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Legal Updates for Florida Coverage and Property Litigation

District Court finds that trial court’s order lacked specificity, stressing that when a party asserts privilege objections, the trial court must make specific findings to support the overruling of those objections.

Apex Roofing a/a/o Nancy Forde v. Security First Insurance Company, Fla. 5th DCA, 5D2023-2629, May 31, 2024

July 1, 2024

by Corey K. Setterlund

This case involved a roof repair performed by Apex Roofing and the insured having executed an Assignment of Benefits (AOB). The carrier issued payment, but Apex Roofing felt it was entitled to a larger payment. When the carrier would no pay additional benefits, Apex Roofing sued them for breach of contract. During discovery, the carrier requested several documents that Apex Roofing objected to, claiming the documents sought contained privileged trade secrets. Apex Roofing also refused to answer several questions at deposition, claiming privileged trade secret objections. At the hearing where the carrier sought to overrule the objections, Apex Roofing argued the information and documents were not likely to lead to admissible evidence, but if the court disagreed, an in-camera evidentiary hearing should occur. The court found the information and documents discoverable, overruled Apex Roofing’s objections, and also refused to hold an in-camera inspection of the documents. The order merely advised which requests and questions Apex Roofing was to respond to. Apex Roofing requested a rehearing, claiming the written order failed to contain specific findings and how the court determined the applicability of the trade secret privilege without an in-camera inspection. Apex Roofing also filed its appeal.

The Fifth District Court of Appeals agreed with their sister courts that, when the parties dispute entitlement to the trade secret privilege, the court’s determination will usually require that the court conduct an in-camera inspection of the documents to determine whether they contain trade secrets. The carrier argued that an in-camera inspection was not needed because single transaction pricing does not fit the definition of trade secret. The court disagreed, noting that if documents related to a bottom-line bid and general terms include information regarding the bidder’s underlying calculations or bid development process, the documents could possibly contain trade secrets. Apex Roofing argued their single-transaction materials at issue could be used to ascertain Apex Roofing’s commercial methods. The court determined Apex Roofing’s assertion raised a factual dispute regarding their entitlement to the trade secret privilege. The court determined that the instant dispute required an in-camera review of the document and the trial court’s failure to perform an in-camera inspection departed from the essential requirements of law. Further, the court agreed that the trial court’s order lacked specificity, asserting that when a party asserts privilege objections, the trial court must make specific findings to support the overruling of those objections. 

 

Legal Update for Florida Coverage & Property Litigation – July 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

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

Not So Fast. . . The Limitations of the Pennsylvania RELRA in Plaintiffs’ Civil Actions Against Real Estate Broker and Licensee Defendants

Much has been made of the importance and weight of the Pennsylvania Real Estate Licensing and Registration Act, 63 P.S. §§ 455.101, et. seq. (the “RELRA” or “Act”). After all, a real estate broker generally cannot recover any commission absent a signed agreement that complies with RELRA. But can a Plaintiff rely on RELRA as a distinct cause of action in a civil action as to a real estate broker or licensee defendant? The Superior Court has emphatically held that he or she cannot. In the unpublished opinion P. Perez Real Est. Holdings, LLC et. al. v. Home Sale Real Est. Servs., Inc., et al., No. 256 MDA 2025, 2025 WL 35389888 (Pa. Super. Ct. December 10, 2025), the Superior Court held that the act “does not contemplate private actions for money damages as an enforcement mechanism and consequently, does not create a private cause of action.” citing Schwarzwaelder v. Fox, 895 A.2d 614, 620 (Pa. Super. 2006). While the act authorizes the Bureau of Professional and Occupational Affairs, State Real Estate Commission, to regulate the conduct governed by RELRA, the act alone does not create a stand-alone legal cause of action as to a broker-defendant in a civil action. See P. Perez, citing Schwarwaelder at 620.  Nor can it be stated that RELRA creates or imposes any legally cognizable duties on real estate brokers or licensees. While the act contains and refers to general concepts of duty (e.g. the agent must “exercise reasonable professional skill and care which meets the practice standards required by this act” and “to deal honestly and in good faith” 63 P.S. §§606.1 (a)(1),(2), or the broker has a duty to the buyer of property to take “action that is consistent with the buyer’s interest in transaction.”  63 P.S. §§606.3 (1)), these general concepts are secondary to the duties imposed by the required written agreement between the broker and consumer. For example, in P. Perez, a case in which the buyers-plaintiffs argued that the real estate broker failed to investigate recent legislation that would affect buyer’s intentions to convert the property to commercial space, the agreement between buyer and broker contained the following provision in the “Buyer’s Due Diligence” clause: Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an independent examination or determination of the structural soundness of the property, the age or condition of the components, environmental conditions, the permitted uses, nor of conditions existing in the locale where the property is situated. . . Accordingly, the broker defendants expressly disclaimed any duty to buyers to inform them or determine whether any applicable zoning classifications, laws, or ordinances in the township applied to the properties in question. Moreover, the Superior Court refused to read provisions of the act into the Agreement, citing Skiff re Buss, Inc. v. Buckingham Review, LP, 991 A.2d 956 (Pa. Super. 2010).  Accordingly, in defending civil actions it is important for the defense attorney to identify any causes of action predicated solely on RELRA. Preliminary objections may be warranted to the extent that the plaintiff asserts RELRA as a stand-alone cause of action for monetary damages, a position struck down by the Superior Court of Pennsylvania in P. Perez.  Moreover, any attempt to create or heighten duties as to the broker defendants may be countered by the general proposition that the courts will not inject the vague concepts of “reasonable professional skill” or “good faith” where the written Agreement has express provisions regarding the duties of the parties. Ironically, although RELRA is an important act with which all realtors, brokers, and licensees should be familiar to guarantee that their commissions are in fact timely paid, the Act, is not a strong stand-alone mechanism for a plaintiff’s attempts to recover monetary damages in a civil action.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

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.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Pennsylvania Superior Court Confirms RESDL Claims Are Subject to a Two-Year Statute of Repose

The Pennsylvania Superior Court recently concluded that claims under the Real Estate Seller Disclosure Law (“RESDL”) are subject to a two-year statute of repose running from the settlement date. This decision will further assist defending errors and omission claims against real estate agents as it bars any RESDL action commenced more than two years after the settlement date regardless of when the defect was discovered.  In Hollinger v. Deitrich, 2026 Pa. Super. LEXIS 328 (June 23, 2026), the buyers entered into an agreement of sale in April of 2017 to purchase a residential property. The settlement occurred in June of 2017. The buyers reviewed the seller disclosures that revealed the property had a sump pump in working order and a sump pit. The disclosures further noted no water infiltration into the basement, but disclosed rehab, an addition to the property and prior sewage backup.  Shortly after the settlement and closing, the buyers experienced flooding in their basement. In March of 2020, the buyers filed suit against the seller, the buyers’ real estate agent and broker and the seller’s real estate agent and broker alleging various causes of action including a violation of RESDL. The buyers alleged that they sought assurances from the agent defendants that no water infiltration occurred on the property. They further alleged that both agents lived in the area and should have known about the neighborhood water infiltration issues. The trial court granted summary judgment for the seller and the seller’s agents and dismissed the RESDL violation.  Relying on the Supreme Court’s decision in Gidor v. Mangus d/b/a Mangus Inspections, 345 A.3d 629 (Pa. 2025), the court explained that a statute of limitation begins to run from the time of the injurious occurrence or a discovery of the same. However, a statute of repose runs for a statutorily determined period after a definitively established event. Notably, a statute of repose eliminates a cause of action regardless of when the claim accrues. Because of this, a plaintiff may not invoke the discovery rule or other equitable tolling considerations.  RESDL requires that an action for damages, as a result of a violation of this chapter, must be commenced within two years after the date of final settlement. The court found that Section 7311(b) was clear and unambiguous that an action for damages pursuant to this chapter must be commenced within a certain time after a definitely established event that is independent of any injury or discovery of any injury. Since the buyers sued over two years after closing on the property, their statutory claims were time-barred. The court explained that the seller disclosure statement could not support common law or consumer protection claims, as using it would improperly expand remedies beyond the statute’s terms. Accordingly, the court upheld the trial court’s summary judgment ruling that the buyers’ claims under RESDL were barred by the statute of repose.  Accordingly, defense counsel should scrutinize complaints involving RESDL claims to ensure that such claims have been timely brought within two-years of the settlement date. A plaintiff will no longer be able to invoke the discovery roll to expand the time frame.

Event

Pennsylvania Appellate Update 2025-2026

On August 21, 2026, Casey will serve as a panelist for the live webcast program, “Pennsylvania Appellate Update 2025-2026” presented by the Appellate Advocacy Committee of the Pennsylvania Bar Association and Pennsylvania Bar Institute. The program is divided into three parts—Criminal, Civil, and Administrative. Casey will serve as a panelist for the Civil portion, along with Christina McKinley of Blank Rome, Ben Baer of Injury Law Partners, John Masslon of Keller Postman, Jonathan Bruno of Bruno Litigation LLC, and moderator, Ezza Ahmed of Buchanan Ingersoll.  Registration and more information: https://www.pbi.org/product/pennsylvania-appellate-update-2025-2026/

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars