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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

New Shareholders

We are pleased to announce that 13 associates and five special counsel have been elevated to shareholder, effective January 1, 2022. 

  • Elizabeth A. Dietz, an Associate in our Workers’ Compensation Department in Roseland; 
  • Ashley S. Eldridge, an Associate in our Workers’ Compensation Department in Philadelphia;
  • Dana A. Gittleman, an Associate in our Professional Liability Department in Philadelphia;
  • Lisa M. Grubb, an Associate in our Casualty Department in Wilmington;
  • Andrew H. Isakoff, a Special Counsel in the Casualty Department in Cleveland;
  • Ryan M. Krescanko, an Associate in the Casualty Department in Pittsburgh;
  • Todd J. Leon, a Special Counsel in the Professional Liability Department in Philadelphia.
  • Adam E. Levy, a Special Counsel in the Professional Liability Department in Mt. Laurel.
  • Debra M. Marcus, a Special Counsel in the Healthcare Department in Roseland.
  • Erin N. Margolin, an Associate in the Casualty Department in Pittsburgh.
  • Jennifer M. Meyers, an Associate in the Casualty Department in Westchester.
  • Missy Minehan, a Special Counsel in the Healthcare Department in Harrisburg.
  • Darren M. Newberry, an Associate in the Casualty Department in Pittsburgh.
  • Jennifer M. Roberts, an Associate in the Casualty Department in Melville.
  • Sam V. Ruggeri, an Associate in the Casualty Department in Melville.
  • Steven B. Saal, an Associate in the Casualty Department in Westchester. 
  • Corey K. Setterlund, an Associate in the Professional Liability Department in Jacksonville.
  • Alesia S. Sulock, an Associate in the Professional Liability Department in Philadelphia.

Recognition

Buck Buchanan (Philadelphia, PA) received the 2021 Renaissance Man Award From the Philadelphia Chapter of the National Bar Association Women Lawyers Division. Buck was recognized during the organization’s virtual “Jazz in June” awards ceremony and cocktail reception. The annual award recognizes an African American man who has demonstrated commitment to the empowerment, advancement and full participation of women of color in the legal profession. It additionally honors a legacy of professional excellence and commitment to the African American legal community, including support of the NBA/WLD.
 

Published Articles

Kimberly Berman (Fort Lauderdale, FL) authored the article “Decision Creates Potential for Legal Malpractice Actions Against Retained Defense Attorneys,” in the Daily Business Review. You can read the article here: https://www.law.com/dailybusinessreview/2021/07/30/decision-creates-potential-for-legal-malpractice-actions-against-retained-defense-attorneys/. 

Josh Byrne (Philadelphia, PA) recently authored an article entitled “Preparing for the Worst: Considerations in Purchasing Legal Malpractice Insurance—Part I,” for The Legal Intelligencer. You can read this article here: https://marshalldennehey.com/articles/preparing-worst-considerations-purchasing-legal-malpractice-insurance%E2%80%94part-i. 

Karen Grethlein and David Shannon (Philadelphia, PA) co-authored the article “Cyber Threats: Why the Construction Industry Could be the Next Big Target,” which was published in The Legal Intelligencer, Construction Law Supplement on August 12, 2021. The article can be read here: https://marshalldennehey.com/articles/cyber-threats-why-construction-industry-could-be-next-big-target. 
    
Kiara Hartwell (Mount Laurel, NJ) answers the question “What does the future hold for current COVID-19 workers’ compensation claims?” in an article from the June 2021 issue of CLM Magazine. You can read “Consulting the Comp Crystal Ball” here: https://bit.ly/3qAwhQ5. 

Megan Nelson (Orlando, FL) authored the article, “Am I Getting Fired? How to Handle Meetings With Your Facility’s Attorney,” which was published in the September 2021 issue of Orlando Medical News. You may read the article here: https://www.orlandomedicalnews.com/article/5034/am-i-getting-fired-how-to-handle-meetings-with-your-facilitys-attorney

Tony Natale (Philadelphia, PA) authored the article, “The State of Pay for Play – College Athletes as Employees and the Implications for Workers’ Compensation,” appearing in the September 2021 issue of CLM Magazine. The article discusses how college athletes are inching closer to being recognized as “employees” of their schools, and what the implications are for workers compensation. Click to read the article: https://736506f6.flowpaper.com/CLMSeptember2021/#page=30 

David Shannon (Philadelphia, PA) recently authored the article, “Kaseya Data Breach Is Another Signal to Cyber Underwriters About the Dangers of Ransomware Attacks,” for PLUS Blog. You can read this article here: https://plusblog.org/2021/07/19/kaseya-data-breach-is-another-signal-to-cyber-underwriters-about-the-dangers-of-ransomware-attacks/. 

Frank Wickersham (King of Prussia, PA) authored the article “Blurred Lines: A Breakdown of Conventional Workplace Boundaries During the Pandemic,” published in Pennsylvania Law Weekly. You can read the article here: https://marshalldennehey.com/articles/blurred-lines-breakdown-conventional-workplace-boundaries-during-pandemic. 
 

