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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 28, No. 1, April 2022

April 1, 2022

2022 New Shareholder Class

We are happy to announce that 16 attorneys, 9 women and 7 men, have been elevated to shareholder effective January 1, 2022. The class of new shareholders includes one of the highest percentages—59 percent—of women in the firm’s 60-year history. These new shareholders represent the firm’s four core departments—casualty, professional liability, health care and workers’ compensation—and come from 10 of the firm’s 19 regional offices.

Philadelphia, Pennsylvania
•    Dana A. Gittleman, Professional Liability Department. 
•    Todd J. Leon, Professional Liability Department. 
•    Alesia S. Sulock, Professional Liability Department. 

Pittsburgh, Pennsylvania
•    Ryan M. Krescanko, Casualty Department. 
•    Erin N. Margolin, Casualty Department. 
•    Darren M. Newberry, Casualty Department. 

Harrisburg, Pennsylvania 
•    Karen ‘Missy’ E. Minehan, Health Care Department. 

Wilmington, Delaware
•    Lisa M. Grubb, Casualty Department. 

Roseland, New Jersey 
•    Debra M. Marcus, Health Care Department. 

Mount Laurel, New Jersey
•    Adam E. Levy, Professional Liability Department. 

Melville, New York 
•    Jennifer M. Roberts, Casualty Department. 
•    Sam V. Ruggeri, Casualty Department. 

Purchase, New York 
•    Jennifer M. Meyers, Casualty Department.
•    Steven B. Saal, Casualty Department. 

Cleveland, Ohio
•    Andrew H. Isakoff, Casualty Department. 

Jacksonville, Florida
•    Corey K. Setterlund, Professional Liability Department.
 

Recognition

Marshall Dennehey received the 2021 Champion of the Bar Award from the Philadelphia Bar Association at the Association’s annual member appreciation event. Created in 2020, the Champion of the Bar Award is given annually to a law firm, law department, legal services organization, or law school in Philadelphia that has fully supported the Association through 100% membership, leadership roles, member engagement and contribution to the community through public service.

Colleen Bannon (Philadelphia, PA) was selected among the Top 100 Women Leaders in Law 2021 by the Women We Admire organization. From secretary, to administrative assistant, to IT specialist, to attorney, to Director of Litigation Support, to Director of HR, to Chief Operating Officer—Colleen’s 41-year career with our firm is an inspiration to all women that the sky’s the limit when you have grit and determination and put in the hard work. 

Joan Orsini Ford (King of Prussia, PA) received the 2021 James P. Fox Trial Lawyer of the Year Award from the Montgomery Bar Association Trial Lawyers Section. The award recognizes not only proficiency in the courtroom, but also a dedication to promoting a positive image for attorneys through one’s professional demeanor, service and integrity. In addition, it seeks to acknowledge an attorney who has created a reputation among her peers as a daunting adversary, while remaining a respected colleague. 

Lauren Gandle (Tampa, FL) has been selected as a member of the Hillsborough Association for Women Lawyers Leadership Academy Class of 2021-2022. The Leadership Academy is a multi-session professional development program designed for attorneys seeking to advance their self-advocacy skills, leverage their talent in their legal position, identify leadership strategies and opportunities, create a plan for personal and professional leadership, and network with like-minded leaders. 

Daniel McDermott (Purchase, NY) received the Distinguished Service Award from the American Institute of Marine Underwriters (AIMU). The award is given annually in recognition of outstanding service not only to the AIMU organization, but also to the larger marine insurance community. 

Michele Punturi (Philadelphia, PA) has been approved for nomination by The Board of Governors of the College of Workers’ Compensation Lawyers as a Fellow of the College. Election as a Fellow represents the recognition by colleagues that Michele has distinguished herself as an outstanding professional who has made a sustained contribution to the field of workers’ compensation and met the College’s standards of integrity, professionalism and character. 

Jeremy Zacharias (Mount Laurel, NJ) has been awarded the PLUS Emerging Leader Award from the Professional Liability Underwriting Society. The annual award recognizes young professionals who exhibit the attributes to become future leaders in their organization and industry. Congratulations, Jeremy!
 

Appointments

Josh Byrne (Philadelphia, PA) has been named as Co-Chair of the Philadelphia Bar Association’s Professional Responsibility Committee.

Niki Ingram (Philadelphia, PA) was named Vice President of the Philadelphia Bar Foundation. Niki also serves as the Foundation’s Diversity, Equity & Inclusion Officer. 

Alan C. (A.C.) Nash (Fort Lauderdale, FL) has been appointed to the Board of Directors of the Broward County Chapter of RIMS, the Risk and Insurance Management Society. The RIMS Broward County Chapter strives to promote risk management professionals and elevate the risk management industry through education, community involvement, legislative participation, and networking opportunities. RIMS, a global not-for-profit, is the preeminent organization dedicated to advancing the practice of risk management throughout the world.

Michele Punturi (Philadelphia, PA) has also been selected as a “Risk Insider” contributor to Risk & Insurance magazine. In this capacity, Michele will author two articles per year for publication in the prominent insurance trade magazine. Click here to read Michele’s first article, “Workers’ Compensation Claims Mounting? A Collaborative Review Process Can Help.”
 

Published Articles

Tom Brown (Orlando, FL) and Patrick Delong (Fort Lauderdale, FL) authored the article, “Defending Ride-Hailing and Car-Sharing Claims – Handling Accident-Related Lawsuits in a Sharing Economy,” published in the January 2022 issue of CLM Magazine. Click here to read: https://736506f6.flowpaper.com/CLMJanuary2022/#page=10. 

Josh Byrne (Philadelphia, PA) had two articles published in November. “Employing a Formerly Admitted Attorney” was published by PLUS Blog on November 1, 2021, and can be read at https://marshalldennehey.com/articles/employing-formerly-admitted-attorney. “Remorse and Acceptance, Lessons From the Disbarments and Suspensions of 2021, published in The Legal Intelligencer on November 19th, can be read at https://marshalldennehey.com/articles/remorse-and-acceptance-lessons-disbarments-and-suspensions-2021.

Michael Duffy (King of Prussia, PA) authored the article “Bullying in the Workplace,” which appeared in the December issue of CLM Magazine. Click here to read the full article: https://theclm.org/Magazine/articles/bullying-in-the-workplace/2354?utm_campaign=2062679_CLM%20Mag%20Weekly%2012162021&utm_medium=email&utm_source=CLM&dm_i=37P3,187KN,2WOOPI,4RJZO,1

Allison Krupp and Christopher Woodward (Harrisburg, PA) authored, “Pa. Ruling Leaves Auto Policy Stacking Questions,” for Law360.com. Click here to read: https://marshalldennehey.com/articles/pa-ruling-leaves-auto-policy-stacking-questions

Carolin Pacheco’s (Orlando, FL) article “‘Dodge v. People’s Trust Insurance’ and Its Effect on Coverage of Cast Iron Pipes Claims,” was published in the November 1, 2021, edition of the Daily Business Review. Click to read the article: https://marshalldennehey.com/articles/%E2%80%98dodge-v-people%E2%80%99s-trust-insurance%E2%80%99-and-its-effect-coverage-cast-iron-pipes-claims

Michael Salvati (Philadelphia, PA) authored the article, “After ‘Tincher,’ Evidence of Industry Standards Should be Admissible in PI Litigation,” appearing in The Legal Intelligencer’s Personal Injury Supplement. You can read the article here: https://marshalldennehey.com/articles/after-%E2%80%98tincher%E2%80%99-evidence-industry-standards-should-be-admissible-pi-litigation

Michael Sweeney’s (Mount Laurel, NJ) article “Mandatory Policy Limit Disclosure: How Pre-suit Negotiations in NJ Are Set to Change,” was published in September in the New Jersey Law Journal. Read the article here: https://marshalldennehey.com/articles/mandatory-policy-limit-disclosure-how-pre-suit-negotiations-nj-are-set-change. 

Jeremy Zacharias’s (Mount Laurel, NJ) article “Incorporating DEI Into an Evolving Litigation Practice,” was published in The Legal Intelligencer on November 16th. Read his commentary here: https://marshalldennehey.com/articles/incorporating-dei-evolving-litigation-practice
 

Speaking Engagements

Linda Farrell (Jacksonville, FL) presented “Permanent and Total Disability” for the Association of Workers’ Compensation Claims Professionals.

Brooks Foland (Harrisburg, PA) presented “Joint and Several Liability in 2022” to the Pennsylvania Bar Institute.

Scott Gemberling (Philadelphia, PA) presented “Dram Shop, The Toxicology and the Law” to the National Academy of Continuing Legal Education.

Jessica Julian (Wilmington, DE) presented at the January Workers’ Compensation Breakfast Seminar, hosted by the Delaware State Bar Association. Jessica was part of a panel that discussed “Protocols Post Web-Ex.”

Matthew Keris (Scranton, PA) co-presented an educational session, “Anticipated Liability Risks of Artificial Intelligence in Healthcare,” during the ASHRM Annual Conference held in San Antonio.

Mark Kozlowski (Scranton, PA) presented the webinar “Where to Find Talent & the Do’s/Don’t’s of Interviewing” to the Society for Human Resource Management.

Daniel Krebbs (Philadelphia, PA) participated in the 2021 Dispute Resolution Institute’s Personal Injury Practicum and gave an update on the uninsured/underinsured motorists in Pennsylvania.

Morgan Randle and Teresa Sirianni (Pittsburgh, PA) presented “Employment Claims Involving Law Enforcement: Prepare to Defend” before the Western Pennsylvania Chiefs’ of Police Association. The program highlighted the risks of discrimination and employment-based lawsuits that can arise in law enforcement, along with recommendations and best practices to protect chiefs and ranking officers. Topics included an employment law primer, two interactive and real case studies, information about individual liability and what to do if you are personally named, and hot topics.

Patrick Reilly and Lauren Purcell (Pittsburgh, PA) met with representatives from the Rutgers School of Law Appellate Advocacy Program to discuss liquor law in Pennsylvania. Their discussion was based on a 2020 article they wrote for The Legal Intelligencer’s Liquor Law Supplement titled, “Should Mandatory Liquor Liability Insurance Be in Pa.’s Future?”

Bradley Remick (Philadelphia, PA) presented “Trials in the Pandemic World” at the Door & Access Systems Manufacturers Association Annual Conference.

Courtney Schulnick (Philadelphia, PA) presented “Returning to Normal: Handling Stress Like a PRO” at the recent DRI Professional Liability Seminar.

David Shannon (Philadelphia, PA) moderated the Philadelphia Association of Defense Counsel program, “Cybersecurity: Crucial for a Law Firm’s Survival.” The panel discussed ways to protect ESI and the importance of conducting information security assessments, and how to manage budgeting issues and remote work vulnerabilities.

Robin Snyder (King of Prussia) was a panelist for a roundtable webinar hosted by the Pennsylvania Bar Association. Sponsored by the Large Law Firm Committee, the webinar, “Business and Practice of Law Post-COVID-19: How Will It Change?,” brought together legal leaders for a conversation focused on how law firms are adapting to conducting business post-COVID. Topics included attracting and retaining talent; onboarding and mentoring; balancing hybrid work environments; and building and maintaining client relationships.

Lary Zucker and Sara Mazzola (Mount Laurel, NJ) participated in the the annual “IAAPA/IALDA Legal Roundtable” at the IAAPA EXPO in Orlando, Florida.

 

Defense Digest, Vol. 28, No. 1, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin 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 Warner Coleman & Goggin. 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

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

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. 

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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

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

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.

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.