Appellate Advocacy & Post-Trial Practice

Kimberly Berman (Fort Lauderdale, FL), Michael Bradford (Tampa, FL) and Mark McCulloch (Orlando, FL) succeeded in obtaining an affirmance in the Second District Court of Appeal of a judgment entered in favor of a peer-to-peer car-sharing service and the host/owner of a vehicle. The plaintiff was injured in an automobile accident with a guest who had rented a host’s automobile thru a peer-to-peer car-sharing platform. The plaintiff sued the guest, the host, and the peer-to-peer car-sharing company for negligence, vicarious liability under the dangerous instrumentality doctrine, and joint venture. The trial court granted summary judgment for the host based on the Graves Amendment, which preempts vicarious liability claims against an owner of a vehicle where a person or entity is engaged in the business of renting or leasing a motor vehicle and is not alleged to have been negligent or to have had any criminal wrongdoing. The court also found there was no joint venture. After oral argument, the Second District Court agreed and affirmed the final judgment in our clients’ favor. 

Kimberly Berman and Michael Packer (both of Fort Lauderdale, FL), as local counsel for an insurance company, along with many other law firms and insurance carriers, succeeded in obtaining an affirmance in the Third District Court of Appeal of a judgment entered in favor of various insurance carriers for business interruption claims stemming from the COVID-19 pandemic. The plaintiffs (business owners) sought a determination of whether their losses during the COVID-19 pandemic were covered under the Business Interruption provision of their insurance policies. The business owners claimed the plain language of the policy provided coverage for Business Interruption expenses without requiring “direct physical loss.” The insurers moved for judgment on the pleadings, and the court granted the motion. After oral argument, the Third District Court affirmed the final judgment, finding that the policies did not provide coverage in the absence of “direct physical loss” or property damage. 

Diane Toner and Jack Yau (both of New York, NY) successfully defended against the plaintiff’s appeal in the Appellate Division, Second Department, which challenged an order that adhered to a prior ruling by the Supreme Court, Westchester County, that had granted the defendant’s motion for summary judgment, dismissing the complaint. In their brief, Diane and Jack argued the appeal should be dismissed due to the plaintiff’s failure to assemble a proper record on appeal. The plaintiff omitted critical documents relied upon by the motion court, including submissions supporting and opposing the defendant’s motion. At oral argument, Jack persuasively presented the case before a panel of four justices. The Appellate Division ruled in favor of the defendant and dismissed the appeal without reaching the merits. The court reaffirmed that it is the appellant’s responsibility to provide a complete record containing all relevant materials from the lower court. The plaintiff’s failure to do so, the court held, made meaningful appellate review impossible. The decision was unanimous, and no further appeal is available; thus, securing a decisive victory for our client.

In a case where an insurance broker faced claims of professional negligence, Carol VanderWoude (Philadelphia, PA) successfully defended the plaintiff’s appeal from a verdict obtained by Timothy Ventura and Dana Gittleman (both of Philadelphia, PA). The verdict against our client, an independent insurance broker, was well below the lost value of UIM coverage (i.e., $1 million), which the plaintiff sought to recover based on an alleged breach of the professional standard of care in failing to procure an endorsement for $ 1 million in UIM coverage on the plaintiff’s decedent’s commercial auto policy. The verdict is notable because, at trial, the client gave unexpected testimony which impacted liability, and when confronted with the client’s new trial testimony, our standard of care expert conceded a breach of the professional standard of care. Still, causation/damages were contested, and it was disputed at trial that the plaintiff’s decedent would have actually received $1 million in coverage. Tim elicited testimony on cross-examination of the plaintiff’s expert that showed that there was no evidence establishing that the insurer would have provided additional UIM coverage even if the endorsement had been purchased. Prior to trial, the parties entered into a stipulation stating that damages were capped at the value of the lost coverage, $1 million. Plaintiff’s counsel challenged the low verdict on various grounds, focusing on the fact that our expert conceded a breach of a standard of care based on the client’s unexpected trial testimony. He argued that, as a matter of law, the damages amount was the lost value of the coverage and the verdict should be increased to $1 million. However, the trial court agreed with our arguments, raised in opposition to the plaintiff’s post-trial motions, that the low verdict amount was supported by the record and that the plaintiff’s requests for post-trial relief were otherwise waived for various reasons. The Superior Court affirmed in a unanimous decision.

*Results do not guarantee a similar result. 

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_{Defense Digest, Vol. 31, No. 2, June 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.}