.

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

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

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

$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

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.

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

$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. 

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.

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