.

Legal Updates for Lawyers' Professional Liability

Legal Updates For Lawyers’ Professional Liability – RESULTS & THOUGHT LEADERSHIP

Presented by the Lawyers' Professional Liability Practice Group

July 28, 2022

RESULTS *

Christopher Block and Erica Goldring (Roseland) prevailed on a motion to strike the plaintiff’s expert in a complicated New Jersey professional malpractice matter. Following two rounds of briefing and two rounds of oral argument, the court agreed that the plaintiff’s expert’s opinion was a net opinion and did not provide any substance or evidence of a lack of a duty of care.

Lara Bream and Edwin Schwartz (Harrisburg) were successful in obtaining a dismissal of a complaint filed in the Middle District of Pennsylvania against a New York attorney for alleged malfeasance regarding the appointment of a guardian of an elderly woman that is alleged to have resulted in the dissipation of $2.2 million in assets.

Josh Byrne and Alesia Sulock (Philadelphia) succeeded in having a complaint dismissed, with prejudice, on preliminary objections in a legal malpractice action in Philadelphia County. Josh and Alesia had preliminary objections sustained on this multiple-count legal malpractice claim that arose out of representation in a hotly-contested divorce matter. The plaintiff's complaint was dismissed, with prejudice, as to all defendants.

Josh Byrne (Philadelphia) successfully defeated a petition for allowance of appeal to the Pennsylvania Supreme Court by the Office of Disciplinary Counsel that sought to change a private reprimand to a public reprimand. In a highly unusual move, the Office of Disciplinary Counsel filed a petition for allowance of appeal seeking to have the decision of the Disciplinary Board changed from a private reprimand to a public reprimand, in a case with potential national implications. Josh successfully defeated this petition, thus maintaining his client's privacy.

Josh Byrne (Philadelphia) recently achieved dismissal of a disciplinary complaint against an attorney. The complaint involved allegations of multiple violations of the Rules of Professional Conduct arising from an underlying representation. After Josh responded to the complaint, the Office of Disciplinary Counsel exercised its prosecutorial discretion to dismiss the complaint, despite determining that there were potential violations of at least three Rules of Professional Conduct.

Josh Byrne (Philadelphia) achieved dismissal of a complaint before the Bureau of Professional and Occupational Affairs against a home appraiser based upon allegations of an improper appraisal.

Josh Byrne (Philadelphia) succeeded in getting a joinder complaint brought by an AM Law 100 firm against his client in a legal malpractice/breach of fiduciary duty action arising out of a multi-million dollar business transaction dismissed on preliminary objections in Philadelphia.

Edwin Schwartz (Harrisburg) achieved a successful dismissal of a Disciplinary Board complaint against an attorney who had been involved in a complex and messy family dispute regarding the creation and operation of brewery and events venue.

Yael Dadoun and Edwin Schwartz (Harrisburg) obtained a dismissal of a Disciplinary Board complaint filed against a York County attorney by a sitting judge on the Court of Common Pleas of York County related to the attorney’s representation of a client an underlying hostile divorce action.

*Prior Results Do Not Guarantee A Similar Outcome

 

THOUGHT LEADERSHIP

Josh Byrne, chair of our Disciplinary Board Representation Practice Group, weighs in on potential red flags for banks in use of IOLTA accounts. Read the article here: https://news.bloomberglaw.com/business-and-practice/wells-fargo-ponzi-suit-airs-bank-risk-in-law-firm-trust-accounts

Josh Byrne (Philadelphia) presented at the Pennsylvania Bar Association’s annual Spring 2022 Avoiding Legal Malpractice Program on June 24th. “Avoiding Legal Malpractice” was presented by the PBA Professional Liability Committee and featured information on a variety of issues that have been identified as common areas where attorneys can be exposed to liability or malpractice claims and focuses on steps we can all take to avoid, or at least mitigate, potential claims.

Josh Byrne’s (Philadelphia) article “Mental Health, Malpractice Avoidance and Ethical Conduct” was published in the July edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/mental-health-malpractice-avoidance-and-ethical-conduct

Josh Byrne (Philadelphia) presented the seminar “Dealing with Difficult Opposing Counsel 2022” for the Pennsylvania Bar Institute. Josh co-presented this program with other experienced lawyers and professional liability professionals, including the Chief Disciplinary Counsel for the Disciplinary Board of the Supreme Court of Pennsylvania. This session offered tools, techniques, and insight into practical and effective methods of dealing with difficult opposing counsel while complying with the Rules of Professional Conduct.

Charlene Seibert (Pittsburgh), a shareholder and member of the firm’s Lawyers’ Professional Liability Practice Group, has been appointed to a three-year term as a Hearing Committee Member of District IV or the Disciplinary Board of the Supreme Court of Pennsylvania. Hearing Committee Members perform essential roles in Pennsylvania’s disciplinary system, chief among them to review Disciplinary Counsel’s recommended dispositions and to conduct hearings into formal charges of attorney misconduct and petitions for reinstatement. These efforts, which include reviewing pleadings and briefs, weighing evidence, and writing reports, are critical to guiding the Board and the Supreme Court in their determinations.

Jack Slimm and Jeremy Zacharias (Mount Laurel) presented a webinar entitled “Virtual Trials in New Jersey: The Good, the Bad, and the Ugly.” This was presented to an audience comprised of claims professionals, attorneys and various insurance companies. Jack and Jeremy explained their experience with trying cases in a virtual and hybrid setting, and gave practical pointers and strategies in trying a case, picking a jury, and presenting evidence in a virtual format. Jack and Jeremy introduced the firm capabilities in a technological standpoint and the staffing that is needed for trying a virtual or a hybrid case.

 

Legal Update for Lawyers’ Professional Liability – July 2022 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case