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Real Estate E&O Liability

Our Real Estate Professional Liability Defense team represents real estate professionals and related service providers in high-stakes civil litigation across a wide range of claims. We have extensive experience defending real estate brokers, agents, and REALTORS® against malpractice and breach of duty allegations stemming from residential and commercial transactions. Our attorneys understand the complexities of real estate law and the nuances of professional standards, allowing us to craft targeted defenses that protect our clients’ reputations and livelihoods.

Beyond traditional real estate professionals, our practice extends to the defense of those who play critical roles in facilitating transactions. We represent title agents, abstractors, surveyors, mortgage brokers, appraisers, home inspectors, and title insurance companies when their work is challenged in court. These professionals often face claims involving alleged negligence, misrepresentation, disclosure errors, and contract disputes—areas where our team has a strong record of achieving favorable results.

Our approach is proactive and strategic. We work closely with our clients and their insurers from the earliest stages of a claim, often helping to resolve matters through negotiation or early motion practice. When litigation is unavoidable, we bring deep courtroom experience and an unwavering commitment to defending our clients through trial and appeal, if necessary.

We know that for professionals involved in real estate, litigation can be both financially and professionally disruptive. That’s why we prioritize efficient case management, cost-effective strategies, and clear communication throughout the life of a case. Our goal is always to protect our clients’ interests while minimizing the impact on their business operations and professional standing.

With a team that blends deep legal knowledge and real-world insight into the real estate industry, we are trusted counsel to professionals facing complex and often emotionally charged disputes. Whether the matter involves a multimillion-dollar commercial deal or a single-family home transaction, our attorneys bring the same level of dedication and attention to detail.

We are proud to be a reliable defense partner for real estate professionals and the businesses that support them. When your work is under scrutiny, you need a legal team that understands the stakes—and how to win.

Results

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One Month – 4 Outstanding Results! Aaron Moore Obtained Four Successful Results on Behalf of Clients in the Span of One Month

Defense verdict on behalf of a real estate broker and agent. The plaintiffs, homebuyers, claimed that the sellers’ broker and agent were liable to them for the value of fixtures that were taken by the sellers when they vacated the property, which were alleged to have been included in the sale. At a bench trial, the judge determined that neither the broker nor the agent could be held liable to the plaintiffs because the representations regarding what was included in the sale were made by the sellers. Supreme Court affirmance of dismissal of a complex legal malpractice lawsuit. Aaron and Carol Vanderwoude obtained a Delaware Supreme Court affirmance of the trial court’s dismissal of a complex legal malpractice claim. The plaintiffs, seven affiliated companies and their owners in the business of developing property, had been sued by their bank for defaulting on multiple lines of credit. The bank filed multiple lawsuits against the property developers, claiming approximately $7 million in damages, plus attorneys’ fees, which were recoverable pursuant to the terms of the promissory notes. The property developers retained our client to defend the lawsuits, asserting that the amounts claimed to be owed to the bank were significantly overstated. Our client vigorously defended the bank’s underlying lawsuits. Ultimately, the property developers settled the bank’s lawsuits for the entire amount owed, plus interest and the bank’s legal fees. The developers argued that its attorneys should have advised them to settle the bank’s claims after the lawsuits were commenced and that, if they had done so, they would not have had to pay the bank’s legal fees, our client’s legal fees, or expert witness fees, or the additional interest on the loan. The property developers also claimed that not settling with the bank earlier caused them lost business opportunities valued at nearly $1 million. The plaintiffs’ legal malpractice claims were dismissed because their expert witness, a Maryland attorney with no business litigation experience, was not qualified to serve as an expert and because their damages claims were speculative. Motion to dismiss in complex matter involving claims of fraud, misappropriation of trade secrets, tortious interference with contractual relations, and piercing the corporate veil. The plaintiff, an investment fund, had purchased a business that was controlled and primarily owned by our client. The business ultimately went bankrupt, and the plaintiff claimed that the purchase was premised upon misrepresentation by our client. The plaintiff maintained that jurisdiction in Delaware was proper pursuant to the Asset Purchase Agreement. The District Court was persuaded by arguments reflecting that it lacked personal jurisdiction over our client, a citizen of Canada, even though he signed the Asset Purchase Agreement which included language conferring jurisdiction over claims arising from the sale in Delaware. The court agreed that our client did not sign the agreement in his individual capacity, and the plaintiff’s piercing the corporate veil allegations were insufficient to confer personal jurisdiction. Dismissal of an unjust enrichment claim. Obtained dismissal of an unjust enrichment claim brought by a condominium unit owner against the attorneys who represented her condominium association. The unit owner claimed that the law firm was liable to her for unjust enrichment in connection with legal fees it received from the association for legal services provided in efforts to collect on past due assessments owed by the unit owner. Pursuant to the association’s governing documents, the charges were passed on to the unit owner. The court agreed that the fees that were paid to our client by the condominium association were properly earned.

Successful defense of real estate agent investigated by the PA Bureau of Professional and Occupational Affairs (BPOA).

The real estate agent represented a buyer in the purchase of a home in Adams County. Prior to closing, the buyer had the property’s septic system inspected, and the system passed the inspection. Several months after closing, the real estate agent’s client decided to sell the property. When the new prospective buyers had the septic system inspected, the system failed the inspection, and they would not agree to close until the client fixed the system. The client then learned after the fact that the original sellers had experienced many issues with the septic system, that the system had failed several prior inspections because the ground would not perc, and that the sellers failed to disclose this information when they sold the property to the client. The client filed a complaint against the real estate agent with the BPOA under the Real Estate Licensing and Registration Act, alleging the agent engaged in misrepresentation and unprofessional conduct, and claimed that the agent allegedly had knowledge of the prior history with the septic system but failed to disclose it to her. We were able to demonstrate to the BPOA investigator that the real estate agent had no knowledge of the prior history with the septic system, that neither the sellers nor their agent ever disclosed information about the system, and that if she was aware, she would have advised the client not to close on the purchase until the septic system was repaired. The BPOA declined to prosecute and closed its investigation.  

Thought Leadership

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Legal Updates for Real Estate E&O Liability

New Ohio Law Targets Real Estate Wholesaling Practices

May 7, 2026

Effective March 2, 2026, the Ohio Department of Commerce Division of Real Estate and Professional Licensing (REPL) now requires real estate wholesalers to clearly disclose their intention and business model when contracting with a property owner and seller.  This was part of Ohio Senate Bill 155, which passed unanimously in the Ohio Senate in June 2025, and was signed into law by Governor Mike DeWine on December 1, 2025.  Real estate wholesalers serve as intermediaries in property transactions. They enter into a purchase agreement with a seller with no intent to buy the property themselves. Instead, they assign the contract to another buyer or investor at a higher price or charge a fee, typically 5% to 10% of the sale price, to earn a profit. The REPL, in partnership with the Ohio Department of Aging (ODA), and Ohio District 5 Area Agency on Aging in Richland issued a Consumer Alert in March 2025, on wholesalers, citing a rise in unsolicited real estate offers targeting older Ohio homeowners, often offering complex financial arrangements that include hidden risks, leaving older homeowners financially vulnerable. Under this new legislation, real estate wholesalers in Ohio are required to disclose their status to sellers or property owners and clarify that they do not represent the seller in the transaction. The law mandates that this disclosure be made through a clear and conspicuous written statement informing the seller that the individual is acting as a wholesaler. This disclosure must also be separate from the purchase contract or agreement between the parties and must be printed in bold type with a font size of at least 12 points. In the event a wholesaler fails to provide proper notice to the seller, the seller may cancel the purchase contract at any time before the close of escrow without penalty, giving the wholesaler 30 days to return any earnest money or deposits to the seller. Wholesalers who do not clearly disclose their role or properly inform the seller may also face disciplinary action from the Ohio Superintendent of Real Estate. This can include penalties such as suspension or revocation of their real estate license, as well as potential civil liability, monetary damages, and responsibility for attorneys’ fees.

Legal Updates for Real Estate E&O Liability

Limiting Agent Liability in Pennsylvania: Knowledge, Reliance, and the E&O Landscape

May 7, 2026

Errors & Omissions (E&O) claims against real estate professionals in Pennsylvania frequently arise from allegations of nondisclosure or misrepresentation. However, Pennsylvania law provides meaningful guardrails for defense counsel, particularly where plaintiffs attempt to impose duties on agents that exceed statutory and common law obligations. A key principle, often dispositive at summary judgment, is that a seller’s agent does not owe an independent duty to investigate or discover latent defects. Under Pennsylvania law, a real estate agent representing a seller is not required to inspect the property for defects or to disclose conditions of which the agent has no knowledge. This principle aligns with the statutory framework governing licensee conduct, including the Real Estate Licensing and Registration Act (RELRA), which imposes duties of honesty and good faith, but does not create an affirmative obligation to uncover unknown defects. As a result, liability exposure in E&O claims often turns on whether the agent had actual knowledge of the alleged defect and whether the buyer’s reliance was justifiable. The Gordon v. McManus decision illustrates these principles in practice and remains a useful tool for defense practitioners. No. 972 EDA 2013, 2014 WL 10917627, at 3 (Pa. Super. Ct. June 30, 2014). In Gordon, the plaintiffs asserted claims for fraudulent misrepresentation and fraudulent inducement against real estate agents, alleging that the agents were aware of a recurring water infiltration issue and failed to disclose it. The plaintiffs further contended that the agents negligently misrepresented the condition of the property when questioned directly about potential water issues. The factual record, however, undermined these claims. The defendant agents maintained that they had no knowledge of any water infiltration problem. Critically, the plaintiffs had been informed by a neighbor that the basement had flooded on multiple occasions prior to closing. They also conducted their own inspection of the property and observed conditions – including the presence of a sump pump – that could reasonably signal potential water concerns. Despite these indicators, the plaintiffs did not pursue additional investigation or specialized inspection. The Superior Court affirmed summary judgment in favor of the agents, emphasizing two key points that frequently arise in E&O defense. First, the absence of actual knowledge was fatal to the plaintiffs’ fraud claims. Without evidence that the agents knew of the defect, there could be no intentional misrepresentation or concealment. Second, and equally important, the court found that the plaintiffs’ reliance was not justifiable. Having been placed on notice of potential water issues, the plaintiffs failed to exercise reasonable diligence in investigating the condition. Pennsylvania courts have consistently held that where a buyer is aware of facts that would prompt further inquiry, reliance on generalized or informal assurances is insufficient to sustain a fraud claim. The Gordon court also disposed of the plaintiffs’ claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, reinforcing that such statutory claims cannot survive where the underlying fraud theory fails. For defense counsel, this linkage provides an additional pathway to narrow or eliminate exposure early in litigation. From an E&O perspective, Gordon highlights several recurring themes. Plaintiffs frequently attempt to recast nondisclosure claims as affirmative misrepresentation, particularly where there are informal communications between agents and buyers. Yet, absent proof of knowledge, these claims often collapse under scrutiny. Moreover, the decision underscores the importance of the buyer’s own conduct. Evidence that a buyer received notice of a potential defect, whether through third parties, inspection findings, or observable conditions, can significantly weaken claims of justifiable reliance. Practically, this framework offers clear guidance for both litigators and real estate professionals. For defense attorneys, early case assessment should focus on developing the evidentiary record regarding the agent’s knowledge and the buyer’s pre-closing awareness. For agents and brokers, risk mitigation remains centered on disciplined communication practices and encouraging independent inspections without offering definitive assurances about property conditions. Ultimately, while E&O claims in Pennsylvania continue to test the boundaries of agent liability, decisions like Gordon reaffirm a consistent judicial approach: liability cannot be imposed where knowledge is absent and reliance is unreasonable. In an environment where plaintiffs increasingly rely on hindsight to construct claims, these principles remain a critical line of defense.

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. 

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

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.