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Results

  • Plaintiffs’ Class Action Certification Attempts Thwarted

    We received a favorable decision from the Philadelphia County Court of Common Pleas Commerce Program. Our motion to strike the plaintiffs’ class action certification was granted, effectively dismissing the plaintiffs’ attempts at a class action lawsuit against a transportation authority.

  • Dismissal of Class Action Against a Retailer

    Our retail client faced a class action suit alleging claims it charged Pennsylvania state tax on face masks/coverings during the COVID-19 pandemic (when they were not subject to sales tax). The plaintiff on his own behalf and on behalf of the putative class alleged claims for violations of the Pennsylvania Unfair Trade Practices Consumer Protection Law and the Pennsylvania Fair Credit Extension Uniformity Act, as well as common law claims for unjust enrichment, fraud and misappropriation/conversion. The plaintiff claimed that face masks and coverings became exempt from Pennsylvania sales tax as of March 6, 2020, when the governor issued a Proclamation of Disaster Emergency. Prior to the Proclamation, non-medical face masks/coverings were subject to sales tax because they were classified as ornamental wear or clothing accessories. The court held that the plaintiff failed to state a claim for any of the causes of action alleged and held that amendment would be futile.

  • Denial of Nationwide and Pennsylvania-Wide Class Certification Affirmed

    Our attorneys prevailed on an appeal to the Third Circuit, which affirmed the district court’s rejection of the plaintiffs’ request for class certification in a product liability and warranty action. The named plaintiffs are several property owners and communities of common ownership who allege they have yellow-jacketed, corrugated stainless steel tubing (CSST) transporting natural gas through their structures. The flexible, yellow CSST is the modern heir to the black iron pipe formerly universal in the building industry. The flexible CSST offers advantages, including ease of installation, but the plaintiffs asserted there are latent product defects that risk failure in the event an electrical surge makes its way to the tubing, either from an in-house event or nearby lightning strike. The district court denied the plaintiffs’ request for nationwide and Pennsylvania-wide class certification of their disparate claims because of a failure of record proof on the elements of ascertainability of a sufficiently numerous class, predominance of typical and common claims, and an inability to demonstrate proof of liability and damages issues on a class-wide basis. The Third Circuit granted the plaintiffs’ request for interlocutory review of the class certification decision, but nevertheless affirmed the district court’s ruling on largely the same bases. Without passing on the merits of the product defect claims, the Third Circuit recognized that there was no basis to grant class-wide treatment given the differences in everything from notification to putative class members, liability and damages proofs, and the law governing claims. The denial of class certification was affirmed, and the case will proceed on an individual basis only.

  • Third Circuit Affirms Dismissal of Consumer Fraud Class Action Against Unclaimed Property Recovery Services Firm

    We obtained a dismissal of a consumer fraud class action against our clients, a national firm and its principal, who specialize in identifying and reclaiming lost property for consumers who are unaware that such lost property exists. The plaintiff brought claims under the Pennsylvania Unfair Trade Practices Consumer Protection Law (UTPCPL) and for fraudulent inducement, arguing that the business model was deceptive because consumers could recover their own property without paying for the ease and convenience of having the defendant business work on their behalf.  Not surprisingly, the district court found that the plaintiff’s serial complaints failed to allege anything “more than Defendants’ expertise,” and that there was no factual basis to support the notion that consumers are unduly influenced or misled.  On appeal, the Third Circuit affirmed the dismissal, expressly noting that the defendants made no misrepresentation at any time, and the UTPCPL and fraud claims were dismissed as without merit.  DeSimone v. U.S. Claims Servs., Inc., 2020 WL 2556949 (E.D. Pa. May 20, 2020), aff’d 2021 WL 1662779 (3d Cir. Apr. 28, 2021).

  • Summary Judgment in Class Action Lawsuit On Behalf of Large Insurer

    We obtained summary judgment in a putative class action lawsuit in the Eastern District of Pennsylvania on behalf of a large insurer. The case dealt with a letter the insurance carrier would send to their insureds following a motor vehicle accident in which they advised their insureds that they would have a rental vehicle for five days. The named plaintiffs argued the letter misrepresented the policy language and they sued for breach of contract, bad faith, declaratory judgment and equitable relief. Per the insurer’s request, the court agreed to stay class action discovery so that the insurer could file a dispositive motion as to the named plaintiffs, which, if granted, would dispose of the entire putative class action case. In its motion for summary judgment, the insurer argued that the named plaintiffs could not meet their individual burdens of proof since it was undisputed they had a rental vehicle for 23 days and had returned the rental the same day they picked up their newly purchased vehicle. The court agreed and granted the insurer’s motion for summary judgment in its entirety and dismissed the action. The court reasoned, in part, that the named plaintiffs’ alleged damages were speculative and that issuance of the rental letter did not constitute a breach of the policy since the plaintiffs could not show that they were not afforded benefits to which they were entitled.

Firm Highlights

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News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

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Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed.