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Results

  • Summary Judgment Obtained in Contractual Indemnity and Defense Case

    We obtained summary judgment in favor of our client on the plaintiff’s general contractor’s contractual indemnity and defense claims. The general contractor claimed it was owed defense and indemnity under its subcontract with our client. In a prior proceeding, the court entered judgment in favor of the owner against the general contractor for breach of contract and breach of warranty but rejected the owner’s claims of negligence and violation of the Florida Building Code. The court agreed with our arguments that the general contractor was estopped from bringing its contractual defense and indemnity claims against the subcontractor because there was a prior judicial determination that neither the general contractor nor our client was negligent, and the general contractor’s liability was based on its breach of contract and warranties. The court further agreed that the general contractor could not show that the subcontractor was negligent, where it had taken the position that there was no negligence in the construction and it did not present any affirmative evidence to support a claim of negligence on the part of the subcontractor.   

  • Florida Court Affirms Arbitrator’s Decision in Construction Defect Case

    We successfully upheld an arbitrator’s ruling in a $13 million construction defect case, defeating claims that our client negligently recommended windows and doors for a coastal Florida home. The owners’ direct claims against the general contractor and our client, the window and door supplier and installer, were arbitrated. The owners claimed the window company misrepresented the fitness of the windows and doors for use in Florida’s coastal environment. We argued that the windows and doors were specified by the owner and architect and that our client performed proper due diligence by visiting the manufacturing facility and consulting with the manufacturer’s engineers with regard to the application. The arbitrator found no liability as to our client because there was no evidence it was negligent in its recommendation of the product.

  • Successfully Obtained a Motion to Dismiss in A Data Breach Class Action Case

    We obtained a motion to dismiss in a data breach class action arising out of a ransomware attack against a hospital network. The attack compromised personal information of over 90,000 patients. In state court, our motion to dismiss was granted for lack of standing. The state court also granted our motion as to each cause of action for failure to state a claim on the basis that no implied contract existed with the entities for privacy protection and the negligence claims were not available under Florida law.

  • Complex legal malpractice action dismissed.

    We obtained an order of dismissal through pretrial motions in a complex legal malpractice action heard before the United States District Court. It arose out of an underlying first-party coverage action that involved hundreds of thousands of dollars in connection with building damage caused by Hurricane Sandy. The plaintiffs filed a complaint against our clients, certain individuals and a law firm, alleging claims for legal malpractice.  Our motion for summary judgment filed on behalf of the defendants asserted that an order for dismissal should be entered because: (1) the plaintiffs’ expert failed to offer an opinion on causation and damages; (2) the individual claims of the plaintiffs should be dismissed since the plaintiffs did not establish an individual claim; and (3) the plaintiffs failed to come forward with proofs to satisfy the punitive damages standard in New Jersey. The court granted our motion for summary judgment.   

  • No Valid Trademark Claim; Verdict is Dismissed

    We obtained the dismissal of a former employee accused of trademark infringement. A spray foam insulation company brought a claim for trademark infringement against a former employee. The plaintiff claimed that it had used the mark in connection with its business for over eight years, thereby establishing secondary meaning of the mark in connection with spray foam insulation in the New Jersey market. The plaintiff further alleged the defendants used the mark in marketing and promoting their competing spray foam insulation business in New Jersey. There was no valid claim against our client as there were no facts pled to support the threshold issue, that the plaintiff held a protectable mark. The complaint pled only conclusory allegations that the mark had secondary meaning, and there were no allegations that our client had any interest in the allegedly offending mark.

  • Successful Defense of Condominium Association Board and Property Manager

    The lawsuit was brought by 54 condominium unit owners of a 608-unit, age-restricted planned development against the homeowner’s association board, the property manager and the sponsor/developer, for the early transfer of control of the condominium association. Dismissal of the board and the property manager was granted in what was properly a unit owner-sponsor/developer dispute over control of the association. The unit owners alleged that the sponsor/developer was no longer offering new units for sale; rather, they were only renting units, thereby triggering the turn-over provisions in the by-laws. No claims against either the board or the property manager were properly pled in the complaint. Accordingly, the complaint was dismissed as to both.

  • Summary Judgment in a Complex Third-Party Coverage Action

    The declaratory judgment complaint was filed against the landlord that leased three quarries to the insured tenant. The landlord sued its tenant for breach of contract and environmental clean-up costs. The landlord sought coverage as an additional insured to the tenant’s CGL policy. The insurer denied coverage. The court granted our motion for summary judgment in favor of the insurer, agreeing that the counterclaims alleged intentional acts that were not occurrences as defined in the policy, nor did the claims fall within the personal or advertising coverage under the policy. The court further held that, even if coverage were found, it is limited to such damage or injury “caused in whole or in part by the insured’s acts or omissions or the acts or omissions of those acting on the insured’s behalf in the performance of its ongoing operations for the additional insureds.” In light of this clear language in the policy, it follows that coverage was denied because the counterclaims were based solely on the acts or omissions of the landlord, not on the acts or omissions of the tenant or those acting on its behalf. Lastly, the court agreed that there would be no coverage available to the landlord as exclusions apply.

  • Finance Company Dismissed from Complex, Multi-Million Dollar Lawsuit

    Secured a discontinuance for a multi-national auto financing company in a Chancery Division action in New Jersey arising out of claims by a potential franchisee against a dealership, the vehicle manufacturer, the financing company and a potential third-party buyer. The plaintiff's claims sought over $30 million in damages stemming from alleged violations of the New Jersey Franchise Act, breach of contract claims, tortuous interference allegations and a companion declaratory judgment action. The case involved the exchange of over half a million documents and extensive ESI discovery concerning sensitive consumer credit evaluations, personal net worth summaries, proprietary franchise statements, environmental impact studies, internal board meeting minutes, cell phone records, emails and due diligence materials, all subject to an order of confidentiality. The discontinuance was instrumental in clearing the path for the client to secure a key financing agreement with a new franchisor in a multi-million dollar dealer purchase. The settlement with the potential franchisee did not involve any contribution by the client.

Firm Highlights

Thought Leadership

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.

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.