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Defense Digest

On the Pulse…Our Personal Injury Protection (PIP) Litigation Practice Group

Defense Digest, Vol. 27, No. 2, March 2021

March 1, 2021

by Jeffrey G. Rapattoni

Marshall Dennehey’s Personal Injury Protection (PIP) Litigation Practice Group defends clients in PIP matters on a wide array of issues. We act as local, regional and national counsel, handling all facets of PIP litigation, insurance consultation and fraud recovery in various jurisdictions across the country.

PIP litigation requires careful and constant attention by the insurance company that provides the coverage. Small changes in the statute or regulatory framework can have a significant impact on the function and practice of PIP coverage and claims processing. Our team works with a variety of local and national organizations to ensure that our clients get the most up-to-date information relative to processing and defending PIP claims. The lawyers in our group are 100% dedicated to PIP litigation, as we believe that PIP is a specialty practice requiring local subject matter expertise.

Our practice group recognizes that success in PIP litigation is dependent on two factors: an innovative, efficient and intelligent approach to claims handling, and the implementation of solid and dependable claims practices across the insurance company. As such, our PIP team collects real-time data and metrics on what drives litigation so our clients can help build a better defense or process from the inside-out. We provide consultation services on maximizing process efficiency, artificial intelligence (AI) integration and loss capture involving pass-through claims. Our practice group is designed to be a client’s strategic business partner instead of a vendor. We strive to protect our clients’ interests and act as a primary resource clients can turn to when PIP questions arise in their regular day-to-day claims processing practice.

PIP litigation often involves fraud, misrepresentation or deception in the presentation of claims. Our team of lawyers work with special investigation units, law enforcement, and other government agencies to stop fraud and abuse. The practice group has specialty lawyers trained to file recovery actions, such as RICO and Qui Tam, and to improve our clients’ outcomes. Our PIP team also has vast experience taking Examinations Under Oath, working with medical experts and drafting complex coverage opinions, as well as filing motions to adjudicate coverage when necessary.

*Jeff is not only chair of our Personal Injury Protection (PIP) Litigation Practice Group, he is also co-chair of our Fraud/Special Investigation Practice Group. He is a shareholder and works in our Mount Laurel, New Jersey office. He can be reached at 856.414.6076 or jgrapattoni@mdwcg.com.

 

 

Defense Digest, Vol. 27, No. 2, March 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

Delaware Superior Court Clarifies Pleading Standard for Legal Malpractice Claims

In the matter of Edelstein v. Kirschner, No. N25C-09-018 FJJ, 2026 Del. Super. LEXIS 45, at *1 (Super. Ct. Jan. 29, 2026), the plaintiff law firm sued its former client for unpaid legal fees in the amount of $4,399.35. The former client asserted a counterclaim alleging legal malpractice. More, specifically, the former client claimed that his lawyer committed malpractice be recommending that he settle an underlying lawsuit by entering into a stipulated judgment for an excessive amount with interest that was accruing at “an outlandish” interest rate. The law firm moved to dismiss the counterclaim on the basis that its former client had not alleged facts reflecting that he could prove the case within the case. That is, facts reflecting that his attorneys caused him to lose the underlying case. The Superior Court held that while a legal malpractice plaintiff in cases arising from underlying litigation must prove the case within the case to survive a summary judgment motion, he does not need to plead facts reflecting as much in order to survive a motion to dismiss. While this case addresses the pleading requirements of a legal malpractice case in Delaware, it also serves as reminder that chasing unpaid legal fees from a former client can often give rise to a legal malpractice counterclaim. Attorneys seeking to collect unpaid legal fees should ensure that the fees they seek are for a significant amount, which would be recoverable if a judgment is obtained. Otherwise, the effort could backfire.

Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.