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Defense Digest

On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

Defense Digest, Vol. 27, No. 2, March 2021

March 1, 2021

Kimberly Boyer-Cohen (Philadelphia, PA) obtained a victory before the Pennsylvania Supreme Court. Edwin Schwartz (Harrisburg, PA) initially obtained a grant of summary judgment in the trial court in favor of the defendants on the basis that the plaintiff’s legal malpractice claims were barred by the applicable statutes of limitations and that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the plaintiff requested adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. Kim convinced the Pennsylvania Supreme Court to reject adoption of the continuous representation rule, making clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals. Clark v. Stover, 242 A.3d 1253 (Pa. 2020).

Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining an affirmance by the First District Court of Appeal of a defense verdict obtained for an owner of a commercial retail center and parking lot, in a negligent security action. A chef was taking garbage outside a restaurant when he was shot and killed. The Estate sued the owner of the building and the parking lot, as well as the defendants involved in the development, design and maintenance of the retail center. The jury returned a defense verdict in favor of all defendants. The Estate appealed, arguing that the trial court had abused its discretion in excluding subsequent evidence of remedial measures—installation of lighting, signs and cameras in the parking lot after the shooting. The First District rejected the Estate’s argument and affirmed the final judgments in favor of the defendants. Rowe v. Rowin, 306 So.3d 955 (Fla. 1st DCA Nov. 25, 2020).

Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Superior Court to affirm the trial court’s entry of summary judgment on behalf of the firm’s clients, the defendant rental agents, in a case where the plaintiff (then a minor) tripped and fell down a stairway in a rented residence where she lived with her family. The court found as to the separate defendant landlords (and generally) that, while the plaintiff claimed she fell because the first three stairs lacked a railing, she was aware of this condition and had been taught by her mother how to safely negotiate the steps. The court further found that the plaintiff did not support her allegations against the defendant rental agents with any relevant authority or develop any meaningful argument against them, as the appellate rules require. Therefore, the plaintiff failed to establish that these defendants owed her a duty. Sprouse v. Keller, et al., 2020 WL 7706808 (Pa. Super. Dec. 29, 2020).

Walter Klekotka and Walter Kawalec (Mount Laurel, NJ) were successful in defending a grant of summary judgment in the New Jersey Appellate Division. ​Our clients were the owner and manager of an apartment complex for seniors. The plaintiff was a resident who was returning from walking her dog and was entering the elevator. After the dog had already entered the elevator, the doors began to close. The plaintiff alleged injuries that occurred when the right door struck her arm and when she pushed the left door with her arm and the left side of her body enough to slow the doors closing and leap into the elevator. She sued our clients and the company hired to maintain the elevator but was unable to establish any proof of negligence. Her case was dismissed as the trial judge declined to apply the doctrine of res ipsa loquitur, in part, because she could not establish the third element of the doctrine that the injury did not result from the plaintiff’s own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published decision, concluded that the third element is well-established law in New Jersey and only the Supreme Court could eliminate it, but it has shown no inclination to do so.

George Helfrich (Roseland, NJ) and Walter Kawalec (Mount Laurel, NJ) successfully persuaded the New Jersey Appellate Division to reverse a coverage determination. The original determination had found that the plaintiff was entitled to $500,000 in coverage under her then-boyfriend’s insurance policy, rather than being limited to the $100,000 in her own policy. The New Jersey Law Division rejected our arguments that the policy did not deem the plaintiff a “covered person” because she was the named insured in her own policy, and rejected the argument that the step-down provision applied. On appeal, the Appellate Division did not agree with us that the Law Division erred in its determination that the plaintiff was a “covered person,” but it did agreed that the step-down provision applied to limit the plaintiff’s recovery to that of her own policy. Cross petitions for review were filed with the New Jersey Supreme Court, which declined to alter the Appellate Division’s decision, resulting in significant savings on the claim for our client.

*Results do not guarantee a similar result.

 

Defense Digest, Vol. 27, No. 2, March 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. 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

Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.