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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

Thought Leadership

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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

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.