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Carolyn Kelly Bogart

Co-Chair, Hospitality & Liquor Liability

Co-Chair, Premises & Retail Liability

Portrait of Carolyn Kelly Bogart

Carolyn, a shareholder in our Casualty Department, has been a practicing attorney since 1996. She focuses her practice on premises liability, defense of liquor liability, construction injury, significant exposure excess insurance claims, contract and general casualty matters, and sports and entertainment litigation. Carolyn’s practice also focuses on the area of retail liability, representing national and local retail clients defending general casualty matters, risk transfer claims, and negligent security matters. As a seasoned litigator Carolyn represents many clients in construction-based litigation involving contractual disputes and subrogation matters. 

Carolyn has extensive experience defending fraternal organizations, schools and universities in matters involving contractual disputes, indemnity, vicarious liability, dram shop and general negligence. She is well versed in NJ immunity laws for schools and fraternal entities. Additionally, Carolyn has experience defending organizations and hotel chains in high-exposure cases involving human trafficking and sexual assault allegations, including matters brought under the federal Trafficking Victims Protection Reauthorization Act (TVPRA).

Much of Carolyn’s caseload requires interpretation of contractual disputes involving insurance status and coverage disputes. She has extensive experience litigating complex contract and insurance coverage issues arising in construction, landlord and tenant, and other casualty matters. Carolyn has litigated numerous matters to verdict in the state of New Jersey and practices in all counties and federal court venues in the state.

In addition to her law practice, Carolyn provides annual legal updates to various clients ranging from issues dealing with auto liability, premises liability and risk management. She often provides consult to clients regarding liability matters, preparing for future issues to avoid litigation and developing policies and procedures for risk assessment.   

Carolyn is a graduate of The Catholic University of America, Washington, D. C. While residing in Washington, D.C., she worked on Capitol Hill as a legislative intern for Congressman James Saxton (Rep. 13th District of New Jersey). After receiving a Bachelor of Arts degree in Political Science, Carolyn continued her education at Catholic University's Columbus School of Law where she was actively involved in the Families and Law Clinic, Moot Court, and was also employed as a judicial intern for the Honorable Brook Hedge, D.C. Superior Court, Criminal Division.

Upon completion of her juris doctor in 1995, she accepted a position with the New Jersey State Judiciary and became law clerk to the Honorable George L. Seltzer, New Jersey Superior Court, Law Division.

    • The Catholic University of America Columbus School of Law (J.D., 1995)
    • Catholic University of America (B.A., 1992)
    • New Jersey, 1996
    • U.S. District Court District of New Jersey, 1996
    • Supreme Court of the United States, 2002
    • AV® Preeminent™ by Martindale-Hubbell®
      The Martindale-Hubbell rated attorney list is issued by Internet Brands, Inc. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • Camden County Bar Association
    • Commercial Defense Practice in New Jersey and Pennsylvania, Nationwide Insurance Company, Co-Presenter, December 2013
    • “Let It Snow,” Defense Digest, Vol. 27, No. 5, December 2021
    • “Sidewalk Liability - What You and Your Condo Association Have In Common,” Defense Digest, Vol. 18 No. 4, December 2012
    • Summary Judgment Secured in New Jersey Wrongful Death Case Obtained a summary judgment in a wrongful death case, based on a lack of duty owed by a groom to his wedding guest, and dismissal of cross claims for lack of a viable contract owing indemnity under Azurak. The decedent was a plus-one guest at our client’s wedding, which was held at a multi-building facility in Moorestown, NJ. Specifically, the venue consisted, in part, of a 131-year-old home with a castle-like outward appearance. The home’s design includes an elevated terrace (raised approximately five feet and accessible by stairs) with an unguarded, flat ledge. The plaintiff alleges the decedent was sitting and/or leaning against the ledge when he fell over, sustaining injuries that allegedly resulted in his death a few months after the event. Our client was an employee at the facility. The corporate owners of the property permitted him to use the home for his wedding, at no cost, provided he obtain an event insurance policy. The co-defendants sought indemnification, arguing that the policy evidenced an agreement that our client would provide indemnification to them. It was our position, and the court agreed, that our client owed no duty to warn the decedent as this was an open and obvious condition that the decedent was aware of or by a reasonable use of his faculties would observe. Further, our client and the decedent were both invitees to the property, and it is the co-defendant landowners who had a non-delegable duty to use reasonable care to protect against dangerous conditions. Therefore, the claims raised in the complaint and cross-claims for contribution were dismissed. Further, the court found no breach of contract or enforceable agreement to indemnify; the negligence in this case was on the co-defendant commercial property owners.
    • Summary Judgment Obtained in an Indemnity and Common Law Contribution Case Successfully argued and secured summary judgment in favor of a masonic organization, dismissing third-party claims for indemnity and common law contribution. At issue was a third-party complaint for contractual indemnity and common law contribution over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not Azurak compliant as there was no explicit language requiring indemnity. Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity. 
    • Summary Judgment Secured in a Dram Shop Liability Case Obtained a summary judgment in a challenging dram shop liability case against a large restaurant chain where the demand was $1 million. The plaintiff alleged our client was responsible for overserving the co-defendant driver prior to the subject motor vehicle accident. The court agreed with our arguments that the plaintiff failed to establish a violation of the The New Jersey Dram Shop Act. The plaintiff failed to present an expert report until opposing our motion for summary judgment. The expert report, which was submitted as an exhibit to the plaintiff’s opposition brief, did not extrapolate the defendant’s BAC at the time he left the defendant’s establishment. There was also no eyewitness testimony on the issue. The court rejected the plaintiff’s arguments that there was sufficient circumstantial evidence to support a jury’s conclusion that the co-defendant driver was visibly intoxicated at the time of service based on police observations at the scene of the accident and a (.17) BAC reading, which was administered approximately one hour and 30 minutes after leaving the restaurant. Distinguishing between prior case law and the subject circumstances, summary judgment was awarded based on the lack of either direct testimony or expert opinion as to the co-defendant’s state of intoxication at the time of service. 
    • Appellate Court Pivots; Motion To Dismiss Granted Obtained a published decision in the New Jersey Appellate Division reversing the denial of a motion to dismiss because of a lack of duty. The plaintiff’s ex-husband drove through the gate at a large, high-rise apartment complex, waited for plaintiff to arrive, and then shot her in the face. Our client was the former management company which ceased its management obligations 17 days before the shooting, when a successor management company took over. The plaintiff argued that our client was negligent based on procedures for securing the lot it put in place when it managed the property. We sought summary judgment, arguing a lack of duty due to the expiration of a management contract. The Law Division judge denied that motion, asserting there were genuine issues of fact and that the jury had to decide whether a duty existed. We persuaded the Appellate Division to grant interlocutory appeal, and then we successfully argued for a reversal. First, the Appellate Division agreed with us that the trial judge erred by holding that the existence of a duty was a jury question and not a question for the court to decide as a matter of law. Second, the Appellate Division held that, since our client no longer had any rights or responsibilities over the security of the premises when the shooting happened, and because there was no indication that the successor management company or the owner of the property could not have changed the procedures which our client had put in place, the former management company owed no duty to the plaintiff and that summary judgment was therefore appropriate.
    • Social Host Act Does Not Apply to Gross Negligence Claims Carolyn was successful in opposing a plaintiff’s appeal against our client, a former fraternity member and social guest. In 2014, the plaintiff was a 20-year-old college student and fraternity member attending a university in New Jersey. After consuming his own alcohol, he fell asleep in a dorm room that was the location of an on-campus party. In the early morning hours, he left the dorm room and proceeded to drive his vehicle, which was unknown to anyone in attendance, as all of the party attendees had either left the party or were asleep when he left. He injured himself in a one-car accident, resulting in a traumatic brain injury and disfigurement claim. In 2016, he filed a lawsuit naming all party attendees and fellow brothers in his fraternity, as well as the university and its employees. Following over 30 depositions, summary judgment was granted to all defendants. The appeal was filed in 2019, and a reported decision issued on March 25, 2021, affirming the underlying Superior Court decision as to our client. The appeal raised questions concerning the scope of the duty owed to an adult not old enough to drink legally, but who nonetheless drank to excess. The appellate panel ruled that the Social Host Liability Act did not apply because it governs liability for third party injuries resulting from the service of alcohol to an of-age adult.
    • Dismissal of Complaint Under New Jersey’s Charitable Immunity Act Marshall Dennehey was successful in the New Jersey Appellate Division, which affirmed the dismissal of the plaintiff’s complaint under New Jersey’s Charitable Immunity Act. The defendant operated a shelter for battered women, their dependent children and the homeless. The plaintiff and her child were residents at the shelter and beneficiaries of its charitable goals when the plaintiff slipped and fell on ice on the shelter’s property. She argued that she was not a beneficiary of the charity because she did administrative tasks and volunteered in the charity’s thrift store. However, the trial court and Appellate Division rejected those arguments, holding that the plaintiff’s presence on the defendant’s property was due to her being a resident beneficiary of the charity, not as a result of any volunteer work she may have performed for the defendant. Thus, because her volunteer activities were incidental to her residency at the shelter, the Charitable Immunity Act applied and the dismissal of the complaint was affirmed.  

Results

Summary Judgment Secured in New Jersey Wrongful Death Case

We won summary judgment in a wrongful death case, based on a lack of duty owed by a groom to his wedding guest, and dismissal of cross claims for lack of a viable contract owing indemnity under Azurak. The decedent was a plus-one guest at our client’s wedding, which was held at a multi-building facility in Moorestown, NJ. Specifically, the venue consisted, in part, of a 131-year-old home with a castle-like outward appearance. The home’s design includes an elevated terrace (raised approximately five feet and accessible by stairs) with an unguarded, flat ledge. The plaintiff alleges the decedent was sitting and/or leaning against the ledge when he fell over, sustaining injuries that allegedly resulted in his death a few months after the event. Our client was an employee at the facility. The corporate owners of the property permitted him to use the home for his wedding, at no cost, provided he obtain an event insurance policy. The co-defendants sought indemnification, arguing that the policy evidenced an agreement that our client would provide indemnification to them. It was our position, and the court agreed, that our client owed no duty to warn the decedent as this was an open and obvious condition that the decedent was aware of or by a reasonable use of his faculties would observe. Further, our client and the decedent were both invitees to the property, and it is the co-defendant landowners who had a non-delegable duty to use reasonable care to protect against dangerous conditions. Therefore, the claims raised in the complaint and cross-claims for contribution were dismissed. Further, the court found no breach of contract or enforceable agreement to indemnify; the negligence in this case was on the co-defendant commercial property owners.

Summary Judgment Obtained in an Indemnity and Common Law Contribution Case

We successfully argued and secured summary judgment in favor of a masonic organization, dismissing third-party claims for indemnity and common law contribution. At issue was a third-party complaint for contractual indemnity and common law contribution over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not Azurak compliant as there was no explicit language requiring indemnity. Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity.   

Thought Leadership

Defense Digest

On the Pulse…Navigating the New Era of Dram Shop Liability: Marshall Dennehey’s Hospitality & Liquor Liability Practice Group Steps Forward

September 1, 2025

Dram shop liability, or liquor liability, is civil liability—typically for bars and restaurants—for personal injuries arising out of service of alcohol to either a minor or a visibly-intoxicated patron. And it is quite the hot topic these days. An article about “dram shop” cases recently graced the front page of The Philadelphia Inquirer; quite a far stretch from what has long been a somewhat overlooked and largely ignored area of personal injury litigation.  Marshall Dennehey has been handling liquor liability claims since the days when the most common question we fielded was, “What is dram shop?” These cases have always had the potential to inflame juries due to the volatile nature of the fact patterns and circumstances surrounding alcohol-related incidents. But now, in the era of the “nuclear verdict,” juries are rendering astronomical verdicts in these cases.  Philadelphia attorney, M. Scott Gemberling, and King of Prussia attorney, Tony Michetti, have been at the forefront of this litigation for the past 40 years. With Tony’s recent retirement, and Scott’s transition to senior counsel at the firm, we have been appointed co-chairs of the firm’s longstanding Hospitality & Liquor Liability Practice Group. While it may seem like a “new era” here we have been learning from and working with Scott and Tony for the past two decades. And while Scott and Tony have tried plenty of liquor liability cases to verdict, their true legacy is a forward-thinking strategy focused on smart, fixed, and speedy investigation of claims, along with an evaluation of early mediation. The hope is to avoid, where possible, the nuclear verdicts that are increasingly splashed across the front pages of newspapers. This is the legacy we intend to carry forward. Drawing on our many years of experience, our team is here to handle any type of accident that accompanies or is related to the service of alcohol. While the classic “dram shop” scenario involves the patron who leaves a bar or restaurant and gets into a motor vehicle accident while intoxicated, that is just one scenario. We have handled cases against bars and restaurants arising out of numerous types of injuries that can occur, including cases involving:  •    Alcohol poisoning •    Bar fights •    Car accidents •    Motorcycle accidents •    Shootings •    Stabbings •    Suicide •    University fraternity/sorority events Additionally, the members of our group routinely present on the topics of safe service of alcohol, as well as risk management best practices, to help avoid and protect against claims and litigation. Whether you are faced with a lawsuit involving alcohol, or whether you are a business looking to avoid such a situation, our Hospitality & Liquor Liability Practice Group is here to help.  Patrick and Carolyn co-chair our Hospitality & Liquor Liability Practice Group. Patrick works in our Pittsburgh, PA office, and Carolyn works in our Mount Laurel, NJ office.   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.

