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David is a member of the firm's Professional Liability Department and devotes his practice largely to insurance coverage, bad faith litigation, and the defense of insurance agents/brokers. His experience with insurance coverage matters include all lines of business including first party property, commercial liability and specialty lines policies. David provides consultation services to insurers and self-insured clients covering all aspects of New Jersey claims handling practices. Prior to joining Marshall Dennehey, David was assistant solicitor for the City of Pleasantville, New Jersey, City of Absecon, New Jersey, Northfield, New Jersey and special counsel to the Casino Reinvestment Development Authority (CRDA), as well as assistant planning board attorney for Galloway Township, New Jersey.

David is a 1990 graduate of Rutgers University (NCAS) and received his juris doctor from Claude W. Pettit College of Law at Ohio Northern University in 1994. While in law school, David received the American Jurisprudence Awards for Excellence in the study of Insurance Law, Trusts & Estates and Secured Transactions as well as making the Dean’s List.

    • Warren & Maryann Andrews v. Merchants Mutual Ins. Co., 2016 U.S. Dist. LEXIS 89997
    • Reina v. Twp. of Union, 2013 U.S. Dist. LEXIS 103406 (D.N.J. July 24, 2013)
    • Kouveliotes v. USCC Cas. Ins. Co., 2012 U.S. Dist. LEXIS 148373 (D.N.J. Oct. 16, 2012)
    • Klama v. Zuniga-Elizando et al., DOCKET NO. A-1382-09T2, 2011 N.J. Super. Unpub. LEXIS 653 (App. Div. 2011)
    • D.E. v. N. Hunterdon-Voorhees Reg'l High Sch. Dist., 2007 U.S. Dist. LEXIS 45121 (D.N.J. June 20, 2007)
    • South Jersey Family Med. Ctr. v. City of Pleasantville, 176 N.J. 184 (N.J. 2003)
    • Moore v. Acme Corrugated Box Co., 1998 U.S. Dist. LEXIS 9897 (E.D. Pa. July 6, 1998)
    • Boody v. Township of Cherry Hill et. al, 997 F. Supp. 562 (D.N.J. 1997)
    • Ohio Northern University Pettit College of Law (J.D., 1994)
    • Rutgers, The State University of New Jersey (B.A., 1990)
    • New Jersey, 1995
    • U.S. District Court District of New Jersey, 1996
    • The Best Lawyers in America®, Litigation - Insurance (2023-2027)
      The Best Lawyers list is issued by Woodward & White. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • Camden County Bar Association
    • New Jersey State Bar Association, Insurance Section
    • "Supreme Court of New Jersey Rules That Insurers Do Not Have a Duty to Defend or Indemnify for ‘Laidlow’ Claims—as Long as the Policy Includes the Correct Exclusionary Language," New Jersey Law Journal, April 7, 2025
    • "State Of The Occurrence," Defense Digest, 2012-06, Vol. 18, No. 2
    • Bad Faith and Fair Dealing in New Jersey, client seminar, May 26, 2021

Results

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Successfully Overturned $1.8 Million Judgment on Appeal in New Jersey

We successfully overturned a $1.8 million judgment on appeal in a case that involved the Laidlow exclusion in a workers’ compensation/employers liability policy. The decedent succumbed to heat exhaustion while at work, and the plaintiff alleged the death was due to working conditions the employer knew were substantially certain to lead to injury. Our client, the insurer, offered to defend the employer, but only to the extent of obtaining dismissal of the workers’ compensation claim, which was filed in the wrong forum. The insured rejected the offer, and suit for the injury and coverage claims commenced. At summary judgment, the trial court refused to apply the policy’s clear and prominent Laidlow exclusion barring all coverage for claims in the Superior Court whether alleged as negligent or intentional. The trial court entered judgment in the amount of the arbitration award and awarded defense costs for the Laidlow suit, costs of the declaratory judgment action and interest. The matter went up on appeal. After briefing, but before argument, the New Jersey Supreme Court released the Rodriguez decision, which validated our client’s position on application of the Laidlow exclusion and went even further to hold that the employer’s liability carrier has no obligation to provide a defense for the common law negligence claims filed in the Superior Court. The trial court refused to apply the principles enunciated by the appellate division in the Rodriguez decision and refused to apply the reasoning of a second unpublished appellate court decision directly on point. The trial court simply ignored the cases, reasoning they were unpublished. Prior to oral argument in our matter, the Rodriguez decision was published, and the plaintiffs abandoned the case, settling for nuisance value.

