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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

MARSHALL DENNEHEY COMBINES FORCES WITH LITIGATION BOUTIQUE, DELANY LAW

On October 31, 2022, the firm joined forces with the attorneys and staff of the Philadelphia-based litigation boutique Delany Law. Helmed by veteran trial attorney Jack Delany, the union brings three shareholders, one special counsel, one associate, two paralegals, and an experienced group of support staff to our Philadelphia and Mount Laurel, New Jersey, offices. All of the attorneys will practice in the firm’s Casualty Department.

“We are delighted to welcome the attorneys and staff of Delaney Law to the firm,” said G. Mark Thompson, our president & CEO. “Given our complimentary practices and the fact that our lawyers have long known, liked and respected one another, we felt uniting under the Marshall Dennehey umbrella would make us both better. The pairing affords Marshall Dennehey exceptional trial talent and greater bench strength in Pennsylvania, New York and New Jersey, while providing the lawyers and clients of Delany Law the opportunity to capitalize on the resources and efficiencies that we can provide as one of the country’s largest defense litigation firms.”

Jack Delany, founding partner of Delany Law and a well-known defense trial attorney in the Philadelphia region, joins our Philadelphia office as a shareholder. Jack defends catastrophic, high-profile, high-exposure cases against some of the country’s most formidable plaintiff firms. He has taken more than 60 jury trials to conclusion, as well as hundreds of bench trials, arbitrations and mediations. He has represented many Fortune 500 companies directly and as insureds and has handled complex litigation matters at the federal and state levels, as well as in administrative agencies and alternate dispute resolution forums. Jack also serves as national coordinating counsel for several product manufacturers.

Andrew Campbell and Kristen Worley also join our Philadelphia office as shareholders. Andrew has more than 20 years of experience in civil litigation and insurance defense, with specific focus in the areas of construction, fire and product litigation. Kristen has two decades of litigation and trial experience, representing clients in Pennsylvania and New Jersey in matters involving product liability, personal injury and commercial auto litigation. Andy Ciganek will join the Philadelphia office as an associate. With a strong background in civil litigation, he has successfully handled personal injury, wrongful death, premises liability, aviation, maritime and class action lawsuits.

Lastly, Michael Logue joins us as special counsel in the Mount Laurel office. Mike is an accomplished personal injury trial attorney and has obtained successful outcomes in matters involving bodily injury, workers’ compensation and property damage claims.

Jack Delany commented on the merger. “After 33 great years of running my own firm, the time has come to join forces with a larger firm that can provide the same level of intelligent, innovative resources paired with the solid support that my clients and my employees deserve. That firm, our new home, is Marshall Dennehey, one of the finest legal defense firms in the business for decades. We are thrilled to join this truly amazing team. They have the integrity, the impeccable reputation and the progressive ideals that will move our practice into an exciting new phase of history.”

 

RECOGNITION

Six attorneys from our New York City, Westchester County and Long Island offices have been selected to the 2022 edition of New York Metro Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in a state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. 

2022 New York Metro Super Lawyers

  • Nicholas P. Chrysanthem, Professional Liability: Defense (NYC)
  • James P. Connors, Personal Injury General: Defense (Westchester)

2022 New York Metro Super Lawyer Rising Stars

  • Dean Aronin, Transportation/Maritime (NYC)
  • Adam C. Calvert, Personal Injury General: Defense (NYC)
  • Preston Holmes, Transportation/Maritime (Westchester County)
  • Robert Demeusy, Personal Injury – Products: Defense (Long Island)

 

SEMINARS

Robert Aldrich (Scranton, PA) presented “Hot Topics in Healthcare” at the PAHCM (Pennsylvania Association of Health Care Risk Management) Fall conference.

Kimberly Kanoff Berman (Fort Lauderdale, FL) moderated a panel titled “Brief Writing for the Third DCA” at the Florida Bar’s Appellate Practice’s Practicing Before the Florida Third District Court of Appeal 2022 CLE seminar.

Christopher Block (Roseland, NJ) presented “Mastering the Professional Malpractice Mediation” at the PLDF Annual Meeting in Chicago.

Josh Byrne (Philadelphia, PA) participated in the Dauphin County Bar Association’s Member Benefit Compliance Session. Josh co-presented the ethics portion titled “PBA Malpractice Avoidance.”

Samuel Cohen (Philadelphia, PA) spoke on a panel at the Alternative & Direct Investment Securities Association (ADISA) trade conference in Las Vegas. The panel was titled “Hiring with Caution: How One Bad Apple Can Spoil Your Business.”

Christopher Conrad (Harrisburg, PA) co-presented “Special Education Litigation: Best Practices for Avoiding Liability, and Strategies for a Successful Defense” at the PLDF Annual Meeting in Chicago. Chris also presented “Safe Schools and Bullying” at the Pennsylvania Bar Institute’s Exceptional Children Conference.

Jonathon Cross (Philadelphia, PA) co-presented “Concussion in Sport - Causation and Risk Management in the Spotlight” at a recent Insurance Law Global webinar.

Brooks Foland (Harrisburg, PA) co-moderated the webinar “In the Zoom: Ins and Outs of Remote Mediation” for the Dauphin County Bar Association.

John Hare (Philadelphia, PA) spoke at the 2022 Convention of the Defense Research Institute. John addressed the history and notable decisions of the Pennsylvania Supreme Court. John also spoke at the 2022 Pennsylvania Governor’s Office of General Counsel University. The event is the yearly training program for attorneys in the executive branch of state government with more than 500 live attendees. John spoke at the invitation of the Pennsylvania Supreme Court and discussed the Court’s functions and notable decisions.

Mark Kozlowski (Scranton, PA) presented the webinar “Employment Law Basics – The Basis of OSHA, FLSA, ADA & More” for the Society for Human Resource Risk Management (SHRM).

Mary Kate McGrath and Adam J. Fulginitti (Philadelphia, PA) made a telehealth presentation for PAHCM (Pennsylvania Association of Health Care Risk Management).

Harold Moroknek (Westchester, NY) co-presented at the Auto Haulers Association Fall Expo in Orlando. The seminar was titled “Where Are You Leaking? Pain Points and Missteps: Things That Cost a Motor Carrier Unnecessary Defense and Indemnity Dollars.”

A.C. Nash (Fort Lauderdale, FL) presented “Talkin’ Bout My Generations” to the RIMS Broward County Chapter.

Tony Natale (Philadelphia, PA) and Robin Romano (Philadelphia, PA) were co-presenters at this year’s Philly I-Day conference. Their session, “Hot Topics in Worker’s Comp and Litigation Trends,” focused on trends and case law that are making waves in Pennsylvania workers’ compensation litigation, including unreasonable contest, discharge from employment issues within a workers’ compensation case, head injuries with post-concussion syndrome, and specific loss and extension to full body. Robin and Tony analyzed the impact of these cases on future similar litigation, and provided tips for mitigating exposures and liabilities from a risk management perspective. The presentation was attended by local insurance, claims and legal professionals.

Jeff Rapattoni (Mount Laurel, NJ) participated in various sessions at the International Association of Special Investigation Units conference. In “The Management of Brand Protection,” Jeff joined a panel that explored current risks in investigative insurance fraud while balancing the importance of protecting a company’s brand. The use of desk investigations, pass through claims, post-COVID major case and best practices were explored. Other topics included avoiding bad faith, proper statement techniques, and technology integration between claims and SIU. Jeff also co-presented “Legal Update: Emerging Legal and Legislative Trends in Fraud Fighting,” where a panel of legal experts involved in insurance fraud defense discussed current and emerging legal and legislative trends in the fight against fraud. Finally, he presented an Ethics session focused on investigator ethics, heard comments and critiques on current case law impacting the SIU and how it relates to the ethical investigation of insurance fraud moving forward.

Jeremy Zacharias (Mount Laurel, NJ) presented at an all-day CLE for the New Jersey State Bar Association titled “Commercial Real Estate Transactions: from Fist Bump to Closing.” Jeremy’s section related to ethical considerations pertaining to commercial real estate and the new age of cannabis litigation and the use of commercial space for cannabis dispensaries. Jeremy’s topic focused on the Rules of Professional Conduct and the various duties to disclose certain information during real estate transactions in a commercial setting and duties to third parties relying on an attorney’s advice. Additionally, Jeremy was a panelist at the Rutgers’

School of Law’s Professionalism Seminar, which is offered twice a year, and Jeremy is a recurring panelist to discuss the defense of ethics grievances and the RPCs in the state of New Jersey. The audience included first year law students learning about the Rules of Professional Conduct. The panel included a federal judge and an attorney from the

Public Defender’s Office. Jeremy discussed the importance of the Rules of Professional Conduct in daily practice and applications of the Rules of Professional Conduct in practical examples.

 

OTHER NEWS

Four attorneys from our Wilmington, Delaware, office have been selected 2022 “Top Lawyers” by Delaware Today magazine. The recognized attorneys are Bradley J. Goewert and Thomas J. Marcoz, Jr. for medical malpractice defense; and Benjamin K. Durstein and Keri L. Morris-Johnston for workers’ compensation employer defense.

 

PUBLISHED ARTICLES

Josh Byrne’s (Philadelphia, PA) article, “What to Think About When Deciding on Legal Malpractice Insurance,” was published by PLUS Blog on September 12, 2022. You can read the article here: https://plusblog.org/2022/09/12/what-to-think-about-when-deciding-on-legal-malpractice-insurance/.

Josh Byrne’s (Philadelphia, PA) article “Practical Considerations for Those Facing Suspension or Disbarment” was published in The Legal Intelligencer on October 3, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/03/practical-considerations-for-those-facing-suspension-or-disbarment/.

Josh Byrne (Philadelphia, PA) was quoted in The Legal Intelligencer article, “‘You Have to Battle When It Should Be a Walk in the Park’: Ethics Lawyers Say Attorney Discipline Has Gotten Tougher,” on September 1, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/09/01/you-have-to-battle-when-it-should-be-a-walk-in-the-park-ethics-lawyers-say-attorney-discipline-has-gotten-tougher/.

Matthew Keris (Scranton, PA) was quoted in the third quarter issue of Medical Liability magazine’s cover story, which explores the implications of artificial intelligence for MPL carriers and health care providers. You can read the article here: https://www.mplassociation.org/Web/Publications/Inside_Medical_Liability/Issues/2022/Q3/articles/AI_Offers_Opportunities_and_Risks_for_Providers.aspx.

Tony Natale (Philadelphia, PA) sat down with AM Best’s Insurance Law Podcast to discuss workers’ compensation fraud. Listen to the podcast here: https://lnkd.in/eTMvMkVe.

Alexander Possino’s (Pittsburgh, PA) article “Navigating Uncharted Territory: How to Avoid Danger Zones in the Evolving Landscape of Medicaid Liens” was published in the September 2022 edition of CLM Magazine. You can read the article here: https://736506f6.flowpaper.com/CLMSeptember2022/?utm_campaign=2210916_CLM%20Digital%20Edition%20Announcement%20922&utm_medium=email&utm_source=CLM&dm_i=37P3,1BDYC,2U2OSA,5514V,1#page=10.

Andrea Rock’s (Philadelphia, PA) article “When Filing a Petition Can Result in an Award of Attorney Fees” was published in The Legal Intelligencer on October 6, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/06/when-filing-a-petition-can-result-in-an-award-of-attorney-fees/.

Charlene Seibert’s (Pittsburgh, PA) article “The ‘Jaundiced Eye’ and the Fight to Prevent Inherent Speculation in Legal Malpractice Cases” was published by The Legal Intelligencer on October 6, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/06/the-jaundiced-eye-and-the-fight-to-prevent-inherent-speculation-in-legal-malpractice-cases/.

Robert Stanko’s and Andrew Goldstein’s (King of Prussia, PA) article “Increase in Crime Forces Local Businesses Into a Catch-22” was published in the October 29, 2022, issue of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/increase-crime-forces-local-businesses-catch-22.

 

Defense Digest, Vol. 28, No. 12, December 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 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

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Result

Federal Statute Declared Constitutional

In this products liability case, the Supreme Court of Pennsylvania reversed the Superior Court and upheld the constitutionality of the Protection of Lawful Commerce in Arms Act (PLCAA), which resulted in judgment as a matter of law for the defendant manufacturer.

Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Thought Leadership

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

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

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law.