Defense Digest

Let It Snow

December 1, 2021

Key Points:  Supreme Court of New Jersey applies ongoing storm doctrine. Court held that a commercial landowner does not have the absolute duty to keep sidewalks of his property free from snow or ice during an ongoing storm. In the September 2019 edition of Defense Digest, my colleague, Josie Scanlon, Esq., addressed the Storm in Progress Doctrine in her article “Emerging Liability Theory Provides New Defense for Premises Cases – The Ongoing Storm Doctrine.” The article discussed whether a commercial property owner could be held liable as a matter of law for failing to remove accumulated snow or ice until a reasonable time after the storm ends. This New Jersey premises liability law, while well established, did not provide an absolute elimination of liability for commercial property owners. Instead, it focused on whether or not reasonableness was the standard as it applied in the context of a commercial property owner’s removal of snow and ice from an abutting public sidewalk.  However, in June of 2021, in Pareja v. Princeton International Properties, et al., 252 A.3d 1984 (N.J. 2021), the Supreme Court of New Jersey addressed a case that had been pending since 2015. The court held that a commercial landowner did not have the absolute duty to keep sidewalks of his property free from snow or ice during an ongoing storm. In Pareja, a pedestrian had brought a personal injury action against a commercial landowner after slipping and falling on an icy sidewalk during an ongoing storm. The matter had been heard in Mercer County, New Jersey, which is half-way between Philadelphia and New York, and known as the “I-95 Corridor.” It is an area often subject to various freeze, thaw and re-freeze cycles during the winter months.  The Superior Court in Mercer County granted summary judgment to the landowner. The pedestrian appealed, and the Appellate Division reversed the findings of the trial court. The landowner petitioned for certification to the Supreme Court, which was granted. The judgment of the Appellate Division was reversed, although a dissenting opinion was filed. The central issue for the court was the duty of the commercial landowner to clear snow and ice from its property during a storm. For the first time, the court considered adoption of the “ongoing storm” rule rather than the preexisting “reasonableness standard.” The Supreme Court affirmed the standard that a “landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.”  The plaintiff in Pareja was walking to work in the early morning hours, and he slipped and fell on a commercial-abutting sidewalk. The trial court, although granting summary judgment to the landowner, found that the ongoing storm rule applied and that there was no duty to maintain the sidewalks during an ongoing snow. The Appellate Division reversed this finding, concluding that the landowner had a duty to maintain the sidewalk even when snow was falling. The New Jersey Supreme Court held that the standard established in the legal precedent supports the adoption of the ongoing storm rule. In addition to adopting the rule, the Supreme Court also recognized two exceptions that can create a duty: (1) if the owner’s conduct increases the risk; or (2) if the danger is pre-existing. The court recognized in Pareja that the storm was ongoing and held that commercial landowners did not have the absolute duty and impossible burden to keep sidewalks on their property free from snow or ice during an ongoing storm. Based upon the active storm condition, the court ruled that, absent unusual circumstances, commercial landowners’ duty to remove snow and ice hazards arises not during a storm but, rather, within a reasonable time after a storm.  As in many cases, the court clarified that there are some exceptions to the rule. Those unusual circumstances are set forth in the Pareja holding and state that commercial landowners may be liable if their actions “increase” the risk to pedestrians. For instance, engaging in snow and ice removal while the storm is ongoing, thus allowing a thaw and re-freeze situation, could increase the severity of the risk and change the nature of the accumulation on outside surfaces. Additionally, a commercial landowner may be liable when there is a pre-existing risk on the premises before a storm. For instance, pre-existing snow from a previous storm that had never been removed may create an icy base. In conclusion, the Supreme Court has highlighted the nature of the ongoing storm doctrine. Indeed, New Jersey has not received significant snow fall in the past several years but, rather, has received mixtures of snow and ice, creating the I-95 Corridor effect seen on the Weather Channel. The ongoing storm doctrine permits a commercial property owner to wait until the storm has ended, whether it be ice or snow.      *Carolyn is a shareholder in our Mount Laurel, New Jersey, office. She can be reached at 856.414.6006 or ckbogart@mdwcg.com.   Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. 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

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.

Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Thought Leadership

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.