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Westchester

Marshall Dennehey established its Westchester County office - the firm's third office in New York State - in July 2014. Our key Westchester County location complements and expands upon the firm's existing offerings in Manhattan and Melville, Long Island.

Marshall Dennehey's expansion in New York is precipitated by the considerable growth of Westchester and the surrounding community as a regional commercial center over the past few decades. The county serves as a vibrant cross-section of business operations for numerous companies headquartered in Manhattan and across the Northeast corridor.

The Westchester office services clients in the county and throughout the entire New York Tri-State region. Staffed with attorneys in our Casualty, Health Care and Professional Liability Departments, the office's lawyers represent clients in all manner of civil defense litigation including premises, product and general liability; medical and dental malpractice defense; and professional liability matters.

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Legal Updates for Insurance Agents & Brokers

New York Court Rejects Tolling Argument in Negligent‑Procurement Suit Filed After Coverage Litigation

May 7, 2026

Johnson v. Northeast Agencies, Inc., 242 A.D.3d 414 (1st Dep’t 2025) One of the recurring challenges in professional liability litigation—especially in claims against insurance brokers—is determining exactly when a claim “accrues” for purposes of the statute of limitations. The case of Johnson v. Northeast Agencies, Inc., 242 A.D.3d 414 (1st Dep’t 2025), presented a twist on this familiar issue. It raised the question of when the statute of limitations began to run on a negligent‑procurement claim against an insurance broker. In this case, a claim under a general liability policy was made in March 2018, following the commencement of a personal injury action against the owner of a rental property. A month later, the insurer issued a disclaimer of coverage, explaining that, among other reasons, the property where the injury occurred was not listed as an “insured location” under the policy. Ordinarily, such a disclaimer would start the clock on any negligent‑procurement claim against the broker, but here, despite disclaiming coverage, the insured was not immediately negatively impacted by the coverage disclaimer because the insurer agreed to provide a defense to the insured while the parties litigated the validity of the disclaimer in a separate declaratory judgment action. Eventually, the court in the declaratory judgment action upheld the insurer’s disclaimer, confirming that the property was indeed not an insured location under the policy. Only after that ruling—more than five years after the original disclaimer—did the insured file suit against the broker for negligent failure to procure the requested coverage.  However, the statute of limitations for negligent failure to procure claims in New York State is three years. The insured argued that the insurer’s continued defense during the declaratory judgment action effectively masked the significance of the disclaimer and should be treated as tolling the statute of limitations. The insured contended that it was reasonable to wait for the outcome of the coverage litigation before pursuing a claim against the broker, because the insurer’s defense created uncertainty about whether the disclaimer would ultimately stand. Both the trial court and the Appellate Division rejected this argument. The courts held that the claim accrued when the disclaimer letter was issued, because that was the moment the insured was placed on notice of the broker’s alleged negligence. The insurer’s voluntary defense during the declaratory judgment action did not create ambiguity about the disclaimer or delay the accrual of the claim.  Going forward, insureds will likely not wait for a final coverage determination before pursuing a negligent‑procurement claim against insurance brokers. Insureds who prefer to wait for the outcome of a coverage dispute will need to secure tolling agreements to avoid losing their claims against brokers due to expired statute of limitations periods.

Case Law Alerts

Court Limits UIM Recovery to Named Insured After Plaintiff Seeks Additional Household Coverage

April 1, 2026

The plaintiff, a resident of Erie County, New York, was legally traversing a four-way stop intersection when his vehicle was struck by a tortfeasor after she ran a stop sign. As a result, the plaintiff sustained extensive and severe injuries requiring medical care for the rest of his life. This medical care was valued far in excess of the tortfeasor’s auto insurance policy, as well as the plaintiff’s own underinsured motorist coverage. After settling with the tortfeasor for her New York State minimum policy limits, the plaintiff attempted to collect underinsured motorist coverage under both his own auto policy and his parents’ auto policy, as he still lived in their home, despite that the vehicle involved in the collision was being insured only under his own policy. The defendant insurance company argued that the plaintiff was only entitled to the remining funds under his own underinsured motorist policy. Upon the refusal to pay out funds pursuant to the parents’ underinsured motorist policy, the plaintiff brought an insurance bad faith claim against the defendants. After extensive discovery, the plaintiff dropped his bad faith claim and accepted the funds remaining under his own underinsured motorist policy, thereby avoiding a trial and additional exposure of more than triple the ultimate settlement amount.

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Summary Judgment Won in Nearly Decade-Long Slip and Fall Case

We won summary judgment on nine-year-old supermarket slip and fall case. The plaintiff claimed that she tripped and fell on the corner of a pallet/box of watermelons in the defendant's produce section in Newburgh, New York, where customers first walk in. The plaintiff admitted she did not see the pallet or its corner and was not looking where she was walking. After her fall, she underwent multiple surgeries, including cervical fusion. Her attorney’s demand was $4 million. The defense motion argued that the watermelon pallet was a temporary merchandise display which was open and obvious to all to be seen with common sense. Indeed, customers walked by the pallet display before and after the plaintiff’s accident at a rate of dozens per day. The store put the watermelons out in this manner as part of its display policy because the melons are delivered in cartons on pallets that cannot be taken apart. The plaintiff argued in opposition that the pallet was a hazardous defect the store created and had notice of. The plaintiff submitted an expert engineer, who claimed the display violated American Society of Testing Materials’ (ASTM) designation F1637-10 regarding safe walkway surfaces. We submitted a rebuttal engineer, who demonstrated the ASTM standard asserted by the plaintiff applied to permanent structures—like floors and buildings—not the temporary pallet, and that the standard did not exist on the day of the accident. In granting summary judgment, the court concluded that while a landowner must act reasonably in maintaining its property in a reasonably safe condition, it is not an insurer of ordinary obstacles that are readily apparent as a matter of common sense and visibility.

Emotional Distress Claims Barred in Case Where Dog Was Run Over by Delivery Truck

The plaintiff pet owners brought claims of emotional/bystander distress and recklessness against the delivery service after personally witnessing the incident that tragically killed their family dog. We filed a Motion to Strike (equivalent of 12b(6) in State of Connecticut Superior Court, Judicial District of Fairfield at Bridgeport), citing appellate authority that, because dogs are personal property and bystander distress arises out of human-to-human relationships, plaintiffs were barred from alleging and recovering any kind of emotional distress damages. Only the fair market value purchase cost of the pet should be permitted. The plaintiffs cited recent trial court decisions allowing such claims and going against the grain of older appellate cases. After oral argument the court sided with the defense, agreeing that for important policy concerns the plaintiff cannot prevail because the plaintiffs were asking the court to legislate and make law beyond its authoritative powers.

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Firm Highlights

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Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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

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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Complete Victory Obtained in a Workers’ Compensation Matter

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Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

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Defense Victory Obtained in Workers’ Compensation Case

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Result

Summary Judgment Obtained in Insurance Coverage Case