.

Legal Updates for Lawyers' Professional Liability

Legal Updates for Lawyers’ Professional Liability - RESULTS & THOUGHT LEADERSHIP*

Legal Updates for Lawyers’ Professional Liability – November 2023

November 1, 2023

LAWYERS' PROFESSIONAL LIABILITY RESULTS

Jack Slimm (Mount Laurel, NJ) obtained an order from the Superior Court in Burlington County, New Jersey, on the eve of trial granting our motion to dismiss in a multiparty, complex legal malpractice action. This suit was filed against a court-appointed administrator of an estate, the sellers of the property, the beneficiaries of the estate, and the estate itself. The case involved two actions in the Chancery Division, two actions in the Law Division, and an appeal arising out of the same, all involving claims for breach of contract, breach of fiduciary duty, negligence and legal malpractice against the administrator. The case was filed because the property was contaminated. It was alleged the estate and the administrator knew or should have known about the unlawful dumping but ignored those activities, allowed the property to become damaged, and kept the information about the contamination from the plaintiff’s beneficiaries. However, the court found that the claims against the lawyer/administrator were barred because in the underlying probate action, the court had held that the administrator fulfilled his duties and was discharged from all duties and obligations under New Jersey’s Probate Code. Accordingly, the court dismissed the Law Division action based upon the Entire Controversy Doctrine, res judicata, collateral estoppel and judicial estoppel.

Carly Edman (Pittsburgh, PA) obtained a dismissal of a plaintiff’s legal and accounting malpractice claims in the U.S. District Court for the Western District of Pennsylvania. The plaintiff filed suit against a number of defendants as a result of tax liability stemming from a prior unrelated legal settlement. The plaintiff claimed that our attorney client was negligent in providing legal and accounting advice in regard to corrective tax filings following a legal settlement with a state entity. The plaintiff asserted claims of legal malpractice, accounting malpractice, fraud and a host of constitutional violations. Carly sought dismissal via a number of arguments, including a lack of subject matter jurisdiction. After multiple rounds of amended pleadings and briefing, the court entered an order adopting our jurisdictional argument and dismissed the plaintiff’s latest complaint without prejudice based upon a Rule 8 violation for his failure to plead a proper jurisdictional basis. While the dismissal order was without prejudice, the running of the statute of limitations resulted in our client obtaining the win. 
 
Nicholas Chrysanthem (New York, NY) received a “no further action” letter on a grievance where the attorney was accused of a conflict in helping the client’s adversary in a litigation after the attorney was terminated in his role as counsel. 
 
*Prior Results Do Not Guarantee a Similar Outcome

 

LAWYERS' PROFESSIONAL LIABILITY THOUGHT LEADERSHIP

September 8, 2023 - Jeremy Zacharias (Mount Laurel, NJ) presented at the New Jersey ICLE’s “Commercial Real Estate: From Handshake to Closing Seminar.” Jeremy’s topic pertained to ethical considerations in handling commercial real estate transactions. He discussed the implications of the Rules of Professional Conduct on certain real estate transactions, including multiple representations, dealing with unrepresented parties, and practical pointers when facing a motion to disqualify when an attorney handles multiple representations in a commercial real estate deal. This presentation was well attended by members of the Bar, and Jeremy discussed the importance of assessing the Rules of Professional Conduct in everyday practice.

September 15, 2023 - The Legal Intelligencer published “You Diligently Protect Your Clients; What About You? Part 2 (The Middle and the End)” written by Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA). You can read their article here.

September 21, 2023 - Dana Gittleman’s (Philadelphia, PA) article “Trying the PL Case: Lessons Learned in the Courtroom” was published on the PLUS Blog. You can read Dana’s article here.

September 29, 2023 - Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA) were featured speakers at the Professional Liability Defense Federation (PLDF) annual meeting in Denver on September 29. They were part of a panel titled “Defending and Avoiding Disciplinary Complaints.”

October 2023 - Scott Eberle (Pittsburgh, PA) presented “Ethics Issues in Auto Law" at the Pennsylvania Bar Institute's Auto Law Update webinar.

November 1, 2023 - Josh J.T. Byrne (Philadelphia, PA) joined a Pennsylvania Bar Institute panel to present a CLE on ethical use of social media for attorneys.

November 8, 2023 - Scott Eberle (Pittsburgh, PA) presented “Avoiding Legal Malpractice” to members of the Beaver County Bar Association.

 

 

Legal Update for Lawyers’ Professional Liability – November 2023 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 © 2023 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

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

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

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

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case