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Architectural, Engineering & Construction Defect Litigation

The Architectural, Engineering and Construction Defect Litigation Practice Group of Marshall Dennehey clearly understands the relationship between construction professionals and their respective responsibilities. Our practice group has a considerable number of years of experience in defending construction industry cases. The practice includes representation of owners, developers, general contractors, construction managers, subcontractors and design professionals. This group quickly develops an understanding of the project and contract documents in order to identify key issues early, then proceeds to develop those issues into sound defense strategies. Our practice group's litigation experience includes initial negotiations, construction claims, arbitration proceedings and jury trials involving all phases of construction litigation.
 
Our defense approach is aimed at the early identification of key issues and is predicated on developing the earliest possible defense strategies tailored to the individual case and client. The application of this strategy is carried out by a team approach consisting of experienced partners, associates and paralegals capable of handling the basic, as well as the highly sophisticated and complex, construction litigation matters.
 
The Architectural, Engineering and Construction Defect Litigation Practice Group of Marshall Dennehey consists of a diverse group of professionals with considerable experience handling matters throughout Pennsylvania, New Jersey, Delaware, Ohio, West Virginia, Florida, New York and Connecticut. The group prides itself on its multi-jurisdictional range of experience and substantial number of cases handled.
 
We look forward to your inquiries and remain at your disposal for presentations or seminars which your company may desire.

Results

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Multimillion Dollar Default Judgment Successfully Struck Down by Appellate Court

We succeeded in striking a $4.1 million default judgment entered in the Philadelphia Court of Common Pleas by a plaintiff who alleged defective residential construction. We convinced the court that Pennsylvania Prothonotaries and Clerks of Court lack authority to accept a praecipe to enter a default judgment in a specified amount unless the amount is approved by a judge or is a sum certain, meaning that the amount is ascertainable from a confessed judgment or a contract that specifies the amount due. The default judgment had spawned significant coverage litigation by and against the defendant’s insurer.

Summary Judgment Secured in a Design Defect Case

We won summary judgment on behalf of a company that provided software for the overall design of roof trusses in a design defect case. The plaintiff owned the apartment complex being built and hired Turnbull Wahlert to construct the building. 84 Lumber was subcontracted by Turnbull to build and install the roof trusses. 84 Lumber contracted with our client to use its software for the design of the roof trusses and to provide truss connect plate hangers. The building experienced severe water damage allegedly because the roof trusses were not sloped properly and the HVAC units were misplaced on the roof. Damages were estimated at over $1.2 million. 84 Lumber demanded that our client defend and indemnify it against Turnbull’s allegations. The court granted our motion for summary judgment.

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Case Law Alerts

Closing the Loophole

July 21, 2026

On November 17, 2023, New York amended the Prompt Payment Act, establishing a 5% cap on retainage under section 765-c of the General Business Law. Specifically, this amendment limited any retainage withheld from a contractor or subcontractor on a private construction project to 5%.  However, this amendment contained a significant gap: because the 5% limitation was not included among the void provisions enumerated in Section 757 of the General Business Law, owners and general contractors were able to circumvent the statutory cap through contractual provisions requiring higher retainage. Section 756-a of the General Business Law allowed the terms of a construction contract to supersede the Prompt Payment Act "except as otherwise provided" in the article. SB 5655, which went into immediate effect on December 19, 2025, closes this loophole by adding contract provisions that exceed 5% to be void and unenforceable under Section 757 of the General Business Law. 

Case Law Alerts

Contractor Prevails on Contractual Risk of Loss Provision

July 21, 2026

Carnaval Home hired Berman Construction to renovate an existing home owned by Carnaval. Their contract set the date of substantial completion at September 4, 2019, and included a risk of loss provision placing risk predominantly on Carnaval. Berman hired subcontractors, including an electrician and project supervisor, to carry out the renovations. On July 29, 2019, with renovation 90% complete, a fire destroyed the home. Carnaval then sued Berman for breach of contract, negligence, and violation of Florida building code. Carnaval based its breach of contract theory primarily on Berman failing to deliver the renovated property by substantial completion. At trial, Carnaval presented evidence that faulty attic wiring caused the fire, while Berman claimed it was caused by arson or another cause beyond its control. During the charge conference, Berman requested a question on the verdict form regarding the risk of loss provision and its other defenses of impossibility of performance and frustration of purpose. The trial court granted a directed verdict on impossibility of performance and frustration of purpose, holding the risk of loss provision eliminated those defenses, and also denied Berman’s request for the risk of loss question on the verdict form. The verdict form ultimately included questions regarding the breach, negligence, and code violation claims. Its questions regarding the breach claim included the following: whether Carnaval did what was required by contract; whether Carnaval was excused from doing what was required by contract; whether Berman failed to do what was required by contract; and whether Carnaval was damaged by Berman’s failure to perform. The jury found Berman was not negligent but did violate the building code and breach its contract, though the code violation did not cause Carnaval’s damages. Carnaval was awarded $928,850 pursuant to the breach claim. The trial court denied Berman’s post-trial motions and granted Carnaval’s motion for attorneys fees. On appeal, the 4th DCA noted that Carnaval presented evidence that the fire occurred the day electrical work was completed and power was restored to the house for the first time since construction began, when the home was under the exclusive control of Berman and its subcontractors. It presented testimony from the carpenter that the kitchen and family room lights went out while he was at the property that evening, which was also corroborated by Carnaval principal Luis Ormo. It presented expert testimony that the fire likely started in the attic and was not a result of arson. Berman offered testimony that traces of gas were detected along with unusual burn patterns and heat deformation at the bottom of door frames. Its expert testified that the fire had multiple points of origin. Berman established the home was engulfed in flames emanating from the roof within twenty minutes of Carnaval leaving the property and argued the fire could not have moved so fast absent arson. It further suggested the electrician and Ormo had separate dealings in violation of their subcontract, thus some of the electrician’s conduct was beyond Berman’s control. The 4th DCA held Berman’s claim of inconsistency between the negligence, building code violation, and breach jury verdicts was to be remedied by a new trial, not directed verdict, and further held that it did not have to decide whether the verdict was truly inconsistent as Berman did not raise this issue before the jury was discharged and did not seek the appropriate remedy of a new trial. As such, it held the trial court was correct in denying Berman’s motion for directed verdict. However, the court held that the trial court erred in denying Berman’s special interrogatory request as to the risk of loss provision. It explained that, where interrogatory verdict forms are used, it should include questions on both the plaintiff’s claims and any affirmative defenses. Without allowing a question regarding whether the risk of loss provision excused Berman from performance, the trial court did not resolve “the major question in the case.” The jury, having found Berman not negligent, made Berman’s defense, and the verdict form question, particularly significant. The court rejected Carnaval’s argument that Berman had waived its demand for arson-specific instructions and that Berman bore the risk of loss from non-arson-induced fires. It also held that Carnaval incorrectly applied the negative-implication canon, wherein the express mention of one thing implies the exclusion of another, stating not every positive statement of rights or obligations carries a negative implication. Further, the risk of loss provision’s clause including “perils beyond contractor’s reasonable control” amounted to a catch-all, to which the negative-implication canon cannot be applied. When read in totality, the provision clearly places risk of loss on Carnaval for perils such as arson. Berman was therefore entitled to have the jury decide whether the loss was caused by arson or another peril beyond its control. Final judgment in favor of Carnaval was reversed, as was the trial court’s order denying Berman’s motion for attorneys fees, and the matter was remanded for a new trial.

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Firm Highlights

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New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

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Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

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Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

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Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney