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Construction Injury Litigation

Construction sites are listed as one of the most dangerous places to work. With millions of accidents reported each year, injuries are often serious even catastrophic. This type of litigation is challenging and tends to involve sophisticated issues with multiple parties and complex relationships.

Marshall Dennehey's Construction Injury Practice Group understands these complex relationships and issues. With more than three decades of experience, our diverse team of attorneys regularly defends our clients in a wide range of personal injury matters arising out of the construction process. We provide an experienced defense unique to the law for owners, general contractors, constructions managers and subcontractors of every trade.

The depth of our experience is key to our legal defense in construction injury matters. Our professionals have considerable experience and understand the law surrounding this delicate area including workers' compensation, the statutory employer doctrine and peculiar risk doctrine. 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. Through the use of technology and aggressive investigation, we are able to assess liability and damages early on in the case so, together with the client and insurer; we can effectively resolve the case.

Our unique strategy and team approach consists of experienced partners, associates and paralegals capable of handling the basic, as well as the highly sophisticated and complex, construction litigation matters throughout Pennsylvania, New Jersey, Delaware, Ohio, Florida, New York and Connecticut.

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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Consolidated Cases Successfully Transferred to Correct Venue

We successfully transferred two consolidated cases involving alleged falls by construction workers from Philadelphia to Cumberland County. Our clients were located in Lancaster County, and the only codefendant was located in Philadelphia County. We filed preliminary objections as to venue, arguing that the codefendant was a “phantom” defendant named to obtain venue in Philadelphia County. The court was convinced by our arguments. This ruling cuts against the current trend of giving broad deference to plaintiffs on venue issues.

Obtained Positive Outcome in a Construction Site-Related Personal Injury Case

We secured a positive outcome for our client in a construction site-related personal injury case in New Jersey. After a month of trial, we successfully placed the entirety of the plaintiff’s $4.2 million jury verdict against the remaining co-defendant. We also succeeded in placing all of our client’s costs and attorney’s fees on the co-defendant. In total, the judgment against the co-defendant was in excess of $7 million.

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Danger: Construction Site - Avoiding Liability and Workers' Compensation Exposure in the Construction Industry

June 20, 2025

Construction sites are listed among the most dangerous places to work. With millions of accidents reported each year, injuries are often serious - and sometimes catastrophic. Such injuries often give rise to liability claims and workers' compensation claims. These claims can be challenging to defend, and tend to involve sophisticated issues with multiple parties and complex relationships. The avoidance of such claims requires proactive risk management strategies.

Defense Digest

Undefined Parties and the Statutory Employer Defense

December 1, 2024

Key Points:  A recent Pennsylvania Superior Court decision highlights the importance of clarity in contracts for employers asserting a statutory employer defense.  Employers will not be able to successfully assert the statutory employer defense when there is ambiguity about contracting parties. Contractors should ensure they are contracted with the owner of the property to protect against liability from a workplace accident. In litigation involving workplace accidents, a common defense raised by a contractor is the statutory employer defense under the Pennsylvania’s Workers’ Compensation Act. The Act requires an employer to pay workers’ compensation benefits to employees injured in the course of their employment regardless of the employer’s own negligence. In return for assuming secondary liability for the payment of workers’ compensation benefits, a statutory employer is immune from suit brought by an employee for a work-related injury.  A recent Pennsylvania Superior Court case highlights issues that may arise when a subcontractor’s agreement for a construction project is not properly executed. In Feldman v. CP Acquisitions 25, L.P., 2024 WL 4156993 (Pa. Super. Sept. 12, 2024), the Superior Court agreed with the trial court’s decision that a contractor could not avoid liability using the statutory employer defense when it is unclear who the contracting parties are in a subcontracting agreement. In this case the plaintiff, Brian Feldman, suffered grievous injuries from a workplace electrocution accident during a tree removal project during the construction of an apartment building. Cross Properties engaged Altino Concrete Construction as a contractor to build an apartment building on a property they had recently acquired. Near the end of construction on this project, Cross Properties reached out to Vito Braccia, the owner of Altino Concrete Solutions and Braccia Construction, LLC (VBC), to remove trees on an adjacent property owned by the Southeastern Pennsylvania Transportation Authority (SEPTA). Mr. Braccia then subcontracted with Colonial Tree Service, Inc., for the tree removal project. Mr. Braccia did not carry out any safety planning before the tree removal project, even though he was aware of a high-voltage power line on SEPTA’s property. Additionally, he failed to reach out to SEPTA for permission to enter the property or to have the power lines de-energized during the tree removal project. On the day of the project, Mr. Feldman was electrocuted when a current arced from the power line and through a crane hoist. As a result, Mr. Feldman suffered extensive and severe burns, and spent the next six weeks recovering in a hospital burn unit. Mr. Feldman filed and prevailed in a personal injury suit against the general contractor, developer, and related entities.  VBC, the contractor for the tree removal, appealed the trial court’s decision in favor of Mr. Feldman. One argument raised by VBC on appeal was that, as the plaintiff’s statutory employer under section 302(b) of the Workers’ Compensation Act, they were immune from a personal injury suit brought by Mr. Feldman.  The longstanding test to determine whether a person or entity qualifies as a statutory employer under this section was set forth by the Pennsylvania Supreme Court in McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930). The McDonald test requires an employer satisfy each of the following elements to be considered a statutory employer under section 302(b): an employer who is under contract with an owner or one in the position of an owner; the premises occupied by or under the control of such employer;  a subcontract made by such employer;  part of the employer’s regular business entrusted [sic] to such subcontractor; and  an employee of such subcontractor. It was undisputed that VBC was the contractor for the tree removal project. However, the respective representatives from Cross Properties and Colonial testified at trial that they believed they had an oral agreement with Altino Concrete Construction for the tree removal project, not VBC. As a result, the court determined there was no mutual understanding between the parties regarding who they were contracting with, which is essential for any contract. Therefore, the court held that VBC could not meet the first element of the McDonald test. The court went further and noted that, even if a valid contract existed between Cross Properties and VBC, it would not help their case. They would still be unable to prove they had a contract with the property owner or someone in a similar position. This is because SEPTA was the actual owner of the property in question, not Cross Properties. As VBC never attempted to reach an agreement with SEPTA for the tree removal, they could not establish they were a statutory employer under Section 302(b).  In conclusion, Feldman v. CP Acquisitions 25, L.P. underscores the importance of clearly defining contractual relationships in construction projects. The court’s ruling emphasizes that a lack of mutual understanding among contracting parties prevents the successful use of the statutory employer defense under the Pennsylvania’s Workers’ Compensation Act.  Contractors should ensure that subcontracting agreements clearly identify all parties involved and confirm ownership of the work site. By doing so, they can better protect themselves against liability in workplace accidents and minimize potential legal disputes. *Osama is an associate and a member of our Casualty Department. He works in our Philadelphia, Pennsylvania, office.    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.

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Firm Highlights

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Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Thought Leadership

The Best Defense is Already in the File: Documentation in Civil Rights Litigation

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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. 

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Thought Leadership

State of Insurance: Q2 Notes From Pennsylvania