Appellate Advocacy & Post-Trial Practice

Kimberly Berman (Fort Lauderdale, FL) and Mark McCulloch (Orlando, FL) succeeded in obtaining a per curiam affirmance in the First District Court of Appeal of a final order dismissing the plaintiff’s fire-loss subrogation claim against our client, a tenant in a leased property it insured. The First District affirmed the trial court’s finding that the specific fire-loss provisions in the lease between our client and the landlord shifted the risk of loss to the landlord; thus, our client was a co-insured under the policy, and an insurance company cannot sue its own insured. 

Kimberly Berman also succeeded in obtaining a per curiam affirmance in the Fifth District Court of Appeal of a final order of dismissal. Kimberly represented an international not-for-profit private membership organization in an action by a former member for the alleged violation of his membership in said organization. The plaintiff attempted to use a settlement agreement from a prior case to show he was in compliance with the organization’s membership requirements. The plaintiff also argued that the requirement to be a member of an underlying organization was unconstitutional because of an antiquated Florida law. Kimberly argued that: a settlement agreement could not be enforced against a third party with no privity or connection to a settlement agreement; the plaintiff failed to follow the procedural requirements to challenge the statute and, even if he did, the law was wholly inapplicable to our client; claim and issue preclusion were appropriate because the plaintiff had incorporated the issues and claims into his complaint, which demonstrated that the same set of operative facts and issues were being litigated for a third time; and the plaintiff failed to state a cause of action under the Florida Declaratory Judgment Act because the elements were not met and the court did not have jurisdiction under the Declaratory Judgment Act. The trial judge dismissed with prejudice. After dispensing with oral argument, the Fifth District affirmed the dismissal. 

Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Workers’ Compensation Appeal Board and a workers’ compensation judge denying penalties. The claimant alleged the employer failed to pay for medications and that the workers’ compensation judge did not properly credit Letters of Medical Necessity. Although the employer unilaterally ceased to pay the bills for the medications, the judge had found they were not causally related to claimant’s work injury. Therefore, the Commonwealth Court found the claimant was not entitled to penalties under the Act and that the judge issued a reasoned decision by adequately explaining why she rejected the Letters. 

Carol VanderWoude (Philadelphia, PA) obtained a reversal in the Pennsylvania Superior Court of the trial court’s denial of preliminary objections to venue. She successfully moved in the trial court for certification of the ruling pursuant to Pa.R.A.P. 311(b) so that an immediate appeal from the interlocutory ruling could be taken, and she subsequently prevailed on appeal. The litigation arose from a helicopter accident that occurred in Afghanistan. Both plaintiffs, husband and wife, resided in Arizona. Carol’s client is a Delaware corporation located in Bucks County, Pennsylvania, that refurbished the helicopter in Bucks County. The codefendant corporation leased the helicopter to the plaintiff-husband’s employer, which was organized and principally operates in Montana. The plaintiffs’ primary focus in seeking to establish venue was on Carol’s client and, in particular, on the fact that it purchased two fabric interiors from a Philadelphia vendor. One of the interiors was installed on the helicopter. In reversing the trial court, the Superior Court emphasized that the relevant time period for assessing a defendant’s acts in Philadelphia County is at the time a lawsuit is filed, the limited amount of purchases in the relevant time frame and the lack of any evidence to show an ongoing business relationship. The Superior Court determined that the business dealings of Carol’s client did not constitute actual business conducted in Philadelphia County. It stressed that “doing business with a Philadelphia County company does not amount to doing business in Philadelphia County if the obtained goods, services, or personnel are utilized elsewhere to further the defendant’s business activities.” Moreover, the Superior Court noted that our appellate courts have held that purchasing supplies from a vendor in Philadelphia County is not sufficient to confer venue. As to the codefendant, the Superior Court concluded the limited venue evidence pointed to a separate but related corporate entity, and that the evidence failed to show the co-defendant regularly conducts business in Philadelphia County. Because there was no evidence to support the imputation of a separate entity’s contacts with Philadelphia on the co-defendant, venue as to the co-defendant was also improper. 

Carol VanderWoude also successfully defended on appeal the trial court’s grant of compulsory nonsuit in a legal malpractice action following the trial court’s rulings on various motions in limine. The trial court granted our clients’ motions in limine to preclude the plaintiff from introducing into evidence that its attorney sued the wrong parties, that its attorney obtained an uncollectable judgment, and that the plaintiff would have prevailed in a lawsuit against other parties. Following the motion in limine rulings, trial counsel moved for nonsuit—arguing the plaintiff could not carry its burden of proof without the precluded evidence. On appeal, the plaintiff argued the trial court’s evidentiary rulings violated the law of the case set forth in the Superior Court’s decision reversing the trial court’s order sustaining our clients’ preliminary objections and dismissing the amended complaint, and that the trial court erred in granting the motions in limine. The Superior Court rejected both arguments and affirmed the trial court’s denial of the plaintiff’s motion to remove compulsory nonsuit. The Superior Court held that the trial court did not abuse its discretion in granting the motions and that it properly concluded the plaintiff failed to present evidence to meet its burden of proof.

Christopher Woodward (Harrisburg, PA) and Thomas Specht (Scranton, PA) secured the Third Circuit Court of Appeal’s affirmation of a district court’s grant of summary judgment in favor of our client. The Third Circuit agreed with our arguments that regular use exclusions in UIM policies do not act as de facto waivers of stacked coverage and, thus, do not violate Section 1738 of the Motor Vehicle Financial Responsibility Law.

*Results do not guarantee a similar result. 

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_{Defense Digest, Vol. 30, No. 4, December 2024, 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. © 2024 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.}