Speaking Engagements

Robert Aldrich (Scranton, PA), Patrick Reilly (Pittsburgh, PA) and Charlene Seibert (Pittsburgh, PA) presented at the Pennsylvania Defense Institute 2021 Annual Conference. Pat was a panelist presenting on the topic “The New Marketing Tool—Creating a Podcast that People Want to Hear.” Robert was a moderator for the topic “Legal Marketing on LinkedIn—Learn How Law Firms are Leveraging LinkedIn’s Unique Data and Environment to Engage Clients and Prospects to Grow Their Business.” Charlene was a panel member discussing “Legal Malpractice Concerns in the New Remote World—Ethics Complaints, Legal Malpractice Actions, and Protecting Your Practice in the Post-COVID-19 –World.”

Mohamed Bakry (Philadelphia, PA) moderated a panel at the Defense Research Institute’s Diversity for Success seminar. In their session, “A Conversation About Racial Justice in America,” Mohamed and panelists explored the inequities related to racial justice and addressed ways to move the dialogue into action so that the cycle of injustice can be broken.

Buck Buchanan (Philadelphia, PA) was among a panel of leaders for the Philadelphia Bar Association Virtual Spring Quarterly. Featuring Peter Cappelli, from The Wharton School, the panel discussed “Workplace Culture, Equity and Safety as Our Community Emerges From a Global Pandemic.”

Josh Byrne and Alesia Sulock (Philadelphia, PA) presented “Legal Malpractice Avoidance” to a number of local bar associations. They made this presentation to the Philadelphia Bar Association, the Monroe County Bar Association and the Chester County Bar Association. 

Peggy Smith Bush (Orlando, FL), Leonard Leicht (Roseland, NJ) and Harold Moroknek (Westchester, NY) presented “Rules of the Trucking Industry: Staying on Track!” at the virtual Transportation Lawyers Association Annual Conference. The panel discussed the new FMCSA regulations and the impact of the New Drug and Clearing House Rules. They also discussed updates in the Hours of Service Rules, the effect of national declarations entered during the COVID-19 pandemic, new requirements for CDL driving academies, and legal and practical issues in setting up a truck driving training school.

Several of our attorneys returned as faculty this September for the 2021 CLM Claims College. Christopher Block (Roseland, NJ) served as faculty with the School of Casualty, and Michael Packer (Fort Lauderdale, FL) and James Cole (Philadelphia, PA) were both instructors for the School of Property Claims. The Claims College is an educational experience designed to help educate and grow industry claims professionals and the industry. Each school within the college is comprised of three levels and participants who successfully complete all levels in a particular school receive a CLM designation reflecting their education and commitment to the profession.

Alicia Caridi (Tampa, FL) co-presented to the Roller Skating Association’s 2021 Sk8Expo in Clearwater Beach, Florida. Alicia and Jerry Landers, the president of IALDA, presented live and via Zoom on the topic of “Surveillance as Pertains to the Industry.”

Samuel Cohen, Gerry Kowalski, and Ryan Friel (Philadelphia, PA) presented “Claims Involving Life Insurance Impacting Life Agents and Broker Dealers” at the Independent Broker Dealer Consortium. Held in Bluffton, South Carolina, this annual conference is primarily attended by broker dealers, insurance brokers and E&O carriers. 

Jim Cole (Philadelphia, PA) co-presented “US/Canadian Litigation in a Post-COVID-19 World” at the Insurance Law Global and Lloyd’s Market Association Young Professionals Virtual Boot Camp webinar series. This free webinar explored how the pandemic has impacted insurance litigation across the U.S. and Canada. 

Joan Ford (King of Prussia, PA) was a panelist at The American Board of Trial Advocates program and CLE, “How to Succeed: Career Lessons from Veteran Female Trial Lawyers as We Face the Consequences of the COVID-19 Pandemic.” Attendees learned from veteran female trial lawyers as they shared the insights and experiences that led to their success and discussed best practices for career development as we face the consequences of the COVID-19 pandemic.

Janice Merrill, Chanel Mosley and Megan Nelson (Orlando, FL) presented at the Florida Society for Healthcare Risk Management & Patient Safety Annual Meeting & Education Conference. In “Adversity in the World of Adverse Incident Reporting: A Panel Discussion on Reporting Requirements and Addressing Related Discovery,” they discussed Amendment 7 and the requirements for reporting and investigating potential adverse events, including the impact of adverse events related to COVID-19. The program also highlighted best practices for complying with the reporting requirements while preserving the attorney-client communication, work product and peer review privileges.

Robin Romano (Philadelphia, PA) participated in a panel discussion, “Emotional Intelligence: The Art of Friendly Persuasion,” held by the Philadelphia Bar Association.

Anthony Williott (Pittsburgh, PA) was a panelist for a webinar, “Pain and Suffering in Personal Injury: Doctor, Plaintiff, and Defense Perspectives.” The program included doctor and attorney insights to provide the audience with concrete instruction for handling non-economic damages. Topics included how doctors assess the severity and cause of pain, understanding how an adjuster will value a claim, presentation strategies that will help deliver maximum offers and jury verdicts and defense tactics for managing excess exposure and avoiding runaway verdicts.

 

Defense Digest, Vol. 27, No. 5, December 2021 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. © 2021 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

Result

$19 Million Medical Malpractice Verdict Overturned

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

Thought Leadership

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

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

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. 

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

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

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

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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.

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

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.