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Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 31, No. 4, December 2025

December 1, 2025

Carol VanderWoude (Philadelphia, PA) convinced the Commonwealth Court of Pennsylvania to reverse the trial court’s denial of motions for post-trial relief and to direct entry of judgment notwithstanding the verdict (jnov) in favor of Marshall Dennehey’s client. The plaintiff alleged he was injured while standing unsupported on a moving bus. He claimed that he lost his balance when the bus accelerated away from a bus stop and that he grabbed an overhead bar to keep from falling and injured his arm. The video showed only that the plaintiff lost his balance when the bus started moving. At trial, the defense moved for nonsuit and directed verdict, arguing that the evidence was insufficient, particularly in light of the video evidence, to overcome the jerk-and-jolt doctrine applicable to a passenger injured on a moving bus. Submission of a jerk-and-jolt case to a jury requires a sudden stop or jerk so unusual and extraordinary as to be beyond a passenger’s reasonable anticipation. The trial court denied our motions for nonsuit and directed verdict, as well as post-trial motions, having determined that the video evidence presented a jury question under the jerk-and-jolt doctrine. After independently reviewing the video evidence, the Commonwealth Court reversed and granted jnov to the defendant, pointing out that various of the trial court’s observations “were not supported by the video or testimony” adduced at trial. 

Carol and Aaron Moore (Wilmington, DE) obtained the Delaware Supreme Court’s affirmance of the trial court’s dismissal of a complex legal malpractice claim. The plaintiffs, seven affiliated companies and their owners in the business of developing property, had been sued by their bank for defaulting on multiple lines of credit. The bank filed multiple lawsuits against the property developers, claiming approximately $7 million in damages, plus attorneys’ fees, which were recoverable pursuant to the terms of the promissory notes. The property developers retained our client to defend the lawsuits, asserting that the amounts claimed to be owed to the bank were significantly overstated. Our client vigorously defended the bank’s underlying lawsuits. Ultimately, the property developers settled the bank’s lawsuits for the entire amount owed, plus interest, and the bank’s legal fees. The developers argued that its attorneys should have advised them to settle the bank’s claims after the lawsuits were commenced and that, if they had done so, they would not have had to pay the bank’s legal fees ($825,000), our client’s legal fees ($485,000), our expert witness fees ($335,000), or the additional interest on the loan. The property developers also claimed that not settling with the bank earlier caused them lost business opportunities valued at nearly $1 million. The plaintiffs’ legal malpractice claims were dismissed because their expert witness, a Maryland attorney with no business litigation experience, was not qualified to serve as an expert and because their damage claims were speculative.

Kimberly Berman and Matthew Wildner (both of Fort Lauderdale, FL) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final order dismissing claims against Marshall Dennehey’s client, a professional engineer and his engineering firm, in a construction defect case in Florida. The appeal presented an issue of whether a non-supervisory engineer and his firm, who were retained by a third party to examine and inspect a contractor’s work, which third party then told the contractor to stop work, could be held liable for professional negligence. The trial court dismissed the professional negligence claims with prejudice, and without oral argument. The appellate court affirmed. 

Kimberly House (Philadelphia, PA) convinced the Pennsylvania Superior Court to dismiss the plaintiffs’ appeal of a judgment on a defense verdict for our client that was obtained by Allison Krupp (Harrisburg, PA). Our client issued a professional liability insurance policy to the plaintiffs, who were sued for legal malpractice. They notified our client of the suit and asked them to provide counsel to defend the matter. The plaintiffs never agreed to counsel proposed by our client. The plaintiffs then proceeded to mediation in the legal malpractice action and settled the matter without notifying our client. As a result, our client denied the plaintiffs’ request for indemnification. The plaintiffs brought suit for breach of contract and bad faith. In the trial handled by Allision, the jury returned a defense verdict, and the plaintiffs filed post-trial motions, which were denied. On appeal, the plaintiffs argued that the trial court erred in allowing the jury to see a copy of the insurance contract during their deliberations. The Superior Court dismissed the appeal, finding that the plaintiffs waived their argument by failing to cite to relevant legal authority in their appellate brief. The Superior Court also stated in a footnote that, should the court have reached the issue on appeal, it would have found it meritless because the insurance contract was a central piece of evidence to which the plaintiffs did not object during trial. 

Kimberly and Scott Gemberling (both of Philadelphia, PA) successfully defended the plaintiff’s appeal of a trial court decision sustaining a preliminary objection on the ground of improper venue. In the underlying case, the Philadelphia Court of Common Pleas found that venue was improper in Philadelphia County and ordered that the case be transferred to Centre County, and the plaintiff appealed. The Pennsylvania Superior Court, in a precedential decision, affirmed the trial court’s decision and found that there was no abuse of discretion. In support of its decision, the Superior Court found that the plaintiff’s arguments were unsupported by Pennsylvania law. The Superior Court, in finding waiver of an issue, quoted directly from the brief prepared by Kim. 

Audrey Copeland (King of Prussia, PA) obtained the Pennsylvania Commonwealth Court en banc’s affirmance of the grant of summary judgment on remand in favor of our client, which had been obtained by Patricia Monahan (Pittsburgh, PA). The court denied the plaintiff’s (a retiring police officer) claim for unjust enrichment and breach of contract regarding his pension benefits. It was the law of the case from the prior appeal that, although the plaintiff’s employment contract stated that he would be entitled to Act 600 pension benefits, he had an existing Act 15 pension pursuant to an ordinance under the Pennsylvania Municipal Retirement Law and the defendant Borough had never enacted an ordinance to establish an Act 600 pension. The Borough was not unjustly enriched by not providing the plaintiff with such a plan and, too, the Borough did not “fail” to contribute the plaintiff’s pension contributions to a pension plan. The court also upheld denial of the plaintiff’s breach of contract claim. 

Audrey also persuaded the Pennsylvania Superior Court to affirm the trial court’s transfer of venue from Philadelphia County to York County obtained by her and Edward McGinn (King of Prussia, PA) for our client. The court had found that our client had no Philadelphia presence, customers, or sales and was in the business of processing and packaging canned and frozen vegetables. The Superior Court found that importing raw vegetable material through the Port of Philadelphia and the use of third-party vendors to carry out the importation and transportation was analogous to the purchase of supplies and did not meet the standard of “regularly conducting business.” Venue was also not proper merely because the defendant’s products were offered for sale in Philadelphia stores. 

Audrey and Suzanne Utke (Philadelphia, PA) obtained the dismissal of the plaintiff’s appeal of judgment in favor of Marshall Dennehey’s client as the plaintiff and his attorney failed to file post-trial motions after the defense verdict. Therefore, they had waived all issues for appeal. 

John Hare and Shane Haselbarth (both of Philadelphia, PA) conduced a successful oral argument before the Supreme Court of Pennsylvania that resulted in the Court’s unanimous ruling to uphold statutory employer immunity on Pennsylvania construction sites. The six Justices who voted rejected the plaintiff’s arguments that such immunity should be overturned as antiquated and should be deemed waivable. Read more about this case in The Legal Intelligencer. 

*Results do not guarantee a similar result. 

Defense Digest, Vol. 31, No. 4, December 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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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.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case