.

David M. Farkouh

Special Counsel

DMFarkouh@mdwcg.com

Portrait of David M. Farkouh

David is a member of the Professional Liability Department, focusing his practice on insurance coverage litigation, coverage counseling, and the defense of bad faith claims. He represents national and global insurers in complex first party and third party coverage disputes, guiding matters from coverage analysis and reservation of rights through declaratory judgment actions, dispositive motions, appeals, and strategic resolution. David has extensive experience handling the risk transfer issues arising from New York construction accident and Labor Law claims, including additional insured coverage, coverage priority disputes, contractual indemnification, antisubrogation issues, disclaimers under New York Insurance Law § 3420, and OCIP and CCIP wrap-up programs.

Prior to joining Marshall Dennehey, David spent more than 20 years practicing exclusively in insurance coverage groups at prominent New Jersey and New York firms. His experience includes serving as lead coverage counsel for a major insurer in a seven-year, $100 million-plus coverage dispute stemming from an international agribusiness company's herbicide liability to regional water districts. He has also handled PFAS, CERCLA, and other long-tail environmental coverage matters, as well as class actions involving significant coverage issues.

Throughout his career, David has represented insurers in hundreds of litigated and non-litigated matters, including high-exposure and nine-figure coverage disputes across the country. He has advised and litigated coverage issues involving commercial general liability, excess and umbrella, environmental and pollution, professional liability, D&O, E&O, employers' liability, commercial auto, commercial property, contractors' liability, and business interruption policies. His practice regularly involves complex questions concerning the duty to defend and indemnify, additional insured status, policy exclusions and manuscript endorsements, self-insured retentions, allocation of long-tail liabilities, and bad faith and failure-to-settle claims.

David graduated from Rutgers College in 2001. He earned his juris doctor from Seton Hall University School of Law in 2004. Following law school, he served as a judicial law clerk in the Appellate, Chancery and Law Divisions of the Superior Court of New Jersey. 

David was born in New York, raised in Brooklyn, and lives on Staten Island with his two children.

David is admitted to practice in New York and New Jersey.

    • Seton Hall University School of Law (J.D., 2004)
    • Rutgers, The State University of New Jersey (B.A., 2001)
    • New Jersey, 2004
    • New York, 2005
    • U.S. District Court District of New Jersey, 2004
    • U.S. District Court Southern District of New York, 2007
    • U.S. District Court Eastern District of New York, 2007
    • U.S. Court of Appeals 2nd Circuit, 2011
    • U.S. Court of Appeals 3rd Circuit, 2011

    • The Best Lawyers in America©, Insurance Law (2024-2027)

    • New Jersey Super Lawyers Rising Stars, Insurance Coverage (2013-2019)

    The Super Lawyers list is issued by Thomson Reuters. 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.

    • Obtained summary judgment for a CGL insurer that it owed no duty to defend or indemnify under its policy for the underlying construction accident claims, and defeated the insured's motions for reconsideration and for certification of an interlocutory appeal. In a separate opinion in the same action, obtained summary judgment for the affiliated employers' liability insurer that it owed no duty to defend or indemnify the subcontractor insured for the purely economic damages sought from it, which fell outside the risks covered by an employers' liability policy. 

    • Obtained dismissal of a bad faith claim before discovery, and later court approval of a class action settlement, for an auto insurer in a putative class action regarding the PIP limits available under its New Jersey automobile policies. 

    • Obtained summary judgment enforcing the financial services exclusion in commercial general liability policies, and its affirmance on appeal. 

    • Briefed the successful defense on appeal of a judgment that a shipping company failed to establish the material terms of a lost marine protection and indemnity policy alleged to cover underlying asbestos claims. 

    • Obtained summary judgment for CGL and umbrella insurers against a curtain wall subcontractor's claims for defense and indemnity of latent construction defect claims at a casino project. 

    • Briefed and argued the motion that obtained summary judgment establishing the duty to defend on a primary and noncontributory basis under a subcontractor's manuscript additional insured endorsement in litigation arising from a construction site wrongful death.

    • Argued and obtained summary judgment finding that a commercial auto insurer owed a defense to an owner and general contractor under a wrap up program. 

    • Served as lead coverage counsel for a major insurer in a seven year, $100 million plus coverage dispute arising from an international agribusiness's herbicide liability to regional water districts, involving sudden and accidental and absolute pollution exclusions, allocation of long tail liabilities and the law of numerous jurisdictions, and briefed summary judgment on whether the pollution exclusions applied as a matter of law. 

    • As lead counsel for a major insurer, argued and obtained the denial in part of an insured's motion to compel discovery of the geographic and customary rates the insurer paid to defense counsel, substantially limiting the required disclosures subject to confidentiality protections. 

Firm Highlights

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

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.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

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.