Results

Marshall Dennehey and its shareholder, Jonathan E. Kanov, Esq., were successful in a South Florida arbitration representing a prominent Florida real estate developer against construction damage claims brought by a neighboring property’s condominium association. In a final, binding ruling, the arbitrator issued a complete defense verdict, plus an award of attorney’s fees and costs to the developer. The plaintiff condominium association had contended that construction of the developer’s luxury condominium tower caused many areas of their property to be damaged, largely from vibrations/seismic activity during demolition and construction. The plaintiff demanded $1.2 million in damages pursuant to a contract that was entered into by the parties covering the construction activity.   The arbitrator agreed with the defense’s arguments that the “conditions the claimant contends were caused by vibration damage from construction activities are actually age-related deterioration and the result of deferred maintenance. Additionally, there is no evidentiary basis to allocate uncompensated damage associated with the pool and pool deck to the developer, as opposed to preexisting conditions requiring repair and upgrades required for code compliance.” Marshall Dennehey presented highly credible experts and fact witnesses in support of its defense.    Another key to the defense verdict was Marshall Dennehey’s effective cross examination of the claimant’s structural engineering expert on construction vibration/seismic activity data, which formed the crux of their damage claims.

We successfully secured dismissal of a New York no-fault/PIP arbitration commenced by a medical provider against a major insurance carrier for non-payment of medical bills. At the hearing, the carrier argued that the provider was ineligible for reimbursement of the disputed charges because it was not licensed in New York State with the Department of Education and the Department of State when the services at issue were rendered. Under the New York no-fault/PIP regulations, a provider of health care services is not eligible for reimbursement under the insurance law if it fails to meet any applicable state or local licensing requirements. In support of the threshold defense, we submitted copies of printouts from these Departments as conclusive evidence that the provider was not properly licensed in New York State when the services were rendered and was therefore ineligible for New York no-fault reimbursement.

We successfully defended a local school district in a special education due process complaint by the parent of a former student who was diagnosed with autism, learning disabilities and ADHD. ​The student had graduated from high school, completed all credits and earned a regular diploma. Yet, the parent claimed that while the student was still attending high school, the school district failed to provide the student with sufficient learning support in reading and math, appropriate social skills training, and adequate vocational and transition services to help the student with life after graduation. Also, the parent claimed the school district failed to take appropriate measures to protect the student from alleged bullying by his peers, including fellow members of the varsity football team. The hearing officer found for the school district on all issues and concluded the school district had provided the student with a free appropriate public education during all times in dispute. The hearing officer also found there was no evidence to suggest the school district had failed to respond appropriately to the parent’s and student’s reports of bullying.

The defense prevailed on preliminary objections in Philadelphia County as the court found that the ​case involved a medical malpractice action involving the plaintiff’s allegations of an alleged assault by three patients while the plaintiff was a patient at a behavioral health hospital. In the complaint, the plaintiff pleaded ordinary negligence. Preliminary objections in the nature of a demurrer were filed by the defendant, raising immunity under the Pennsylvania Mental Health Procedures Act since there was no claim of gross negligence. After the preliminary objections were filed, the plaintiff attempted to cure the defect in the original pleading by filing an amended complaint, which added allegations of gross negligence and additional facts, in an attempt to support the claim of gross negligence. We again filed preliminary objections, arguing that the allegation of gross negligence was a new cause of action that was now barred by the statute of limitations. Since the amended complaint was filed more than two years after the event at issue and raised a new claim, the applicable two-year statute of limitations barred the claim. We also argued that the amended complaint failed to provide any factual support for gross negligence or willful misconduct and, therefore, the hospital was immune from suit. Plaintiff’s counsel did not file a response in opposition. The Philadelphia Court of Common Pleas agreed that the new claim was barred by the statute of limitations and the immunity provisions of the Mental Health Procedures Act, and dismissed the case with prejudice.

We successfully defended a civil rights appeal before the United States Court of Appeals for the Third Circuit. The plaintiff filed a federal civil rights complaint against a police sergeant and a local municipality following his arrest and release. The plaintiff was charged with the attempted murder of his wife, who later recanted her statement to police. After the plaintiff was released from custody, he filed suit, claiming that police failed to conduct an adequate criminal investigation into the charges against him. At the district court, it was found that probable cause existed based on information known to officers at the time of the plaintiff’s arrest. Therefore, our defense motion for summary judgment was granted. The plaintiff appealed to the United States Court of Appeals for the Third Circuit, claiming that the district court failed to weigh the evidence in the light most favorable to him, and ignored relevant evidence. The Court of Appeals affirmed the district court’s decision finding probable cause.

After a masked and socially distanced two-day trial in Bucks County, we obtained a defense verdict in favor of an automotive manufacturer. ​The plaintiff purchased a new 2018 vehicle on March 10, 2018. Approximately one year after the purchase, the plaintiff complained several times that the start/stop function shut off and would not restart. The manufacturer identified the problem and was working on a solution. Meanwhile, the dealership told the plaintiff to turn off the start/stop function until a software update came out. The software update came out in early May of 2019, less than 80 days after the plaintiff’s first complaint. The plaintiff asserted claims under the Pennsylvania Automobile Lemon Law, Magnuson-Moss Warranty Act, Uniform Commercial Code, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law that the vehicle’s repair history was all related to an intermittent and still unrepaired start/stop issue with the car. The defense successfully proved through witness and expert testimony that the vehicle’s mechanical problems were fixed in a timely fashion. The repair work done by the dealership under the warranty was effective and reliable, and the problem was permanently repaired. After trial, the judge requested that each side provide a memorandum with findings of fact and closing arguments. Upon review of same, a ruling was issued in our client’s favor.

We obtained a summary judgment on behalf of a worker who was injured at a fracking site. The injury occurred when a hose came off of an above-ground storage tank and struck him in the head, resulting in sustained serious and permanent injuries. The plaintiff claimed the general contractor was liable for his injuries because it actively participated on the work site and controlled the unsafe condition which caused the injuries. We moved for summary judgment, arguing that the general contractor relinquished complete control over the site to a sub-contractor and, thus, had no control over any unsafe condition which caused the plaintiff’s injuries. The trial court agreed and granted summary judgment in favor of our client.

This was the first civil case tried in a U.S. District Court in Pennsylvania since the court closures caused by COVID-19. The plaintiff alleged that the police officer used excessive force in arresting her outside of a bar in the City of York. She filed a Section 1983 civil rights lawsuit, alleging she sustained a traumatic brain injury after the officer threw her head against a brick wall, threw her to the ground and then repeatedly punched her in the face. By utilizing video surveillance footage and several liability and damage experts, we were able to convince the jury that the force used by the officer was reasonable and justified by the plaintiff’s resistance. The jury deliberated for less than 30 minutes before rendering its verdict.

The suit was filed in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiffs were the maternal grandparents of two children who were removed from the custody of their parents and placed in foster care. The plaintiffs alleged that the defendants violated their substantive and procedural due process rights protected by the 14th Amendment by failing to provide them with custody of the children and notice of court hearings. Addressing an open legal question, the court held that the plaintiffs did not stand in loco parentis to the children and, therefore, did not enjoy 14th Amendment protections. The court dismissed all claims against the county and the individual county employees.

The hearing was to challenge the Pennsylvania Bureau of Workers’ Compensation Fee Review Section’s final determination that an injured worker’s shoulder surgery expenses must be paid by the insurance carrier and the employer. We argued that the work-relatedness of the shoulder surgery is currently in dispute, thus barring the Bureau’s attempt to compel payment. We also proffered the argument that due process of the provider remained intact since a challenge to work-relatedness must be adjudicated before a provider has standing to challenge the amount or timeliness of payment. The decision of the court quashed the Bureau’s determination and held that no surgical expenses are payable.

In this Pennsylvania workers’ compensation action, the judge found that the claimant failed to prove a loss in earnings related to his work injury since returning to work. Instead, he found that the claimant’s loss in earnings was due to lack of work caused by weather conditions or other factors. Additionally, the judge denied both penalty petitions, finding that the claimant had failed to prove a violation of the Act by the carrier for refusal to pay wage loss benefits and medical bills. The judge found that the medical bills were properly denied by the carrier for lack of documentation as required by the Act.

We successfully persuaded the court to grant summary judgement on behalf of a major insurer on a complex coverage issue. This coverage case concerned two Virginia personal automobile policies in regard to an automobile accident in New Jersey. The son of a divorced couple sought coverage for an accident he was involved in on a major thoroughfare in New Jersey. At the time of the accident, the son was operating a motor vehicle owned by another Virginia resident, and he had the reasonable expectation that he had permission to operate the vehicle. The accident was very serious, and he sought coverage under both of his parents’ policies. As to the mother’s policy, we convinced the court that the son was not an insured under her policy because he was not so designated on the policy’s declaration page, which was a specific condition of the policy pursuant to Virginia law. As to the father’s policy, once again, we convinced the court that the son was not an insured under this policy given the fact that the mother had sole and exclusive custody under the divorce agreement; thus, the son was not a resident relative of the father’s household. Therefore, neither policy provided coverage for the son, and the insurer was totally dismissed from the case.

The defense prevailed on summary judgment for a nail salon owner against negligence and product liability claims by a plaintiff who slipped and fell off-site while still wearing pedicure slippers. The plaintiff had received a pedicure at our client’s nail salon. When she left the premises, she continued to wear the disposable pedicure slippers. The plaintiff then walked in the rain and eventually slipped and fell upon entering a retail store. The plaintiff brought general negligence and product liability claims against the nail salon’s owner. At the conclusion of discovery, the court granted our motion for summary judgment based upon the plaintiff’s admission that there was nothing wrong with the slippers and her failure to provide expert opinion as to the existence of any defect in the slippers.

We obtained summary judgment for a national concert promoter and public entity venue owner. The plaintiff purchased outdoor lawn seats for a concert at the PNC Bank Arts Center in Holmdel, New Jersey. After the show started, it began to rain, and the plaintiff alleged the lawn area became slippery, wet and muddy. The plaintiff attempted to walk down the sloped lawn toward the stage to buy her husband a beer. While doing so, her foot got stuck in mud which formed with the rain, and she suffered a severe ankle fracture that was surgically repaired. The trial judge dismissed the case on summary judgment and found the plaintiff’s expert’s report to be unsupported. The court reasoned the plaintiff could not present a claim of liability against the operator for failing to prevent the outdoor grassed seating area from becoming wet and slippery when it rained. He also reasoned the plaintiff could not prove the property was in a dangerous condition as defined by the New Jersey Tort Claims Act.

We successfully argued and obtained a full dismissal of an arbitration matter filed against a major insurance company. ​The plaintiff filed it, claiming the insurer owed payment for unpaid medical bills. He alleged the injuries arose from a motor vehicle accident on February 28, 2017, and sought payment for medical treatments provided to him in the amount of $92,043.28. His position was that the entire amount was owed as our client had not reimbursed the medical provider for the services/surgery rendered. The defense countered that the treatment rendered was not medically necessary and presented documentation from an independent medical peer review of the plaintiff’s medical claims record to support that position. The arbitrator heard arguments, concluded that our argument was persuasive, and found in full favor of our client.

We 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 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.

We obtained an affirmance by the First District Court of Appeal of a defense verdict in a negligent security action. A chef was taking garbage outside of a restaurant when he was shot and killed. The estate sued our client, the owner of the commercial building and 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 then appealed, arguing the trial court abused its discretion in excluding subsequent remedial measure evidence of the installation of lighting, signs and cameras in the parking lot after the shooting. The First District rejected those arguments, and affirmed the final judgments in favor of the defendants.

We obtained dismissal of an accounting malpractice claim on preliminary objections in the Philadelphia Court of Common Pleas. The plaintiffs alleged that their accountant improperly prepared their tax returns—as married filing jointly—and failed to claim business losses, that resulted in an unexpected tax liability being owed. Although the plaintiffs attempted to rely on the discovery rule to toll the statute of limitations, the defense successfully argued that the plaintiffs were on notice of the alleged negligence by the time they received the prepared tax returns, and that their failure to investigate potential claims at that time was a failure to exercise due diligence as a matter of law. We further argued that because they were under a duty to investigate earlier, the plaintiffs could not successfully allege that they could not have known of their claims until they hired a tax attorney to investigate. Because the plaintiffs did not bring their negligence claim until more than two years after they received their prepared tax returns, their claims were barred by the Statute of Limitations.

Walter Klekotka (Mount Laurel, NJ) and Walter Kawalec (Mount Laurel, NJ) were successful in defending a grant of summary judgment in the New Jersey Appellate Division that resulted in a published opinion. Our clients were the owner and manager of an apartment complex for seniors. The plaintiff/resident had returned from walking her dog and alleged she received injuries entering the elevator. She had allowed the dog to enter first when the doors began to close. She alleged injuries occurred when the right door struck her arm and when she used her left arm and the left side of her body to slow the doors from closing while she leapt into the elevator. She sued our clients and the company hired to maintain the elevator, but she was unable to establish any proof of negligence. The trial judge dismissed the case, declining to apply the doctrine of res ipsa loquitur, in part, because the plaintiff 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 opinion, concluded that the third element is a well-established law in New Jersey and only the New Jersey Supreme Court could eliminate it, and that court has shown no inclination to do so. Because the plaintiff could not demonstrate the third prong, res ipsa was not applicable, and the failure of the plaintiff to establish negligence resulted in summary judgment in the defendants’ favor.

We won a case on appeal, reversing the judge’s decision. ​Our insurance carrier client issued a Notice of Temporary Compensation Payable (NTCP), agreeing to pay both indemnity and medical benefits for a lumbar strain allegedly sustained by the claimant. The 90-day period began on April 22, 2018, and ended July 20, 2018. On June 21, 2018, the claimant filed a claim petition for workers’ compensation benefits, alleging a low back injury. On July 17, 2018, the carrier issued a Notice Stopping Temporary Compensation Payable, stopping benefits as of June 5, 2018, and a Notice of Compensation Denial. Thereafter, the claimant filed a petition for penalties, averring the carrier violated the Pennsylvania Workers’ Compensation Act by failing to stop benefits within five days of receipt of the last payment of benefits. Accordingly, the NTCP converted to a Notice of Compensation Payable (NCP). The judge issued an Interlocutory Decision, ordering the carrier to reinstate disability benefits due to its failure to stop the claimant’s benefits within five days of the last payment. The carrier appealed, arguing that the Interlocutory Order was a final adjudication, merely labeled as “Interlocutory.” The carrier argued that because the judge’s order drastically altered the procedure and burdens of the litigation, it was a final adjudication and the carrier had a right to appeal therefrom. The carrier further argued that, even when a defendant fails to file a notice stopping within five days after the last payment, but does so within the 90-day NTCP timeframe, the NTCP does not convert to a NCP. The Workers’ Compensation Appeal Board agreed and reversed the judge’s order.

The plaintiffs contracted with a builder to construct a 5,000 sq. ft. home. In accordance with the Uniform Construction Code, the local township contracted with a privately-owned company to serve as a code enforcement and permit officer. The company issued a building permit, inspected the home at several points during construction, and eventually issued a certificate of occupancy. However, the plaintiffs claimed that the home had significant structural and aesthetic defects, and the code enforcement officer failed to conduct proper inspections during the construction process. The plaintiffs sued their builder, the code enforcement officer and the township. The township was alleged to have negligently hired and/or negligently supervised the code enforcement officer. Preliminary objections were filed in response, raising governmental immunity as a clear defense to the negligence claims against the township. Following oral argument, the court sustained the preliminary objections and dismissed the township from the action, finding there were no plausible claims for negligence based upon application of the Pennsylvania Political Subdivision Tort Claims Act.

The defense prevailed on a motion for judgment on the pleadings in a declaratory judgment action seeking liability coverage in a catastrophic injury case. ​The plaintiff was a passenger in a vehicle driven by his wife when she veered off the road and struck a pedestrian, nearly killing him. The pedestrian sued the plaintiff in a separate action, alleging he got out of the vehicle, rolled the pedestrian over, saw he was “mortally wounded,” got back in the vehicle, and fled the scene without rendering aid or calling for help. The pedestrian sued the plaintiff for negligently failing to render aid and assistance. The plaintiff brought his declaratory judgment action seeking a determination that he was entitled to defense and indemnity under the liability coverage afforded by his homeowner’s policy. Mike and Julie argued there was no coverage in the first instance because the the insured’s conduct was not “accidental.” Subject to exclusions, the policy provides liability coverage for any occurrence that causes bodily injury. “Occurrence” is defined in the policy to mean an “accident” that results in bodily injury. In addition, they argued that certain exclusions would bar coverage, including an exclusion for bodily injury arising from the “use” of a motor vehicle and exclusions for expected or intended injury and willful or malicious acts. The court agreed and granted final judgment in favor of our client.

The case involved a compensable claim for right hip and shoulder fractures sustained in a fall. At issue was the level of permanent disability for the compensable injuries and the relatedness of a subsequent hip replacement surgery. The petitioner’s demand before trial was more than $450,000, plus almost $78,000 for medical expenses. The employer’s final offer was $180,000. After a three-day trial in Ocean County, the judge awarded permanency benefits totaling less than $153,000. Further, the judge determined that the hip replacement surgery was not related and denied the entire $78,000 medical bill claim.

The plaintiff brought claims for negligent hiring/supervision, false imprisonment, and intentional infliction of mental distress arising from an incident where she was allegedly lured to a residential apartment building in New York City under false pretenses and sexually assaulted by the desk security guard in a back room of the lobby. The guard involved was duly licensed and had no criminal history. At trial, he was criminally convicted and sentenced to prison. The plaintiff contended that the guard’s employer was negligent in its hiring of the guard and that it failed to properly supervise his actions at the building, particularly in light of the fact that during the criminal trial, some evidence surfaced that the guard may have committed a similar assault three days earlier while working at another building for a different company. After more than four years of discovery, we moved for summary judgment on behalf of the guard’s employer and the building owners/managers, which was granted, dismissing the plaintiff’s claims in their entirety.

Resolved a FINRA matter involving four private placement investments for a portion of the costs. ​At issue were alleged losses exceeding $200,000. Leveraging the panel’s favorable decision on an earlier Motion for Eligibility (untimeliness), we convinced claimants’ counsel of the futility of proceeding further. Claimants’ counsel agreed to resolve the case for his filing costs only, split among three respondents.

We successfully defended a survivor’s claim for Federal Black Lung Benefits. The miner had worked 11 years in underground mining, had acknowledged simple coal workers’ pneumoconiosis (CWP), and died due to heart failure and COPD (per the death certificate). The judge credited the opinions of our medical expert that the miner’s simple CWP did not cause or hasten his death, and rejected the opinions of the claimant’s medical expert, who opined that the miner’s CWP resulted in inflammation and arteriosclerosis that resulted in his heart failure and death.

In an arbitration matter filed against our insurance company client, the applicant claimed our client owed him for the unpaid medical bills of the claimant totaling approximately $20,000. The claimant was purportedly involved in a motor vehicle accident and sought payment for medical treatments/surgery. It was argued that our client owed the applicant’s client for the medical services, despite New York State being the improper venue for hearing such a claim. The policy of insurance was written in Pennsylvania, the accident occurred in Pennsylvania and the claimant lived in Pennsylvania. The applicant, the provider of the medical services, and the medical facility where the services were rendered were all located in New Jersey. There was no apparent connection to the state of New York, other than the fact that the surgeon performing the surgery maintains an office there. The arbitrator agreed that this single contact was insufficient to confer jurisdiction on the New York State no-fault system to adjudicate these no-fault claims in the state of New York.

Our appellate attorneys convinced Florida’s Fifth District Court of Appeal to affirm an administrative law judge’s final order finding a claim compensable under the Florida Birth-Related Neurological Compensation Plan. ​A minor child was permanently and substantially brain damaged as a result of his complicated birth. The parents sought compensation pursuant to NICA under protest. The parents contended the brain injury that caused the child’s permanent and substantial mental and physical impairment occurred prior to the statutory period (i.e., during labor, delivery or resuscitation in the immediate post-delivery period in a hospital). They claimed the injury occurred in the 34 minutes from when the cord prolapsed at home to when the mother arrived at the hospital, where she ultimately delivered the child via emergency cesarean section. NICA and the hospital argued that the permanent and substantial impairment occurred during the statutory period. The administrative law judge agreed, and the Fifth District Court of Appeal affirmed the final order determining the claim was compensable.

We secured a dismissal of a civil rights action against a Pennsylvania children and youth agency and several of its caseworkers and staff attorneys. ​The plaintiff parents brought their five-month-old baby to the hospital with a spiral fracture mid-shaft on his right humerus. The hospital team collectively concluded that the injury was probably accidental in nature, but a nurse reported the injury to the agency, concerned that it might have been caused by abuse. By law the agency is bound to investigate suspected child abuse and did so. A judge approved the request for a safety plan that required a chaperone to be with the parents and child, even in the home, while the merits of the abuse investigation continued. At the end of the investigation, the judge concluded the injury was accidental, and the safety plan was terminated. The plaintiffs then filed an action, alleging the safety plan violated their Fourteenth Amendment substantive due process rights. The federal district court dismissed the case, concluding the plaintiffs’ allegations of interference with the family unit, even if true, do not rise to the level of “shocking to the conscience” necessary for a due process violation. On appeal, the Third Circuit affirmed, stating that the nurse’s report of possible child abuse, in conjunction with other evidence to support suspicion of the same, make the defendants’ actions not “shocking to the conscience,” and so no substantive due process claim was stated. Dismissal was affirmed.

We obtained summary judgment for a national trucking company in a lawsuit filed in Middlesex County, New Jersey, arising from a multi-vehicle trucking accident on the New Jersey Turnpike in which a young girl was killed and her mother seriously injured. In addition to being granted summary judgment, we recovered for our client all of its property damage, towing, and related costs from the other vehicles involved in the accident. A consolidated case filed by the County of Middlesex in which they sought to recover cleanup and environmental costs associated with the accident, was also dismissed, with prejudice.