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Legal Updates for Insurance Agents & Brokers

Statute of Limitations Stands: Pennsylvania Superior Court Affirms Dismissal of Breach of Contract Claim Against Insurance Broker

Legal Update for Insurance Agents & Brokers – February 2025

February 1, 2025

by Dana A. Gittleman and Timothy G. Ventura

The Pennsylvania Superior Court recently affirmed the Philadelphia County Court of Common Pleas’ dismissal of breach of contract claims asserted against an insurance broker in Thuong Erin Wasielewski, Individually and as Administratrix of the Estate of Thuong D. Nguyen, Deceased v. Goebel Insurance Agency, Inc. and Christopher Goebel, 2025 WL 66728. Marshall Dennehey attorneys Dana Gittleman and Timothy Ventura represented the defendants, Goebel Insurance Agency, Inc. and Christopher Goebel, in the trial court action, and appellate attorney Carol Vanderwoude handled the appellate briefing and argument. 

The Philadelphia County Court of Common Pleas granted the defendants’ motion for judgment on the pleadings, which was premised on the expiration of the statute of limitations before the plaintiff initiated suit. On appeal, the Superior Court of Pennsylvania affirmed the decision, finding that the plaintiff’s claims were time-barred based on the date(s) on which the plaintiff was notified of a lack of coverage and, resultantly, a potential claim against the defendants. 

The case arose from an underlying wrongful death lawsuit, Thuong Erin Wasielewski v. Lee’s Café & Bistro and Lee’s Café & Bistro, LLC, d/b/a Lee’s Café & Bistro, Lee Hung, Wong Family Investment, LLC and Wong Family Investment (wrongful death action) and a related declaratory judgment lawsuit, Erie Insurance Exchange v. Lee’s Café and Bistro, LLC, Lee Hugh a/k/a Lee Quach and Thuong Erin Wasielewski (declaratory judgment action). The instant matter was initiated by a complaint filed on July 27, 2022.

On March 2, 2018, the wrongful death action was initiated, alleging wrongful death, premises liability and negligent security against a restaurant, Lee’s Café & Bistro, LLC, for an employee’s (plaintiff-decedent Nguyen’s) March 3, 2016, murder at the business premises. Lee’s Café tendered its defense for the wrongful death action to its insurer, Erie Insurance Exchange, which had issued a commercial general liability and property insurance policy procured by the defendants. On June 13, 2018, Erie filed the declaratory judgment action, seeking a declaration that it did not owe a defense and/or indemnity to Lee’s Café for the wrongful death action pursuant to the employer’s liability exclusion. On May 8, 2019, Erie filed a motion for summary judgment in the declaratory judgment action, which was granted on November 15, 2019. Accordingly, Erie was determined not to have a duty to defend or indemnify Lee’s Café in the wrongful death action. Prior to the trial of the wrongful death action, the owner and operator of Lee’s Café, and Lee’s Café entered into a settlement agreement and covenant not to enforce with the plaintiff, agreeing to settle the claims in the wrongful death action and assigning their rights against the defendants to the plaintiff.

The Erie policy was issued pursuant to an application and supplemental application signed by Ms. Chung on December 23, 2014, which—along with the policy itself—identified the scope of coverage provided, i.e. commercial general liability and property protection. The policy coverages did not include workers’ compensation, and the exclusion at issue, employer’s liability exclusion, was unambiguously disclosed in the Erie policy. 

On April 22, 2016, upon receipt of Lee’s Café’s notice of claim on March 4, 2016, Erie issued a reservation of rights letter, outlining potential grounds for disclaiming coverage and stating that the injuries to employees were excluded under the policy; thus, decedent Nguyen’s injury would be precluded. Erie advised Lee’s Café that it “may want to notify [its] Workers’ Compensation insurance carrier of this loss.” On May 16, 2016, Erie reiterated its coverage position under the subject Erie policy. Thus, as of April 22, 2016, and May 16, 2016, Lee’s Café knew of a potential coverage issue regarding the Nguyen claim under the Erie policy and that it did not have workers’ compensation insurance under the Erie policy. Further, on November 1, 2016, Lee’s Café signed a State Workers’ Insurance Fund application, stating the business did not have previous workers’ compensation insurance coverage in Pennsylvania. On April 20, 2018, Erie issued a denial letter, disclaiming coverage for the wrongful death action, citing the employer’s liability exclusion.

The trial court held the plaintiff’s breach of contract claims arising out of the defendants’ alleged failure to obtain “all necessary coverages,” including liability coverage for the employees of Lee’s Café that would have covered the March 3, 2016, loss, were time-barred by the applicable four-year statute of limitations. Defendants’ counsel raised several instances of notice of the alleged loss (no insurance coverage) including: December 2014 policy application and inception; December 2015 policy renewal; April 22, 2016, and May 16, 2016, coverage denial letters; April 20, 2018, Erie denial letter; and June 13, 2018, declaratory judgment action.

The trial court judge identified the dates plaintiff’s cause of action potentially accrued, all of which were more than four years prior to the inception of the instant lawsuit against Defendants on July 27, 2022. The court further rejected plaintiff’s argument that the claims did not accrue until after Erie won summary judgment in the declaratory judgment action (when Lee’s Café allegedly sustained an “actual injury”), despite the several times preceding that date when Lee’s Café was put on notice that employees were not covered under the Erie policy. The court further rejected plaintiff’s argument that Lee’s Café could not bring the suit against Defendants while Erie was providing a defense in the wrongful death action. 

On appeal, the Pennsylvania Superior Court found no error by the trial court, reiterating that the loss for which coverage was sought was the March 3, 2016, murder. Moreover, as of June 14, 2018, when Erie denied coverage, all necessary elements were present to trigger a potential breach of contract claim against the defendants. The Superior Court found the breach occurred in December 2015, when the defendants allegedly failed to follow instructions and procured a policy other than that which they had been contracted to procure, and the loss occurred on March 3, 2016. At the time Erie denied coverage in June 2018, “Defendants became liable to [Lee’s Café] for breach of contract.” The court further commented that Lee’s Café failed to allege facts to show that it did not know of the alleged injury on June 14, 2018, when Erie filed the declaratory judgment action. This June 2018 filing date served as the latest discovery date of the plaintiff’s purported injury, and the statute of limitations for a breach of contract claim against the defendants arising from the procurement of the Erie policy expired on or about June 14, 2022. 

The Superior Court’s ruling clarifies and expands the general dearth of case law regarding the commencement of the statute of limitations applicable to claims against insurance brokers. Indeed, where, as here, there are multiple potential dates of notice or “discovery” pursuant to the discovery rule, the commencement date is, at the latest, the date a declaratory judgment action or other definitive coverage denial notification is tendered to the plaintiff. 

This decision is meaningful for insurance brokers, and the attorneys who defend them, as it sets forth a bright line test for suit preclusion in a currently ambiguous legal landscape. Further, the decision outright rejects the plaintiff’s theory that the claim did not accrue until Erie prevailed in the declaratory judgment action, a formality given that Erie’s coverage position was staunchly established by its reservation of rights and denial letters which preceded the declaratory judgment action filing. 

Insurance brokers should remain vigilant when an insurance customer’s claim is denied by the carrier and monitor any related coverage litigation. Doing so can assist in developing procedural defenses to a subsequent professional negligence claim asserted against the insurance professional, as well as substantive grounds for potential causation defenses.  


 

Legal Update for Insurance Agents & Brokers - February 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. 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 © 2025 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

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. 

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.

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.