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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 28, No. 3, October 2022

October 1, 2022

APPOINTMENTS

Melanie Foreman (Philadelphia, PA) and her co-chair of the Leadership Council of Community Legal Services will spearhead CLS’s annual Bar Campaign. The Bar Campaign raises critical funds for CLS from Philadelphia law firms and businesses. Funds raised support the mission of CLS.

Harold Moroknek (Westchester, NY) has been selected to the Executive Committee of the Bus Industry Safety Council (BISC), a division of the American Bus Association. BISC is comprised of security, mechanical, safety, operational and maintenance leaders from across the North American motor coach industry. As an attorney member of the council, Harold advises on legal issues impacting the industry, including litigation strategies for defending, mitigating and avoiding transportation claims.

Charlene Seibert (Pittsburgh, PA) 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.

Stuart Sostmann (Pittsburgh, PA) was elected president of the Pennsylvania Defense Institute (PDI) at the organization’s recent annual conference.

RECOGNITION

Michael Bradford (Tampa, FL) and James Hanratty (Jacksonville, FL) have been selected to the 2022 Florida Trend Legal Elite. Both are recognized for excellence in the Civil Trial category. Honorees represent less than 2% of active Florida Bar members and include attorneys in private practice as well as top government and non-profit attorneys.

A.C. Nash (Fort Lauderdale, FL) received a “Best Mentors Award” from the Daily Business Review.

G. Mark Thompson (Philadelphia, PA) was named to 2022 City & State Pennsylvania’s Law Power 100. The list annually recognizes lawyers who exhibit excellence in the profession of law and are deemed to be some of the state’s most influential leaders.

SEMINARS

Mohamed Bakry (Philadelphia, PA) presented at the Federation of Defense & Corporate Counsel (FDCC) Winter Meeting. His topic was “Two Years Into a Pandemic – What Your Jurors May Be Thinking.” Mohamed was also a panelist at the FDCC Annual Meeting, where he discussed the topic “Anatomy of a Trial: Opening Statement and Closing Argument.” The panel reviewed how to use an opening statement and closing argument to establish why fairness and justice require a favorable verdict for your client. Finally, Mohamed spoke on behalf of the International Association of Defense Counsel (IADC) on “Becoming an Active Ally with a Focus on Allyship With Our Muslim Colleagues: How to Get Involved, Stay Involved, and Educate Others About Racial and Social Injustice.”

Kimberly Kanoff Berman (Fort Lauderdale, FL) participated in an episode of Summarily: A Podcast for Busy Lawyers. In “UNprecedented,” Kim and Adam Richardson of Burlington Rockenbach discussed how Florida state courts and lawyers are treating precedent.

Josh Byrne (Philadelphia, PA) presented at the Pennsylvania Bar Association’s annual Spring 2022 Avoiding Legal Malpractice Program. “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 also co-presented the webinar “Dealing with Difficult Opposing Counsel 2022” for the Pennsylvania Bar Institute. Co-presented with members of the Bar and the judiciary, 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.

Jim Cole (Philadelphia, PA) recently gave two presentations on insurance fraud. He co-presented “Appraisal: The Good, The Bad and The Ugly” at the 2022 Pennsylvania Insurance Fraud Conference in Hershey, PA. Jim also presented, “Fraud Claims: The Real Housewives Edition,” at the 2022 PLRB Claims Conference & Insurance Services Expo in San Antonio, TX.

Benjamin Durstein (Wilmington, DE) presented “The Do’s and Don’ts of Workers’ Compensation Practice” on behalf of the Delaware State Bar Association.

Linda Farrell (Jacksonville, FL) presented “You Had Me at…Avoiding Fee Exposure” at the Association of Workers’ Compensation Claims Professional’s 30th Annual Claims Management and Leadership Conference.

Elizabeth Ferguson (Jacksonville, FL) chaired The Florida Bar’s Construction Law Review Course.

John Hare (Philadelphia, PA) presented Civil Litigation Update 2022 on behalf of the Pennsylvania Bar Institute. John also attended the Commemoration of the 300th Anniversary of the Supreme Court of Pennsylvania at the National Constitution Center in Philadelphia. John was part of a distinguished faculty of scholars, attorneys and jurists at this symposium, which included the Honorable Anthony M. Kennedy, Retired Associate Justice of the United States Supreme Court.

Matthew Keris (Scranton, PA) has been traveling the county giving presentations on RaDonda Vaught criminal verdict and artificial intelligence in health care. Here is a sample of his recent presentations:

American Legal Connections - “Liability Issues With Artificial Intelligence in Healthcare Litigation”

American Society for Healthcare Risk Management - “Best Practices for Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict”

CHART Institute’s virtual conference - “A New Frontier: Maintaining Transparency and Defenses Following the RaDonda Vaught Criminal Verdict”

Duke University’s School of Nursing - “RaDonda Vaught—What Happened and What Can We Learn From Her Trial”

Medical Professional Liability Association - “Artificial Intelligence in Healthcare: Revolutionary or Risky?”

New England Regional Healthcare Risk Management Conference (NERHRMC) - “The New Reality--Managing the EMR and Audit Trail”

Ohio Hospital Association Annual Meeting - “Risks and Legal Aspects of Artificial Intelligence in Health Care”

Thomson Reuters’ Virtual Conference - “Litigation Risks Associated with AI in Healthcare”

Washington Healthcare Risk Management Society Annual Meeting in Seattle, WA - “New Risks With the Application of Artificial Intelligence to Medicine”

West Virginia ASHRM Chapter - “A Hard Task: Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict”

Mark Kozlowski (Scranton, PA) presented “Pay & Benefits – Overtime, Minimum Wage, Compensable Time, Legally Required Benefits” before the members of the Society for Human Resource Management (SHRM).

Paul Krepps (Pittsburgh, PA) was a featured speaker at the Allegheny County Bar Association CLE program, “Law Against Violence.” Paul and a panel of lawmakers, practitioners, academics, and the judiciary covered the current state of the domestic violence prevention system and the pros and cons of adopting Alina’s Law, which would increase electronic monitoring of both parties to domestic violence in an effort to provide protection to the victim. Paul presented, “Impact of Protection from Abuse Orders: A Case Study,” that described the homicide of a victim of domestic violence, observations on the legal system and improvements that were enacted post-investigation. Paul also was a co-presenter at the annual Pennsylvania Defense Institute Conference on the topic of Qualified Immunity.

Mary Kate McGrath and Adam Fulginiti (Philadelphia, PA) presented “Taking the Telemedicine Time-Out,” an educational webinar for the Philadelphia Area Society of Healthcare Risk Management (PASHRM). They discussed the importance of taking “time-outs” to ensure that telemedicine systems comport with regulatory requirements, enhance the quality of patient care, and reduce the potential for malpractice.

Harold Moroknek (Westchester, NY) made a presentation at the Omaha Nebraska CLM Chapter event titled “Where Are You Leaking.” This presentation was a look at controlling costs and reducing claims through minimizing errors and omissions. Additionally, Harold presented for a client on “Assault Analysis” discussing the rise of claim numbers and values nationally in physical and sexual assault cases. Harold also spent time in Atlanta at the Auto Haulers Association of America (AHAA) Spring 2022 meeting. He partnered with Carrie Wall of the Bill Fralic Insurance Group to present “Where Are You Leaking? Pain Points and Missteps: Things That Cost a Motor Carrier Unnecessary Defense and Indemnity Dollars.”

Michael Packer (Fort Lauderdale, FL) presented at the Florida Defense Lawyers Association’s Florida Liability Claims Conference. His seminar, “Investigating a Claim Under a Reservation of Rights,” explored strategies for managing claims that may not be covered and continuing the investigation once a Reservation of Rights has been issued.

Michele Punturi (Philadelphia, PA) presented “The Dawning of the Age of Remote Work” at CLM’s Workers’ Comp and Retail, Restaurant & Hospitality Conference.

Jeff Rapattoni (Mount Laurel, NJ) presented twice at the New England Chapter of IASIU’s annual conference, where he presented “Fraud in Telemedicine” and “Litigation Trends in SIU.” Jeff also gave a presentation to the Illinois Chapter of IASIU entitled “PI’s in the Field – Pre, During & Post COVID & New Manned/Unmanned Surveillance.” Jeff also attended the annual CLM Conference and presented “The CAT’s Out of the Bag: Insurance Fraud in Catastrophic Losses.” Jeff participated remotely in the ILG Annual Conference held in London, when he presented “Financial Institutions (White Collar Crime/Fraud).” Finally, Jeff was recently in Malmo, Sweden, at the International Association of Special Investigation Units European Seminar & Expo where he co-presented “Major Case Preparation.”

Martin Schwartzberg (Long Island, NY) recently made a presentation titled “Ethics for Engineers” to the Long Island Chapter of American Council of Engineering Companies (ACEC).

Dave Shannon (Philadelphia, PA) co-presented at the ILG annual conference and the USLI Cyber Security Conference. On behalf of ILG, Dave participated as a speaker in the program “Cyber (Ransomware).” Dave also gave a seminar entitled “How to Protect Yourself from Hackers, Rogue Employees and Cyber Crime” for USLI at their annual Cyber Security Conference.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) 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’s capabilities from a technological standpoint and described the staffing that is needed for trying a virtual or a hybrid case.

Robert Stanko (Philadelphia, PA) recently presented a webinar for the members of the Dallas Claims Association (DCA) on the topic “Successful Strategies for Effective Mediation.”

OTHER NEWS

Gaylene Coover, office manager of our Jacksonville office, was recently sworn in as a member of the Board of Directors of the Association of Legal Administrators Jacksonville Chapter.

Congratulations to our very own Stephanie Ransom, assistant office manager of our New York City and Roseland, NJ offices, upon her selection to the Association of Legal Administrators (ALA) Certification Committee. This is a national position and follows Stephanie’s tenure as a Vice President on the ALA’s NYC Chapter Board of Directors.

Jeff Rapattoni (Mount Laurel, NJ) was recently interviewed at a recent International Association of Special Investigation Units (IASIU) conference. In this video, he explains how carriers can avoid bad faith by making sure staff gets real training by getting interactive and personal attention. This will ensure people make right and informed decisions. If carriers are prepared and encourage staff to know they have their backs and will indemnify them, people will embrace the challenge of starting a career in insurance. They will not be afraid to do the right things when fighting fraud.

An interview with Jeremy Zacharias (Mount Laurel, NJ) was published by PLUS (Professional Liability Underwriting Society). Jeremy discusses his involvement in PLUS and his career in the liability insurance industry. Interview Link: RPLU Designee Testimonials (plusweb.org).

Published Articles

Josh Byrne’s (Philadelphia, PA) article “Sometimes You Have to Fire Your Client to Avoid Issues” was published in the March 18, 2022, edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/sometimes-you-have-fire-your-client-avoid-issues. Josh also authored the article “Legal Malpractice: Taking a Mistake and Making It a Fiasco,” appearing in the May 18, 2022 edition of The Legal Intelligencer. Click here to read the article: https://www.law.com/thelegalintelligencer/2022/05/17/legal-malpractice-taking-a-mistake-and-making-it-a-fiasco/. Finally, Josh’s 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

Samuel Cohen and Ryan Friels’ (Philadelphia, PA) article “FINRA, the SEC and Congress Aim to Safeguard Senior Investors” was published in the May 12, 2022 issue of The Legal Intelligencer. Click here to read the article: https://marshalldennehey.com/articles/finra-sec-and-congress-aim-safeguard-senior-investors.

Dana Gittleman’s (Philadelphia, PA) recent article “The Importance of Memorializing Insurance Discussions” was posted on PLUS blog. You can read her article here: https://marshalldennehey.com/articles/importance-memorializing-insurance-discussions

Brad Haas’s (Pittsburgh, PA) article “Superior Court Reviews Discoverability of Mental Health Records” was published in the April 7, 2022, issue of Lawyers Journal. You can read the article here: https://marshalldennehey.com/articles/superior-court-reviews-discoverability-mental-health-records

Matthew Keris’s (Scranton, PA) article, “The Evolution of the EMR: The Integration of AI in Medicine,” was published in the March 28, 2022, edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/evolution-emr-integration-ai-medicine

Jeff Rapattoni and Michael Sweeneys’ (Mount Laurel, NJ) article “Beyond Bad Faith: Expanding Bad Faith Damages Fraud-Fighting,” was recently published in the Journal of Insurance Fraud in America for The Coalition Against Insurance Fraud. The article, published March 3, 2022, can be seen at https://insurancefraud.org/publications/jifa-beyond-bad-faith/

Steven Saal’s (Westchester, NY) article “New York State Finalizes Changes to Insurance Disclosure Law” appeared in the May 20, 2022, edition of New York Law Journal. Click here to read this article: https://assets.marshalldennehey.com/content/uploads/2026/04/O-630-by-S.-Saal-05.20.2022-NY-Law-Journal.pdf

Robert Stanko (Philadelphia, PA) authored the article “Commentary: Consequences of SCOTUS Leak Could Be Significant,” appearing in the May 6, 2022 edition of The Legal Intelligencer. You may read the article here: https://www.law.com/thelegalintelligencer/2022/05/06/commentary-consequences-of-scotus-leak-could-be-significant/.

Alesia Sulock (Philadelphia, PA) authored the article “The Attorney-Client Relationship: Keeping the Lines of Communication Open,” appearing on the PLUS Blog. Click here to read: https://plusblog.org/2022/05/09/the-attorney-client-relationship-keeping-the-lines-of-communication-open/.

 

Defense Digest, Vol. 28, No. 3, October 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

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

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.

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.

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. 

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

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.

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ. 

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.