Professional Liability

Several police cadets were not allowed to take the state licensing exam after the municipality learned that those cadets had been cheating to complete academy requirements. The cadets were referred for disciplinary charges and then terminated. They brought suit, alleging due process violations for allegedly holding sham post-disciplinary hearings, predetermining termination, and not allowing them access to the evidence against them. Select plaintiffs also alleged racial discrimination. The plaintiffs' entire suit was dismissed on summary judgment when the Northern District of Ohio found that the plaintiffs had not completed their probationary period and, thus, did not have a property interest in their employment with the municipality. The court further found that the municipality's decision to terminate the employees for failure to take the state test was a reasonable decision and did not violate their substantive due process rights. Finally, the plaintiffs were unable to present any evidence to support a racial discrimination claim.

We successfully defended a superintendent of a Pennsylvania School District. The elementary teacher plaintiff was disciplined following an investigation into allegations that she struck a student. The plaintiff raised claims against the superintendent for intentional infliction of emotional distress, loss of consortium, and violation of procedural due process. The defense argued that, as a superintendent, he was afforded high public official immunity and, therefore, the court dismissed the intentional infliction of emotional distress claim. The court also dismissed the loss of consortium claim as it was a derivative claim of the intentional infliction of emotional distress claim. The court further held that the plaintiff was not deprived of her procedural due process rights, as she was given the opportunity through the teacher's union to arbitrate a grievance over her suspension. Consequently, the court dismissed the plaintiff's complaint, with prejudice. 

We obtained summary judgment in a legal malpractice action in the Philadelphia Court of Common Pleas. The plaintiff, a Philadelphia police officer, was arrested after failing to appear in court following a hit-and-run car accident involving his motor vehicle. After proving that he was not the driver of the vehicle, the charges were dismissed. The plaintiff then sought damages from the township, police department and individual police officers for alleged violations of his civil rights. Our client, an attorney, represented the plaintiff in connection with responding to summary judgment and appealing the dismissal of his civil rights claims. When the dismissal of the plaintiff's claims was affirmed, he sued the attorney for alleged malpractice. We successfully argued on summary judgment that the plaintiff's claims were time-barred and failed as a matter of law because the plaintiff could not have prevailed in the underlying litigation. In fact, the plaintiff brought similar civil rights claims in three separate lawsuits, all of which failed. The court agreed, dismissing the legal malpractice claims as time-barred and further stating that, even if they were not barred by the Statute of Limitations, the plaintiff's claims failed as a matter of law because he cannot demonstrate that he would have prevailed but for something the attorney did or failed to do.

​The plaintiff was a high school junior who alleged he was physically abused by a special education teacher. He sued the teacher, the school district and several administrators, alleging violation of the New Jersey Law Against Discrimination, the Americans with Disabilities Act, the New Jersey Civil Rights Act and the New Jersey Anti-Bullying Statute. After a long period of discovery and many depositions, the court granted our summary judgment motion. 

On the eve of trial, we obtained summary judgment for our attorney-client, dismissing a complex legal malpractice case in which damages were sought in connection with the underlying land transaction. ​This case included allegations that our client had multiple conflicts. The plaintiffs’ claim for damages included an allegation of $8 million in lost profits due to our client advising the plaintiffs to sell out of this business deal early, while another client of the attorney made $40 million in this deal! We were successful in obtaining dismissal by demonstrating that the plaintiffs’ experts could not prove their lost profit claim due to New Jersey’s New Business Rule and due to the fact that they could not prove any out-of-pocket damages in this case.

We obtained summary judgment in favor of our insurance company client. The plaintiff sought UIM coverage from our client as a resident relative of the client’s named insured. The plaintiff was a named insured on another policy which provided UM/UIM coverage. The court granted our motion for summary judgment based upon an exclusion in the client’s policy that excluded UIM coverage for any family member if that family member is a named insured on another policy providing UM/UIM motorists coverage. The court found this exclusion to be clear and unambiguous and to reasonably inform the plaintiff that he was not entitled to UIM coverage under the policy. The court rejected the plaintiff’s argument that the exclusion was vague, ambiguous and unenforceable.

We obtained summary judgment in favor of a borough, its police chief, a detective, a lieutenant and a school resource officer in a civil rights lawsuit. ​The plaintiff, a local high school teacher, alleged that no probable cause existed to charge him with witness intimidation, arising from an alleged incident involving a female student who was a victim of institutional sexual assault by another teacher. In its opinion granting summary judgment, the court determined that the Affidavit of Probable Cause, which was the basis for charges against the plaintiff, was supported by the evidence at the time the affidavit was prepared. The court also held that, because no violation of Section 1983 existed, all claims against the individuals and the municipality must be dismissed. Finally, the court ruled that the individual defendants enjoyed qualified immunity because no constitutional violation existed.

Defense award in a binding FINRA arbitration in Boca Raton, Florida on behalf of a broker-dealer. ​The broker-dealer was sued in arbitration by two retired broker claimants who sought $5 million in past and future benefits, under a retirement program that paid override fees to retired brokers on books of business they had developed decades ago.

We defended an insurance agency and agent in the Twelfth Appellate District of Ohio. The plaintiffs contacted the insurance agent to obtain insurance for two residential properties. The agent obtained the requisite information for the insurance applications from the plaintiffs, including their primary mailing address, a post office box address. The agent advised them that their only insurance option was through the Ohio Fair Plan (OFP), as neither property had been insured in the prior three years. The plaintiffs gave the agent a check for the premium. The agent explained that the OFP would inspect both properties prior to issuing coverage and that coverage would be cancelled if any required repairs were not made. The OFP sent a notice of cancellation to the post office box listed on the insurance application. It also sent a refund check to the agent. The plaintiffs claimed that they never received the notice of cancellation or the refund check. They sued OFP, the agent and insurance agency. After written briefs and oral argument, the court of appeals affirmed summary judgment in favor of the agent and agency on the grounds that there was no evidence that the agent represented to the plaintiffs that the property had insurance coverage prior to a fire at one of the properties. Further, although the plaintiffs claimed that they never received notice of cancellation, the insurance application indicated that they would be informed directly from the insurer whether or not coverage was going to be provided. Therefore, the agent was not required to inform the plaintiffs of the cancellation. The court also held that the plaintiffs failed to present any evidence the agent fraudulently concealed the refund check from them, even if they did not receive the check.

We obtained dismissal of the plaintiff’s complaint and all cross claims against our client, a commercial plumbing contractor, on a motion for summary judgment in a construction defect case. ​The case involved claims by a homeowners association for property damage and replacement costs allegedly in excess of $6 million as a result of construction defects in the design and installation of plumbing, water collection, drainage, grading, and other water runoff and drainage systems. In addition to our client, the named defendants were the project architects, the general contractor, various plumbing, electric, concrete and grading trades, and the water and electric utilities, all of whom asserted cross claims. We were granted summary judgment on grounds that the plaintiff’s breach of contract claim failed due to lack of privity and proof that the plaintiff was not a third-party beneficiary of our subcontract. All claims and cross claims for negligent installation/breach of warranty were dismissed upon proof that our client’s work was performed in accord with project specs and in accord with the applicable building code, and that none of its work contributed to any drainage issues or resulting property damage.

We obtained summary judgment in favor of a town and several of its police officers in an excessive force and malicious prosecution case in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff and his family were in Bloomsburg the night before his daughter’s graduation when he got into a fist fight with a bar owner. The owner suffered significant injuries and the plaintiff fled the scene. He was spotted a short time later by one of the defendant officers, pursued and arrested. The plaintiff was charged with disorderly conduct, harassment, simple assault and aggravated assault. Following the criminal trial, the plaintiff was found not guilty. He then sued our clients—the town and several officers—for excessive force and malicious prosecution. The plaintiff’s wife also sued, alleging loss of consortium and emotional distress. The wife’s claims were dismissed via a motion to dismiss. Following the close of discovery, motions for summary judgment were filed on behalf of our clients. The court granted our motions, finding the existence of probable cause as a defense to claims for malicious prosecution and wrongful arrest. The court also found that the arresting officer acted reasonably during the pursuit and detention of the plaintiff.

We obtained the dismissal of a legal malpractice/fraud action brought by a nursing home against an attorney who represented a patient and who assisted the patient in the admission process. The owners of the nursing home claimed the attorney misrepresented his client’s assets in the application and that the nursing/assisted living facility relied on that representation in admitting the patient. However, the patient had previously filed an action against the nursing home for consumer fraud, and that case was still pending when the nursing home filed the legal malpractice/fraud action against the patient’s attorney. The defense argued that the legal malpractice/fraud action was barred under New Jersey’s Entire Controversy Doctrine. The court agreed and dismissed the legal malpractice action, with prejudice.

We obtained summary judgment in a legal malpractice action in Lancaster County. We represented a law firm in the defense of legal malpractice cross-claims arising during underlying litigation. The plaintiff, an environmental consulting company, sued landowners for allegedly withholding information relevant to the clean-up of gasoline spill(s) on the landowners’ property. The landowners sued their attorneys, our clients, claiming that any liability on their part was due to malpractice committed in negotiating the contract between the landowners and the consultant. We successfully argued on summary judgment that the consulting company knew or should have known the allegedly withheld information years earlier, based largely on testimony obtained during the plaintiff’s deposition. The court agreed, dismissing not only the legal malpractice claims due to lack of causation, but also the consulting company’s claims against its former clients on the basis of the statute of limitations.

The parties had filed cross-motions for summary judgment. The issue for the court was whether the carrier had breached the terms of the policy when it denied the plaintiff’s first-party benefits claim relating to medical bills for PTSD allegedly caused by the underlying accident. The policy defined “bodily injury” as “accidental bodily harm to a person, and that person’s resulting illness, disease or death.” The plaintiff argued that, because she had sustained both physical and mental injuries as a result of the accident, the treatment related to both types of injuries and should be covered. The defense argued that, per the policy and controlling case law, mental injuries are only covered if they “result from” the physical injury. Because the PTSD stemmed from the plaintiff’s fear of driving following the accident—as opposed to mental injuries that resulted directly from the physical injuries—the defense asserted that they are not covered. The court agreed with the defense and found that the language of the policy was clear and unambiguous. It found that the Superior Court’s holding in Zerr v. Erie Ins. Exchange controlled and that the plaintiff had failed to provide evidence that her mental injuries resulted from her bodily injuries. Absent that connection, there was no coverage for the PTSD, regardless of any collateral physical injuries sustained in the accident.

Our appellate attorneys were retained shortly before trial. While driving our client’s truck, an employee struck a car from behind that had stopped in the middle of the road after its hood flew open. The collision injured three members of a family and killed a six-year-old child. The Superior Court vacated the judgment and remanded for a new trial on the basis that the trial judge had improperly granted summary judgment to several vehicle repair shops, all of whom knew of but failed to repair the condition that made the car’s hood fly open.

We obtained summary judgment in a putative class action lawsuit in the Eastern District of Pennsylvania on behalf of a large insurer. The case dealt with a letter the insurance carrier would send to their insureds following a motor vehicle accident in which they advised their insureds that they would have a rental vehicle for five days. The named plaintiffs argued the letter misrepresented the policy language and they sued for breach of contract, bad faith, declaratory judgment and equitable relief. Per the insurer’s request, the court agreed to stay class action discovery so that the insurer could file a dispositive motion as to the named plaintiffs, which, if granted, would dispose of the entire putative class action case. In its motion for summary judgment, the insurer argued that the named plaintiffs could not meet their individual burdens of proof since it was undisputed they had a rental vehicle for 23 days and had returned the rental the same day they picked up their newly purchased vehicle. The court agreed and granted the insurer’s motion for summary judgment in its entirety and dismissed the action. The court reasoned, in part, that the named plaintiffs’ alleged damages were speculative and that issuance of the rental letter did not constitute a breach of the policy since the plaintiffs could not show that they were not afforded benefits to which they were entitled.

We secured the dismissal of a declaratory judgment action filed in federal court against a large insurer. This case arose from a motor vehicle accident that occurred in 2015. The plaintiff averred that she had sustained injuries in excess of the tortfeasor’s bodily injury liability limits and sought stacked underinsured motorist (UIM) benefits. While the plaintiff had admittedly signed a rejection of UIM coverage form and a rejection of UIM coverage stacked limits form, she argued that her insurer had altered the statutorily required forms by adding additional language. The plaintiff filed a declaratory judgment complaint against her insurer. We filed a motion to dismiss the complaint on behalf of the defendant, which was granted by the federal court. The court reasoned that the UIM rejection form “specifically complied” with the applicable requirements of Pennsylvania’s Motor Vehicle Financial Responsibility Law because the additional language, contained on the same page as the statutorily required rejection language, was “inconsequential.”

Defense verdict after a four-day jury trial in northeastern Pennsylvania on behalf of a registered investment advisor and a securities broker dealer who were sued by their former client for investment losses in alternative investments.

