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Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 29, No. 3, September 2023

September 1, 2023

Kimberly Berman (Fort Lauderdale, FL), Joanne Nachio (Fort Lauderdale, FL) and Amanda Podlucky (Orlando, FL) succeeded in obtaining a per curiam affirmance by the Sixth District Court of Appeal of a motion for summary judgment entered in favor of a rental manager. In granting summary judgment, the trial court found that the rental manager, which did not own the premises, did not owe the plaintiff a non-delegable duty and had no duty to maintain the exterior of the premises, pursuant to the owner agreement with the homeowner. The trial court also found that the guest failed to establish any genuine issue as to any material fact regarding an insufficiency or issue with the operation of the lighting of the porch on the property that would give rise to a breach of any possible duty. The court also provisionally granted the rental manager attorney’s fees upon the determination of the trial court at the conclusion of the case, pursuant to a proposal for settlement. Janice Dillard v. VHC Hospitality LLC d/b/a Vacation Home Collection, Luciana Pinto, and Terra Resort Villa Homeowners Association Inc., 2023 WL 3476507 (Fla. 6th DCA May 16, 2023). 

Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the decisions of the Pennsylvania Workers’ Compensation Appeal Board and the Workers’ Compensation Judge in a matter denying the claimant’s request for reimbursement for the purchase of an entirely new residence by her parents to accommodate her work injury of paraplegia. Davies v. All My Children (WCAB), 1244 CD 2021 (Pa. Cmwlth. April 26, 2023). 

Audrey also obtained an affirmance from the Commonwealth Court of the Appeal Board’s order that affirmed the Workers’ Compensation Judge’s grant of the employer’s modification petition. The claimant had not established that the IRE was unconstitutional or that the IRE from the employer’s IRE physician was defective or that his testimony was incompetent. It was for the Workers’ Compensation Judge to weigh the evidence and credit the employer’s IRE over that of claimant’s IRE physician. Jay T. Tedesco v. Kane Freight Lines, Inc. (WCAB), 2023 WL 3561399 (Pa. Cmwlth. May 19, 2023). 

The Pennsylvania Superior Court accepted an appeal by permission at Audrey’s request and held in favor of our client, a non-profit continuing care retirement community, that it was error to dismiss additional defendants joined by our client to litigation that had been in progress for over two years. Joinder of additional defendants is permitted by Pennsylvania Rule of Civil Procedure 2253 within 60 days of the filing of a complaint or amended complaint, regardless of prejudice to the joined defendant. Aciavatti v. White Horse Village, Inc., 2023 WL 4346814 (Pa. Super. July 5, 2023).

Audrey and Michele Punturi (Philadelphia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge granting a petition to terminate benefits in favor of the firm’s client, the employer. The court found the Board did not err by affirming the judge’s finding that the employer established a change in the claimant’s medical condition, as the judge did not solely rely on the claimant’s testimony, but had credited the testimony of the employer’s medical expert of claimant’s full recovery. Cannon v. General Motors, 1089 C.D. 2022 (Pa. Cmwlth. August 23, 2023). 
 
Audrey and Andrea Rock (Philadelphia, PA) obtained a favorable decision for the firm’s client from the Commonwealth Court, which affirmed the Appeal Board’s order upholding the judge’s decision denying a claim petition. The court rejected the claimant’s argument that the judge’s decision did not meet the “reasoned decision” requirement of Section 422(a) of the Pennsylvania Workers’ Compensation Act and that the claim petition should be granted for at least a limited period. The court agreed with Audrey and Andrea that the judge did not arbitrarily and capriciously disregard the employer’s medical witness’ testimony, that the claimant had sustained a low back strain and sprain which had resolved at the time of his IME. The court observed that the judge discredited the claimant's testimony and rejected the existence of any work-related injury, and that the employer’s expert’s opinion was based on the false history provided by the claimant, which did not constitute an admission or competent evidence that a work-related injury occurred. Vazquez v. Arthur Jackson Co., 536 C.D. 2022 (Pa. Cmwlth. Aug. 4, 2023).

*Results do not guarantee a similar result.
 

 

Defense Digest, Vol. 29, No. 3, September 2023, 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. © 2023 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.

Firm Highlights

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

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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

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Result

Summary Judgment Obtained in Insurance Coverage Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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.

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.