.

Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 30, No. 4, December 2024

December 1, 2024

Kimberly Berman (Fort Lauderdale, FL) and Mark McCulloch (Orlando, FL) succeeded in obtaining a per curiam affirmance in the First District Court of Appeal of a final order dismissing the plaintiff’s fire-loss subrogation claim against our client, a tenant in a leased property it insured. The First District affirmed the trial court’s finding that the specific fire-loss provisions in the lease between our client and the landlord shifted the risk of loss to the landlord; thus, our client was a co-insured under the policy, and an insurance company cannot sue its own insured. 

Kimberly Berman also succeeded in obtaining a per curiam affirmance in the Fifth District Court of Appeal of a final order of dismissal. Kimberly represented an international not-for-profit private membership organization in an action by a former member for the alleged violation of his membership in said organization. The plaintiff attempted to use a settlement agreement from a prior case to show he was in compliance with the organization’s membership requirements. The plaintiff also argued that the requirement to be a member of an underlying organization was unconstitutional because of an antiquated Florida law. Kimberly argued that: a settlement agreement could not be enforced against a third party with no privity or connection to a settlement agreement; the plaintiff failed to follow the procedural requirements to challenge the statute and, even if he did, the law was wholly inapplicable to our client; claim and issue preclusion were appropriate because the plaintiff had incorporated the issues and claims into his complaint, which demonstrated that the same set of operative facts and issues were being litigated for a third time; and the plaintiff failed to state a cause of action under the Florida Declaratory Judgment Act because the elements were not met and the court did not have jurisdiction under the Declaratory Judgment Act. The trial judge dismissed with prejudice. After dispensing with oral argument, the Fifth District affirmed the dismissal. 

Audrey Copeland (King of Prussia, PA) convinced the Pennsylvania Commonwealth Court to affirm the decisions of the Workers’ Compensation Appeal Board and a workers’ compensation judge denying penalties. The claimant alleged the employer failed to pay for medications and that the workers’ compensation judge did not properly credit Letters of Medical Necessity. Although the employer unilaterally ceased to pay the bills for the medications, the judge had found they were not causally related to claimant’s work injury. Therefore, the Commonwealth Court found the claimant was not entitled to penalties under the Act and that the judge issued a reasoned decision by adequately explaining why she rejected the Letters. 

Carol VanderWoude (Philadelphia, PA) obtained a reversal in the Pennsylvania Superior Court of the trial court’s denial of preliminary objections to venue. She successfully moved in the trial court for certification of the ruling pursuant to Pa.R.A.P. 311(b) so that an immediate appeal from the interlocutory ruling could be taken, and she subsequently prevailed on appeal. The litigation arose from a helicopter accident that occurred in Afghanistan. Both plaintiffs, husband and wife, resided in Arizona. Carol’s client is a Delaware corporation located in Bucks County, Pennsylvania, that refurbished the helicopter in Bucks County. The codefendant corporation leased the helicopter to the plaintiff-husband’s employer, which was organized and principally operates in Montana. The plaintiffs’ primary focus in seeking to establish venue was on Carol’s client and, in particular, on the fact that it purchased two fabric interiors from a Philadelphia vendor. One of the interiors was installed on the helicopter. In reversing the trial court, the Superior Court emphasized that the relevant time period for assessing a defendant’s acts in Philadelphia County is at the time a lawsuit is filed, the limited amount of purchases in the relevant time frame and the lack of any evidence to show an ongoing business relationship. The Superior Court determined that the business dealings of Carol’s client did not constitute actual business conducted in Philadelphia County. It stressed that “doing business with a Philadelphia County company does not amount to doing business in Philadelphia County if the obtained goods, services, or personnel are utilized elsewhere to further the defendant’s business activities.” Moreover, the Superior Court noted that our appellate courts have held that purchasing supplies from a vendor in Philadelphia County is not sufficient to confer venue. As to the codefendant, the Superior Court concluded the limited venue evidence pointed to a separate but related corporate entity, and that the evidence failed to show the co-defendant regularly conducts business in Philadelphia County. Because there was no evidence to support the imputation of a separate entity’s contacts with Philadelphia on the co-defendant, venue as to the co-defendant was also improper. 

Carol VanderWoude also successfully defended on appeal the trial court’s grant of compulsory nonsuit in a legal malpractice action following the trial court’s rulings on various motions in limine. The trial court granted our clients’ motions in limine to preclude the plaintiff from introducing into evidence that its attorney sued the wrong parties, that its attorney obtained an uncollectable judgment, and that the plaintiff would have prevailed in a lawsuit against other parties. Following the motion in limine rulings, trial counsel moved for nonsuit—arguing the plaintiff could not carry its burden of proof without the precluded evidence. On appeal, the plaintiff argued the trial court’s evidentiary rulings violated the law of the case set forth in the Superior Court’s decision reversing the trial court’s order sustaining our clients’ preliminary objections and dismissing the amended complaint, and that the trial court erred in granting the motions in limine. The Superior Court rejected both arguments and affirmed the trial court’s denial of the plaintiff’s motion to remove compulsory nonsuit. The Superior Court held that the trial court did not abuse its discretion in granting the motions and that it properly concluded the plaintiff failed to present evidence to meet its burden of proof.

Christopher Woodward (Harrisburg, PA) and Thomas Specht (Scranton, PA) secured the Third Circuit Court of Appeal’s affirmation of a district court’s grant of summary judgment in favor of our client. The Third Circuit agreed with our arguments that regular use exclusions in UIM policies do not act as de facto waivers of stacked coverage and, thus, do not violate Section 1738 of the Motor Vehicle Financial Responsibility Law.

*Results do not guarantee a similar result. 


 

Defense Digest, Vol. 30, No. 4, December 2024, 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. © 2024 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

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

Hearing Officer Confirms District Acted Appropriately Under IDEA and Section 504 William J. McPartland (Scranton) obtained a finding in favor of our client, a school district, on all issues following a due process hearing. The parent had filed a due process complaint alleging that the school district had breached its child find duty under the IDEA and Section 504, that the school district had discriminated against the student on the basis of disability in violation of Section 504, and that the school district had denied a free and appropriate public education to the student both by developing inadequate IEPs and via an actionable procedural violation.  Specifically, the student had received a Section 504 evaluation in October 2023, after a number of behavioral infractions culminating in a fight in September 2023, was identified as having anxiety and a sleep disorder, and received appropriate Section 504 accommodations. The student had never previously demonstrated signs of a learning disability, and the parent denied the school district permission to evaluate the student for special education needs in November 2023, and January 2024. The parent granted the district permission to evaluate the student in October 2024, after a private psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder, possible Oppositional Defiance Disorder, a learning disorder, and anxiety. The school district issued a special education evaluation report in December 2024, finding that the student had an emotional disturbance and other health impairment, and an IEP providing an itinerant level of emotional support, as well as instruction in academics and social skills, was issued in January 2025, and amended in February, March, and April 2025. The student withdrew from the school district in April 2025, to attend a cyber charter school. The hearing officer determined that the school district had not violated its child find duty to the student in violation of either the IDEA or Section 504 where the district developed a Section 504 plan for the student within a month and a half of the parent’s first request for a Section 504 evaluation and where the parent repeatedly denied consent to conduct an IDEA evaluation of the student. The hearing officer noted that the student’s sporadic record of behavioral infractions prior to September 2023, did not suggest that the student had a disability prior to the parent’s initial request for an evaluation. The hearing officer further determined that no evidence had been produced to suggest that the student was discriminated against on the basis of disability in violation of Section 504. Additionally, the hearing officer determined that the IEP offered to the student was substantively adequate and that, to the extent the social and emotional programming offered by the school district was not received by the student, this resulted from the parent’s refusal to accept the same. The hearing officer finally determined that the school district did not commit an actionable procedural violation by delaying development of an IEP for the student where the parent repeatedly denied consent to evaluate the student. Court Dismisses Three of Four Claims Against School District Christopher J. Conrad and Daniel P. McGannon (Harrisburg) achieved a significant early victory on behalf of a school district client in. The team successfully obtained dismissal of three of the four claims asserted in the plaintiff’s amended complaint. The former district superintendent brought multiple claims arising out of his alleged “forced resignation,” including age discrimination under the ADEA, a Section 1983 Equal Protection claim, a Pennsylvania Whistleblower claim, and breach of contract. On behalf of the district, the defense team moved to dismiss the complaint in part, arguing: The plaintiff failed to plead sufficient facts to support a prima facie case of age discrimination. The equal protection claim was barred because the ADEA provides the exclusive federal remedy for age-based employment claims. The breach of contract claim could not stand because the underlying employment agreement had expired prior to the alleged breach. The court agreed, dismissing the ADEA, equal protection, and breach of contract claims in their entirety. As a result, only a single claim under the Pennsylvania Whistleblower Law remains pending. This outcome substantially narrows the scope of the litigation and positions the client for a more efficient defense moving forward.

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.