We obtained a dismissal in the U.S. District Court for the District of New Jersey in an extremely complex, multi-party legal malpractice action. The action arose out of two estate litigations filed in state court in which our client was the attorney for the decedent and the temporary administrator. The plaintiff, the nephew of the decedent, filed a breach of fiduciary duty claim against our client in the U.S. District Court. The probate cases went against the nephew. The accountings were all approved over the nephew’s exceptions, in which he did allege that our client breached a fiduciary duty in handling the estate administration in failing to preserve documents, failing to locate the will, selling assets in contravention of his fiduciary role, failing to investigate property in the Bahamas, failing to preserve assets, and obtaining orders from the probate judges through fraud and deception. In its lengthy opinion, the District Court granted the defense’s motion to dismiss all claims against our client.

We obtained summary judgment on behalf of an insurance agency and insurance agent in a fraud action. Venued in Cincinnati, the case involved a dispute over the agent’s alleged failure to procure insurance coverage for a residence that sustained extensive, uncovered fire damage. The client had assisted the two homeowners in procuring insurance coverage for their residential properties with the Ohio Fair Plan Underwriting Association, an entity created by the Ohio legislature to provide insurance for property that is not insurable in the normal insurance market. After completing an inspection of the property, Ohio Fair Plan issued a notice that the carrier was cancelling the homeowners’ insurance contract. Ohio Fair Plan also issued a refund check to the homeowners. Sometime thereafter, a fire occurred at the homeowners’ residence. It was later conclusively determined that the homeowners did not have coverage with Ohio Fair Plan for the loss as a result of the cancellation of the contract. The homeowners alleged that they never received the cancellation notice or the refund check from Ohio Fair Plan or their insurance agent. The homeowners filed suit against the insurance agent and his agency, alleging claims of fraudulent misrepresentation and fraudulent concealment as a result of the homeowners’ purported failure to receive the notice or check prior to the time of the fire, which the homeowners alleged would have enabled them to procure alternative coverage. The defense moved for summary judgment, arguing that the fraudulent misrepresentation claim lacked merit because the insurance agent never misrepresented any fact relating to the homeowners’ insurance coverage and never concealed any material fact from the homeowners. The court agreed and granted summary judgment.

Obtained summary judgment in Nassau County, New York on behalf of an insurance broker in a negligence and breach of contract action. Our client allegedly failed to procure proper insurance coverage, resulting in uninsured Superstorm Sandy-related losses claimed to be in excess of  $2.3 million.  The court granted summary judgment and dismissal of the complaint, finding that the plaintiffs were unable to support its claims without non-hearsay evidence.

Secured summary judgment in federal court in a bad faith case against a large insurer. ​The case arose from a pedestrian-motor vehicle accident that occurred in 2008 and dealt with the insurer’s handling of the plaintiff’s UIM claim following that accident. The plaintiff was run over by a rollback truck that was being repossessed on behalf of the owner. Because there were conflicting versions of events regarding how the accident occurred, the case went to arbitration on the issue of liability. The arbitrators found that the plaintiff was 33 1/3% causally negligent for his injuries, and the UIM claim later settled. The plaintiff then pursued a statutory bad faith claim, contending the insurer had delayed its investigation of the UIM claim without a reasonable basis and had unreasonably refused to pay the plaintiff UIM benefits. At the close of discovery, the insurer filed a motion for summary judgment, which was granted by the court, and the case was dismissed in its entirety. 

Successfully defended a Pennsylvania real estate broker who represented the seller in a residential real estate transaction. ​The homeowner-plaintiffs claimed that the seller and our client failed to disclose certain material defects in the property prior to closing. The plaintiffs’ complaint consisted of claims against our client for negligent misrepresentation and alleged violations of Pennsylvania’s Unfair Trade Practice and Consumer Protection Law (UTPCPL) and Real Estate Sellers Disclosure Law (RESDL). In preliminary objections, the defense argued that the plaintiffs’ claims should fail as a matter of law because the complaint did not allege that our client had actual knowledge of any material defects or that our client made any misrepresentations concerning the property. The plaintiffs’ UTPCPL claim was premised primarily upon the Seller’s Property Disclosure Statement, which the court agreed did not apply to our client as our client did not prepare or sign the document, and because our client was not identified in the document as a source of any information about the property. The court dismissed the RESDL claim on similar grounds and held that the Disclosure Statement failed to identify any misrepresentation made by our client. Furthermore, the court emphasized the clear language in the RESDL, which provides that a seller’s agent shall not be liable for any violation of the RESDL unless the agent had actual knowledge of a material defect. 

Obtained a dismissal on a directed verdict in a FINRA arbitration in New York. The defense represented a broker-dealer in a dispute with its former customer regarding the unauthorized use of her account information. The claimant was a customer of one of the broker-dealer’s New York branches, where her ex-husband also worked as a broker.