Defense Verdict Secured in Contentious Fire Loss Case

We obtained a hard fought defense verdict in a contentious case involving a total fire loss at a duplex owned by a single mother. The investigation revealed that the named insured did not reside in the home and, instead, rented the two units. The claim denial included application misrepresentations and issues related to the fact that the insured property did not meet the policy’s definition of a “residence premises.” Ultimately, the court decided that the property did meet the “residence premises” definition. We were left to try the case based on material misrepresentations and tasked with convincing the jury that a single mother, who paid her premium and suffered an accidental and total fire loss, should be precluded from recovery. The jury disregarded the sympathetic plaintiff, believed the insured lied during the investigation and applied New Jersey insurance law on material misrepresentations as instructed by the court. The plaintiff had turned down $150K prior to trial.

Thought Leadership

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Supreme Court of New Jersey Rules That Insurers Do Not Have a Duty to Defend or Indemnify for ‘Laidlow’ Claims—as Long as the Policy Includes the Correct Exclusionary Language

April 7, 2025

The general rule that has developed for an injured employee to proceed and prevail upon a Laidlow claim against their employer is that it must be shown that the employer either subjectively desired to harm its employee or knew that its acts were “substantially certain” to result in injury to or death of the employee.

Legal Updates for Employment Law

New Jersey Supreme Court Decides Laidlow Exclusion Is Valid

December 20, 2024

Rodriguez v. Shelbourne Spring, LLC, A-2079-22, December 12, 2024 On December 12, 2024, the New Jersey Supreme Court addressed the validity of the intentional act exclusion (Laidlow exclusion) contained in standard workers’ compensation and employers’ liability policies. The court also addressed a carrier’s duty to defend negligence-based claims filed in the Law Division under Part One (statutory compensation benefits) or Part Two coverage (employers’ liability) of standard policies.  In Shelbourne, the claimant filed and received workers’ compensation benefits for a work-related injury. The claimant then filed a personal injury suit in the Law Division, alleging what is commonly known as a Laidlow claim. As the standard practice is known, the plaintiff’s attorney included allegations of negligence, along with the Laidlow claim, in an effort to bring the carrier in to defend given the allegations of negligence.  The New Jersey Supreme Court held, in a unanimous decision, that there is no duty to defend the negligence claims—whether alleged as a simple, gross or reckless conduct—under Part One and that the C4 and C5 exclusions (as amended and approved by the New Jersey Compensation Rating & Inspection Bureau in 2007) barred coverage for the negligence and substantially certain clams (Laidlow).  The court rejected the notion that the Laidlow exclusion violated public policy. In doing so, the court distinguished older cases that did not address the amended exclusion.  A more comprehensive analysis of the decision and its greater impact will appear in the March 2025 edition of the firms’ newsletter Defense Digest.    New Jersey Legal Update – December 20, 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.

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Firm Highlights

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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. 

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Marshall Dennehey Welcomes Special Counsel David Farkouh and Michele P. Rannie to New York City Office

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Marshall Dennehey Welcomes Special Counsel David Farkouh and Michele P. Rannie to New York City Office

Four Marshall Dennehey Attorneys Selected 2026 “Top Lawyers” by Delaware Today Magazine

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Four Marshall Dennehey Attorneys Selected 2026 “Top Lawyers” by Delaware Today Magazine

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Marshall Dennehey Announces 2027 Pennsylvania Super Lawyers and Rising Stars Honorees

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Marshall Dennehey Announces 2027 Pennsylvania Super Lawyers and Rising Stars Honorees