Appellate Advocacy & Post-Trial Practice

Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining reversal of a non-final order that granted leave to amend to an estate to assert a claim for punitive damages and gross negligence against a dive captain, dive master, and the corporate-entity, dive companies. A woman drowned while scuba diving on a chartered tour, after which the toxicology report revealed high levels of illicit drugs and alcohol. During the litigation, her estate moved for leave to amend to add a claim for gross negligence and punitive damages, claiming the defendants were grossly negligent for failing to use the buddy system and for allowing the decedent to dive when they knew or should have known she was intoxicated. The estate also claimed gross negligence for the dive master allowing the decedent out of his eyesight for four to ten minutes during the dive despite having identified the decedent as requiring “special assistance.” In support of the motion, the estate relied on the police statements, deposition testimony, and an expert report. The defendants argued the evidence was insufficient to support the amendment and that none of the witnesses knew that the decedent was intoxicated before the dive. At the hearing, the trial judge noted the standard was “very liberal” and refused to consider the defendants evidentiary arguments because it “put the cart before the horse.” In granting the motion, the trial court did not make an affirmative finding that the estate had made a reasonable showing by evidence which would provide a reasonable evidentiary basis to recover punitive damages. On appeal, the Fourth District Court of Appeal agreed with our arguments and reversed on several grounds. The court found that: the trial court applied the wrong legal standard; the estate failed to present sufficient evidence to establish a reasonable basis for recovery of punitive damages against the dive captain and dive master; and the estate’s proposed, amended complaint did not properly allege a claim against the corporate entity defendants. Thus, the order for leave to amend was reversed. 

David Blake and Walter Kawalec (both of Mount Laurel, NJ) successfully overturned a $1.8 million judgment on appeal in a case that involved the Laidlow exclusion in a workers’ compensation/employers liability policy. The decedent succumbed to heat exhaustion while at work, and the plaintiff alleged the death was due to working conditions the employer knew were substantially certain to lead to injury. The plaintiff filed suit in the Superior Court, alleging both negligence and intentional torts. Our client, the insurer, offered to defend the employer, but only to the extent of obtaining dismissal of the workers’ compensation claim, which had been filed in the wrong forum. The insured rejected the offer, and suit for the injury and coverage claims commenced. At summary judgment, the trial court refused to apply the policy s clear and prominent Laidlow exclusion, which would have barred all coverage for claims in the Superior Court whether alleged as negligent or intentional. The trial court entered judgment in the amount of the arbitration award and awarded defense costs for the Laidlow suit, costs of the declaratory judgment action and interest. The matter went up on appeal. After briefing, but before argument, the New Jersey Supreme Court released the Rodriguez decision, which validated our client s position on application of the Laidlow exclusion and went even further to hold that the employer’s liability carrier has no obligation to provide a defense for the common law negligence claims filed in the Superior Court. The Rodriguez decision was unpublished and at the appellate level, while our case was at the trial level. The trial court refused to apply the principles enunciated by the Appellate Division in the Rodriguez decision and refused to apply the reasoning of a second unpublished appellate court decision directly on point. The trial court simply ignored the cases, reasoning they were unpublished. However, prior to oral argument in our matter, the Rodriguez decision was published, and the plaintiffs abandoned the case, settling for nuisance value. 

Kimberly House and Oswald Clark (both of Philadelphia, PA) successfully defended the plaintiffs’ appeal from a verdict obtained by Aaron Moore and Alesia Sulock (both of Philadelphia, PA) for our client in a legal malpractice claim. During the case, the trial court partially granted our motion for judgment on the pleadings, which dismissed several tort claims and a claim for unfair trade practices. The matter then proceeded to trial on the remaining breach of contract claim. The jury returned a verdict in favor of our client, and the plaintiffs appealed, challenging the rulings on the motion for judgment on the pleadings and a motion in limine that purportedly precluded the plaintiffs from introducing certain evidence. The Superior Court affirmed in a unanimous decision, holding that the plaintiffs’ tort claims were barred by the statute of limitations and that the plaintiffs' argument regarding the trial court's decision on the motion in limine was waived because they failed to properly develop the argument in their appellate brief. 

Kim Boyer-Cohen (Philadelphia, PA) convinced the Commonwealth Court of Pennsylvania to reverse the trial court's order that reinstated our client as a party for purposes of trial and the verdict sheet. The plaintiff, an employee of the co-defendant, brought suit after she slipped and fell during her employment. The Honorable Sean Kennedy had granted our client's motion for summary judgment and dismissed all claims and cross claims against them. Over one year later, the Honorable Linda Carpenter granted the co-defendant's motion in limine, allowing the co-defendant to present evidence against our client at trial, place our client on the verdict sheet, and essentially vacate the order granting summary judgment. The Commonwealth Court held that Judge Carpenter's order violated the coordinate jurisdiction rule and reversed the order reinstating our client as a party at trial and on the verdict sheet. 

In another matter, Kim Boyer-Cohen persuaded the Court of Appeals for the Third Circuit to affirm the summary judgment granted in favor of our client, a township solicitor, and the other township defendants. The plaintiffs sued the defendants for a substantive due process violation based on the defendants' alleged appropriation of a portion of the plaintiffs' property as a public road. The Third Circuit declined the plaintiffs' “invitation to constitutionalize garden-variety land-use disputes” and affirmed the District Court’s grant of summary judgment, finding that the defendants’ conduct was a not virtual taking which shocked the conscience. 

Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the decision of the Workers’ Compensation Appeal Board in favor of our client, the employer, which upheld the workers’ compensation judge’s denial of a claim petition. By memorandum opinion, the court found that the judge’s credibility findings were neither contradictory nor arbitrary and capricious, and the decision was well reasoned. The court agreed with the employer that the defense expert’s opinions constituted substantial evidence, also noting that the Social Security Administration’s findings of disability were irrelevant to the issue of work-relatedness. The court concluded that the claimant failed to sustain her burden of proving a work-related injury, and since the causal connection between her “lingering symptoms and her work duties” was not obvious, she was required to present unequivocal medical evidence establishing that connection, which she failed to do. 

John ‘Jack’ Slimm and Jeremy Zacharias (both of Mount Laurel, NJ) successfully defended an appeal of a legal malpractice action in the New Jersey Appellate Division. The action was tried in Burlington County, New Jersey, and arose out of the plaintiff’s claims regarding our client’s settlement of underlying equitable distribution and alimony claims in connection with the plaintiff’s ownership of an ultrasound company. 

*Results do not guarantee a similar result.

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_{Defense Digest, Vol. 31, No. 3, September 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.}