Obtained a defense verdict in a legal malpractice case in Florida. Our clients, two board-certified construction lawyers, had unsuccessfully defended the plaintiff, a real estate developer for a project in West Palm Beach, Florida, in a lawsuit brought by the general contractor that ended with an adverse jury verdict of over $1 million. In the underlying lawsuit, the two lawyers pursued a litigation strategy that, upon reflection, had little chance of success. The lawyers never communicated to their client the prospect of an adverse result, at least not in writing. During the underlying trial, the judge made critical comments concerning the attorneys' preparation and made several adverse rulings, including dismissing a third-party complaint against one party, stating that the lawyer had sued the wrong party, and another ruling excluding their primary expert because the expert's opinions were not properly disclosed during discovery. Our defense focused on the theme that the legal advice and strategy the attorneys provided to their client was based on inaccurate information supplied by the client; that the client deliberately withheld critical information; that their developer was the one in control of the underlying litigation strategy; and that his own actions and trial testimony undermined his case, not the actions of his attorneys. The trial lasted 14 days; the plaintiff's case took ten and one-half days to present three live witnesses; and there were over 500 exhibits admitted into evidence. The defense case was presented in two and one-half days with testimony from four live witnesses, including the plaintiff's attorney from the underlying trial. The jury deliberated for less than one and one-half hours before returning a defense verdict on all counts.

Obtained a directed verdict on behalf of a broker-dealer and a broker in a FINRA arbitration in New York. The claimant, a sophisticated and wealthy owner of a broker-dealer, alleged that he was being charged an unreasonable mark-up on municipal bond sales. The claimant further alleged that he was the victim of elder abuse. 

Secured a discontinuance for a multi-national auto financing company in a Chancery Division action in New Jersey arising out of claims by a potential franchisee against a dealership, the vehicle manufacturer, the financing company and a potential third-party buyer. The plaintiff's claims sought over $30 million in damages stemming from alleged violations of the New Jersey Franchise Act, breach of contract claims, tortuous interference allegations and a companion declaratory judgment action. The case involved the exchange of over half a million documents and extensive ESI discovery concerning sensitive consumer credit evaluations, personal net worth summaries, proprietary franchise statements, environmental impact studies, internal board meeting minutes, cell phone records, emails and due diligence materials, all subject to an order of confidentiality. The discontinuance was instrumental in clearing the path for the client to secure a key financing agreement with a new franchisor in a multi-million dollar dealer purchase. The settlement with the potential franchisee did not involve any contribution by the client.

Successfully represented a law firm in having a legal malpractice case dismissed in the Philadelphia Court of Common Pleas.  The case involved an attorney of the law firm who had failed to respond to a motion for summary judgment in a slip and fall case.  After the case was dismissed, suit was brought against our client along with the individual attorney.  The plaintiff, well coached in the legal standard, testified that she clearly fell on hills and ridges and that if a response had been filed to the motion for summary judgment in Philadelphia Common Pleas Court, it would have been denied.  During the course of the investigation, it was discovered that photographs the plaintiff allegedly took the day of the incident did not match up with the weather conditions on record.  (The plaintiff had emailed the original photographs, which she claimed she took that day, to our client at the time they were representing her.) An investigation of the weather reports and metadata related to the photographs revealed that the photographs were actually taken much later in the week, after a significant snowfall had occurred. Presented with this evidence, counsel for the plaintiff voluntarily dismissed the lawsuit.

Attorneys obtained an order of dismissal with prejudice on a Motion for Judgment on the Pleadings on behalf of an accounting firm. Plaintiffs filed a Certificate of Merit indicating that "expert testimony is unnecessary" for prosecution of its claims. The attorneys' argued that plaintiffs could not present expert testimony on the standard of care or causation and, since the averments of the complaint taken as a whole implicated matters requiring expert testimony, plaintiffs' entire case must fail. The judge agreed and dismissed the entirety of plaintiffs' claims.

Attorneys successfully defended an accountant and his firm in a malpractice case. Plaintiff filed a malpractice counterclaim to a collection action commenced by the accounting firm, and 25 days later plaintiff filed a separate action for malpractice against the accounting firm and the individual accountant. Defense attorneys filed praecipes for non-pros for failure to timely file a Certificate of Merit as to both actions. Attorneys convinced the Court that both the negligence and the breach of contract claims alleged deviation from a professional standard and therefore both counts should be dismissed.