Eric A. Fitzgerald CPCU, CLU
Philadelphia, PA 19103
Eric is the chair of Marshall Dennehey's Insurance Coverage/Bad Faith Litigation Practice Group. The group consists of 22 attorneys exclusively providing general counsel and litigation of insurance coverage disputes. Members practice out of six offices throughout Pennsylvania, New Jersey and Florida.
Eric works with a wide variety of property/casualty lines, including: professional and miscellaneous errors & omissions; directors & officers; employer practices liability; law enforcement liability; commercial general liability; commercial property, excess and umbrella; specialty lines; boiler & machinery; inland marine; builders risk; owner controlled insurance programs, garage keepers; commercial auto; personal auto and homeowner's. He also handles workers' compensation and employers' liability policies and reinsurance.
As a coverage litigator, he has handled many different coverage issues, including: construction defect; intellectual property; notice of claim, relation back and prior/pending exclusions in claims made policies; environmental; civil rights; mold; product defect; liquor liability; additional insureds; policy reformation and application fraud cases.
Critical to his practice of serving the insurance industry, Eric obtained his Chartered Property Casualty Underwriter (CPCU) designation in 1999 and his Associate in Reinsurance (ARe) designation in 2000. He recently completed three years' service as a national governor and member of the Executive Committee of the CPCU Society and is currently a member of the Nominating Committee. He is also a member of the Claims Committee and is active in the Philadelphia and Northeastern Pennsylvania Chapters. He is also a member of the American Institute for CPCU Advisory Council.
He previously served as second vice president, programs chair and publicity chair for the CPCU Society Philadelphia Chapter. He remains active in the Philadelphia and Northeast Pennsylvania CPCU Chapters. He began his National CPCU Service as the Northeast Regional New Designee Representative and as the editor of the Excess, Surplus and Specialty Lines Section Newsletter, The Specialist. He is also a CPCU course instructor.
Eric is also the chair of Marshall Dennehey's Life, Health and Disability Practice Group. He is a member of the Defense Research Institute (DRI) and participates in the Life, Health and Disability Section. In 2011 Eric obtained his Chartered Life Underwriter (CLU) designation.
Prior to joining Marshall Dennehey, Eric practiced in Rochester, New York, where he provided statewide New York coverage counsel for several large national insurers. He began his career as a judicial clerk for the New York State Supreme Court, Appellate Division, Fourth Department, where he participated in the drafting of many significant coverage decisions in New York State.
He is a former member of the board of directors of the Rochester, New York, CPCU Chapter. He served as secretary of the board of directors for the Monroe County Bar Association Foundation in 1999-2000 and was the chair of the Monroe County Bar Association Young Lawyers Section in 1996.
Significant Representative Matters
Trial verdict for insurer in a matter regarding the reformation of a complex insurance program for a holding company with over 200 subsidiaries. Case involved testimony from senior officers from the insured corporation and the insurer and broker. Policy was reformed on behalf of the insurer to add a subsidiary and, therefore, subject to an exclusion for negligent operation of vehicle in the course of employee's duties for the employer.
Trial verdict for insurer on "assault and battery" exclusion. Court applied exclusion and found no duty to defend or indemnify after denying summary judgment earlier in the case. Decision upheld on appeal to the Pennsylvania Superior Court.
Summary judgment for insurer in a matter involving the alleged faulty construction and site selection for a multi-million dollar mining project. Court held that the insured engineer's work was not an "occurrence" and fell within the policy exclusions for professional services and work product of the insured. Court further rejected attempts by insured counsel to apply a continuous trigger theory of causation in a property damage case and held that the claim manifested prior to the inception of the policy.
Summary judgment for insurer applying "interrelated businesses" exclusion in a directors & officers' liability claim. Court held that criminal "check kiting scheme" by necessity utilized the checking accounts of an uninsured business as well as the insured business and triggered the exclusion as a matter of law.
Summary judgment for insurer on issue of whether plaintiff was a dual employee of two affiliated corporations and subject to "employers liability" exclusion. After reviewing factual testimony from company officers, Court agreed that insured company was a dual employer of the plaintiff although his W-2s and employment file were with an affiliated company.
Summary judgment for insurer enforcing insured's UIM stacking waiver. Court found that the statute requiring issuance of an "important notice" did not provide a statutory remedy for an insurer's failure to issue the notice and that the waiver was, therefore, valid despite statutory violation.
Summary judgment for insurer finding no ambiguity in blank retroactive date on claims made policy. Court applied regulation defining retroactive date to hold that a blank date equated inception date, not full prior acts.
Judgment on the pleadings for insurer on duty to indemnify real estate appraiser in "sub prime" litigation complaint. The Court held that the allegations of fraud and conspiracy were not negligent wrongful acts under the professional liability policy.
Areas of Practice
Published Works
"Co-Author: Commonly Litigated Coverage Issues Involving Personal Automobile Policies," Insurance Law Handbook, New York State Bar Association, 2000
"Infant Switch Spotlights Risk at Hospitals," National Underwriter, October 5, 1998
"Contributing Author: Procedural Issues Unique to a Product Liability Lawsuit (Supplement)," Products Liability in New York - Strategies and Practice, 1999
Contributing Author: "Strategies and Tactics in the Wake of Tort Reform (Supplement), Preparing for and Trying the Civil Lawsuit," 1999
Classes/Seminars Taught
Additional Insureds and Related Issues
Professional Services Exclusions
Best Practices in Maintaining Claims Files
Coverage Issues Arising out of Faulty Workmanship Claims
Coverage Issues Arising out of Employers Liability Coverages
Coverage Issues Arising out of Municipal Professional Liability Policies
Cross-over Uninsured/Underinsured Motorists Claims in PA and NY
Negotiation Techniques
Priority of Coverage in Rental Vehicle Claims
Intentional Acts/Occurrence
Course Instructor - CPCU 6 "The Legal Environment of Insurance"
Education
University at Buffalo Law School, Buffalo, New York, 1993 J.D.
University of Rochester, 1989 B.A.
Honors: cum laude
Past Employment Positions
New York State Supreme Court Appellate Division, Fourth Department, Judicial Clerk, 1993 - 1995
Saperston & Day, P.C., Coverage Attorney, 1995 - 2000
Areas of Practice
Education
- University of Rochester (B.A., cum laude, 1989)
- University at Buffalo Law School (J.D., 1993)
Bar Admissions
- New York, 1994
- Pennsylvania, 1994
- U.S District Court Eastern District of Pennsylvania
- U.S. District Court Middle District of Pennsylvania
- U.S District Court Western District of Pennsylvania
- U.S. District Court Western District of New York
- U.S. Court of Appeals 3rd Circuit
Associations & Memberships
- CPCU National Nominating Committee
- CPCU Society, Philadelphia Chapter
- Defense Research Institute
- Northeastern Pennsylvania Chapter
Honors & Awards
- AV® Preeminent™ by LexisNexis Martindale-Hubbell
- Buffalo Moot Court Board
- Claims & Litigation Management Alliance