination exception to "assured vs. assured" exclusion; summary judgment for carrier affirmed.
North Shore Towers Apartments, Inc. v. Zurich Ins. Co., 691 N.Y.S.2d 327 (N.Y. App. 1999): Subpoenas for expert depositions properly quashed.
Employment Law/Title VII
Robinson v. Sappington, 351 F.3d 317 (7th Cir. 2003), pet for cert denied, 124 S.Ct. 2902 (2004): Title VII, sexual harassment; defendant was an Illinois state court judge at the time of the alleged harassment.
Federal Fair Debt Collection Practices Defense
Berman v. G.C. Services Ltd. Partnership, 146 F.3d 482 (7th Cir. 1998): Question of first impression; FDCPA does not apply to debt collector's efforts to collect delinquent unemployment insurance contributions.
Jang v. A.M. Miller & Assoc., 122 F.3d 480 (7th Cir. 1997): Question of first impression; debt collector not required to provide debt validation when requested so long as all collection activities cease after validation request.
American General Life Ins. Co. v. Shenkman, Nos. 10-3541 and 10-3640 (3rd Cir. 2011): Time limit provision of life insurance policy's suicide exclusion not ambiguous.
Sadigh v. Stoughton Trailers, LLC, et al., unpublished, No. 1-08-0150 (Ill. App. 2009): Manufacturer of semi-trailer did not have a duty under Illinois common law to install side under-ride guards on trailer.
Professional Liability Defense
Kroner v. Deer & Stone, unpublished, No. 1-10-1444 (Ill. App. 2011): Attorney malpractice; alleged actual damages too speculative to support a cause of action.
Redmond v. Kogen, unpublished, No. 2-09-0928 (Ill. App. 2010): Attorney malpractice; no proximate cause.
Soscia v. Soscia, 829 N.Y.S.2d 543 (N.Y. App. 2006): Attorney malpractice; breach of contract.
Vittetoe-Patrick v. Peterson, unpublished, No. 1-03-2571 (Ill. App. 2005): Medical malpractice; abdominal surgery and post-operative infection; jury verdict for defendant surgeon affirmed.
Shapo v. Terrizzi, unpublished, No. 1-99-4157 (Ill. App. 2002): Medical malpractice; alleged delay in diagnosis; jury verdict for defendant pediatrician affirmed.
Ke v. Hsu & Associates, 752 N.Y.S.2d 42 (N.Y. App. 2002): Engineering firm; no proximate cause.
Clark v. Children's Memorial Hospital, 2011 WL 1733532 (Ill. 2011): Represented amicus curiae Fertility Centers of Illinois; wrongful birth plaintiff parents may not recover expenses incurred for the care and support of their disabled child beyond the child's age of majority.
Johnson v. Health Port, et al., unpublished, No. 1-10-0399 (Ill. App. 2011): Privacy torts; medical records consultant's inadvertent release of plaintiff's records does not support a claim for intrusion upon seclusion; claim for publication of private facts time-barred by one-year statute of limitations applicable to privacy claims.
Green v. Rogers, 917 N.E.2d 450 (Ill. 2009): Question of first impression; claims for defamation per se must be pled with the same particularity as fraud claims.
Goldberg v. Moskowitz, 691 N.Y.S.2d 447 (N.Y. App. 1999): Fraud, breach of fiduciary duty.
Memberships & Affiliations
Illinois Appellate Lawyers Association
New York State Bar Association
Defense Research Institute (DRI), Appellate Advocacy Committee and Amicus Subcommittee
Claims & Litigation Management Alliance (CLM)