.

Lee C. Durivage

Chair, Employment Law

Chair, School Leaders' Liability

LCDurivage@mdwcg.com

Portrait of Lee C. Durivage

Defense Digest

On the Pulse… School Leaders’ Liability Practice Group Provides Defense, Counseling and Training Services to School Districts, Public and Private Schools And Universities

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

by Lee C. Durivage

Today’s headlines are replete with stories of lawsuits involving student-on-student bullying or sexual assault, denial of a student’s right to free appropriate public education, or violations of a student’s or educator’s due process or First Amendment rights. Those headlines often cost big money, win or lose, to school boards, public and private schools, and universities, as well as to individual administrators and educators. Every case in the school setting involves a unique set of highly-emotional facts—some arise from actual or perceived indignities suffered, constitutional or statutory rights violated, or egregious conduct that is alleged to have been ignored. In those situations, the defense matters.

Marshall Dennehey’s School Leaders’ Liability Practice Group has been representing self-insured and insurance company clients in school leaders’ liability litigation for many years. We handle all areas of claims and litigation involving school leaders and educational institutions, including claims arising under federal and state discrimination statutes, federal and state leave laws, federal due process under the Individuals with Disabilities Education Act (IDEA), Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act, state-created danger and equal protection principles, student discipline matters, educator misconduct, due process, First Amendment rights, and all manner of personal injury claims involving students or school personnel that occur during the school day or during the course of school-related activities. We regularly appear before hearing officers, the federal and state courts that sit in the jurisdictions where we have a presence, the U.S. Office of Civil Rights, the Department of Education, and administrative agencies, such as the Equal Employment Opportunity Commission and state and local human relations agencies.

Our experienced litigators approach cases proactively and strategically, making our clients’ objectives and goals primary. If early resolution is important, we leverage our expertise and familiarity with opposing counsel, hearing officers, and jurists in the jurisdictions where we practice to achieve that result. We also have significant experience in alternative dispute resolution proceedings. Otherwise, we work to obtain denial or dismissal of claims at the administrative hearing or agency level or, alternatively, through motions to dismiss or summary judgment at the trial court level. If early dismissal is not possible, we provide aggressive and effective representation at hearings or at trial to meet our client’s objectives.

Unfortunately for school leaders and educational institutions, laws and regulations governing general education and special education services to eligible students are extremely complex, and legal compliance is sometimes difficult to manage. School leaders and educators today face not only the challenge of running fiscally sound educational institutions, but they also must ensure that they remain in compliance with federal and state laws and regulations. Thus, in addition to providing our clients with vigorous representation in school-related disputes and litigation, the School Leaders’ Liability Practice Group also provides advisory/counseling services to our clients to keep them up-to-date on a range of issues affecting the the operations of schools and their educational programs.

The goal of our counseling/advisory services it to help school boards, school administrators, and educators limit or avoid litigation as much as possible. We regularly advise our clients on issues concerning statutory compliance with federal and state education laws, including those regarding special education. We also offer assistance to education professionals on issues related to investigations, discipline, and navigating alleged constitutional deprivations or civil rights violations.

Schools and universities without clear and effective policies and procedures present educational operations that are subject to risk. We work with our clients to create legally compliant, efficient, and comprehensive handbooks and student policies. The School Leaders’ Liability Practice Group also offers training programs on a full range of education-related matters, tailored to specific client needs or specific employee groups, such as administrators, teachers, and support professionals.

Representing school leaders and educational institutions requires expertise and familiarity with applicable federal and state laws that affect the provision of educational services, as well as those that require the health and safety of students and school employees. Given the complexity of the laws in this area, the best defense is partnering with lawyers who know the law, know the forum, and who understand and take a proactive approach to solving school leaders’ issues and exposures. The experienced and well-regarded attorneys in Marshall Dennehey’s School Leaders’ Liability Practice Group are those attorneys. We pride ourselves in taking care of the defense—when the defense matters—so our clients can focus on the growth, education, and development of their students and educators with the knowledge that they are in compliance with current laws and regulations. 

*Lee is the Vice-Chair of our School Leaders’ Liability Practice Group and works in our Philadelphia, Pennsylvania, office. 

 

Defense Digest, Vol. 29, No. 2, June 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, 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. 

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

State of Insurance: Q2 Notes From Pennsylvania

Thought Leadership

The Best Defense is Already in the File: Documentation in Civil Rights Litigation

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.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars