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Andrew J. Marchese

Chair, Non-Profit D&O Practice Group

AJMarchese@mdwcg.com

Portrait of Andrew J. Marchese

Andrew brings a distinct combination of litigation skills to his practice, developed during his legal career in South Florida. He represents various individuals, private and public companies, and non-profit entities in a broad range of business matters. Board Certified in Condominium and Planned Development law by The Florida Bar, Andrew has represented hundreds of condominium associations, homeowners associations, directors, officers and property managers in claims ranging from breach of fiduciary duty, breach of the declaration, real estate liens, real property document disputes, Fair Housing Act (FHA) and HUD claims, including reasonable accommodation claims by unit owners and visitors, and discrimination claims of every type. His extensive directors & officers practice has given him significant experience with all types of claims in this arena. 

Andrew's practice also consists of complex litigation with an emphasis on the defense of non-medical professionals, including attorneys, directors and officers, insurance brokers and title agents, architects and engineers, design professionals, general contractors, construction managers and subcontractors, against claims of liability, breach of contract, construction defect, design defect, delay, insurance coverage issues and licensure issues. 

Additionally, Andrew represents employers in litigation and provides them advice and counsel concerning a variety of employment-related matters. Andrew has handled the defense of employment law cases in federal and state courts and before various administrative agencies. He has defended employers in claims alleging discrimination, violation of federal and state employment-related statutes, wrongful discharge, breach of contract and related tort claims. Andrew also has experience with ADA public accommodation cases. 

In 1990, Andrew graduated from the University of Maryland (College Park) where he received his Bachelor of Arts Degree in Criminal Justice/Pre-Law. He then went onto obtain his juris doctor from The Thomas M. Cooley School of Law (cum laude), graduating in the top ten percent of his class.

    • Cooley Law School (J.D., cum laude, 1995)
    • University of Maryland (B.A., 1990)
    • Florida, 1995
    • U.S. District Court Southern District of Florida, 1996
    • U.S. District Court Middle District of Florida, 1998
    • The Florida Bar, Board Certified in Condominium and Planned Development
    • Aviation Insurance Association
    • Dade County Bar Association
    • The Association of Trial Lawyers of America
    • Community Associations - Exposures Close to Home, Marshall Dennehey Client Presentation, September, 2020
    • Contemporary Litigation Issues for the Claims Professional, Marshall Dennehey Client Presentation, September 21, 2015
    • “Article III Standing Does Not Come from Violation of Statute Alone,” Defense Digest, Vol. 28, No. 12, December 2022
    • "Florida Appeal Court Finds Assignment of Legal Malpractice Claim Permissible in Commercial Setting," PLUS Magazine, October 2006

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Legal Updates for Real Estate E&O Liability

The Listing Agreement Controls in Real Estate Commission Dispute Between Broker and Seller

May 7, 2026

Carmona Realty Group, LLC, a licensed real estate broker, pursued a commission after procuring multiple offers at or above the listing price for a Miami property, but the seller repeatedly rejected or ignored those offers while attempting to increase the price outside the written listing agreement. The parties had executed an exclusive right of sale listing agreement setting the price at $499,500 and providing for a 5% commission. Although the seller later signed separate “instructions to agents” imposing additional requirements such as appraisal contingencies, inspection attachments, and deposit conditions, those instructions were never signed by the broker and were not referenced in the listing agreement. After at least seven offers were presented, including full-price or above-list offers, the seller declined to proceed, citing varying reasons including furniture inclusion, shutters, and financing terms, while also informally seeking a higher price. The Third District Court of Appeal reversed the trial court’s ruling in favor of the seller, holding that the “instructions to agents” were not incorporated into the listing agreement and could not be used to defeat the broker’s entitlement to a commission. Applying Florida contract principles and the statute of frauds, the court emphasized that modifications to a listing agreement must be in writing and signed by both parties, and that mere contemporaneous documents lacking mutual assent and cross-reference do not become part of the contract. The court further found that the broker satisfied its obligation by producing ready, willing, and able buyers on the agreed terms, and that the seller’s later-asserted justifications did not negate the broker’s right to compensation. This decision underscores the importance of real estate brokers and professionals ensuring that all material terms and conditions are clearly incorporated into the listing agreement itself, as well as documenting all communications when sellers reject conforming offers for reasons outside the contract.

Legal Updates for Insurance Agents & Brokers

Legal Update for Insurance Agents & Brokers – CASE LAW UPDATE

August 1, 2025

Federal Court Applies Blumberg to Distinguish Accrual of Negligence and Fiduciary Claims in Insurance Agent Dispute Romero v. Kinsale Ins. Co., No. 25-20084-CIV, 2025 WL 837820 (S.D. Fla. Mar. 18, 2025) In a recent decision, the U.S. District Court for the Southern District of Florida revisited the Florida Supreme Court’s 2002 ruling in Blumberg v. USAA Casualty Insurance Co., 790 So. 2d 1061 (Fla. 2002), to assess whether claims against a non-diverse insurance agent defendant were fraudulently joined. The district court distinguished between negligence and breach of fiduciary duty claims based on whether the plaintiff’s alleged damages had accrued independently of a pending coverage dispute. While the negligence claim was deemed premature and contingent on a future denial of insurance coverage, the breach of fiduciary duty claim was found to assert immediate and independent harm. As a result, the court concluded that the joinder was not fraudulent and granted the motion to remand the case to state court. The dispute in Blumberg concerned stolen sports cards, and the insured sued his agent for negligence in procuring a policy that did not cover the loss of the cards. In 2002, the court reasoned that, because the insured alleged his agent caused him no damages other than the amount at stake in his coverage dispute, he could only incur damages, if ever, at the conclusion of the coverage dispute—or once his right to sue the insurer expired.  Since 2002, Florida courts have held that when an insured alleges that an agent caused damages that are independent of a coverage dispute, the claim against the agent accrues immediately, even if the ultimate and full extent of the damages remains uncertain. In Romero v. Kinsale, the plaintiff sued for breach of fiduciary duty and negligence after allegedly tripping on an uneven sidewalk at a construction site. District Judge Altonaga analyzed the issue of whether a resident (non-diverse) defendant was fraudulently joined. If fraudulently joined, the federal court would dismiss the non-diverse defendant and deny any motion to remand the matter back to state court.  Joinder is fraudulent where there is no possibility that the plaintiff can prove a cause of action against the non-diverse defendant. In Judge Altonaga’s analysis, she held that the plaintiff’s negligence claim—which entirely hinged on the plaintiff’s assertion that she might lose a coverage dispute—had not yet accrued. Therefore, the negligence claim, on its own, could not stand.  However, in analyzing the breach of fiduciary duty allegations, Judge Altonaga ruled that, since the breach of fiduciary duty claim contained no conditional language tying liability to denial of coverage, the allegation is that there was immediate harm at the time the policy was procured. This allegation of immediate harm, independent of coverage, meant the breach of fiduciary claim was a potentially viable claim with ripe damages that had accrued.  Thus, Judge Altonaga held that there was no fraudulent joinder because there was at least a possibility that a Florida court could find an independent cause of action against the resident defendant. The judge ultimately granted the motion to remand the case back to state court.    Legal Update for Insurance Agents & Brokers- August 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case