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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 4, September 2021

September 1, 2021

Appointments

Karen Grethlein (Philadelphia, PA) has been re-appointed for a three-year term as the Young Lawyer Delegate for Philadelphia in the Pennsylvania Bar Association House of Delegates.

Josh J.T. Byrne (Philadelphia, PA) has been appointed co-chair of the Pennsylvania Bar Association’s Amicus Curiae Brief Committee. The position became effective May 21, 2021, and will terminate at the close of the 2022 PBA Annual Meeting. Josh has drafted or co-authored several amicus curiae briefs on behalf of the Pennsylvania Bar Association in his capacity as co-chair of its Professional Liability Committee.

Recognition

For the ninth year running, Marshall Dennehey was selected by the Philadelphia Business Journal as one of the Philadelphia region’s “Best Places to Work.” The award recognizes our achievements in creating a positive work environment that attracts and retains employees through a combination of benefits, working conditions and company culture. We have been recognized as a “Best Place to Work” every year since 2013, winning the extra large company category in 2017, 2019 and 2020. Hundreds of companies submitted nominations to the program, which ranks the top employers according to scores given to the companies by their own workers. Our Delaware Valley locations, including our Philadelphia headquarters and offices in King of Prussia and Mount Laurel, New Jersey, were included in the survey. “We are always pleased to learn that we have been selected, but this year might be the sweetest of all,” said Marshall Dennehey President and CEO, G. Mark Thompson. “Our employees rose to every challenge presented by the pandemic, and then some. We are so grateful for their hard work and dedication, and we will continue to do whatever we can to maintain and improve our working environment so that all of our employees are engaged and have the opportunity to succeed.”

The Philadelphia Chapter of the National Bar Association Women Lawyers Division (NBA/WLD) selected Butler “Buck” Buchanan (Philadelphia, PA) as the 2021 recipient of its annual Renaissance Man Award. The 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. Buck “accepted” the award during the organization’s virtual Jazz in June Awards Ceremony and Cocktail Reception on June 17, 2021. Congratulations, Buck!

Elizabeth Ferguson (Jacksonville, FL) has been recognized in Florida Trend magazine’s 2021 Legal Elite list in the category of Construction law. Elizabeth was previously featured on the Legal Elite list in 2014, 2018 and 2020, as well as the Up & Comers list in 2008 and 2010-2013. Now in its 18th year, Florida Legal Elite presents the state’s top licensed and practicing attorneys selected by their peers. The resulting list represents less than 2% of the active Florida Bar members who practice in Florida. Elizabeth has been Board Certified in Construction Law by The Florida Bar since 2009, and she is a former board member of the Florida Board of Professional Engineers. She is a Construction Panel Arbitrator for the American Arbitration Association, has served as a professor of Construction Law, and is a frequent speaker on legal and construction industry issues. Additionally, she is a past president of the Jacksonville Bar Association.

Daniel McDermott and Edward Radzik (New York, NY) have once again been cited as “Notable Practitioners” in the 2021 edition of Chambers USA. Both attorneys were recognized in the Transportation: Shipping/Maritime: Litigation (New York), Nationwide Band 3 category. Dan was described by clients as, “His counsel is always sound and he approaches things in a practical manner.” Clients remarked of Ed: “He is a solid cargo attorney who is knowledgeable and a formidable opponent.” Congratulations to Dan and Ed!

2021 Florida Super Lawyers & Florida Rising Stars

Seven attorneys from our Florida offices have been selected to the 2021 edition of Florida Super Lawyers magazine. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. Our attorneys selected to the 2021 Florida Super Lawyers list include:

  • Michael J. Bradford, Civil Litigation Defense.
  • Michael J. DeCandio, Construction Litigation.
  • Elizabeth B. Ferguson, Construction Litigation.
  • Alan C. “A.C.” Nash, Civil Litigation Defense.

Our attorneys selected to the 2021 Florida Super Lawyers Rising Stars list include:

  • Julie Cunningham Aiello, Transportation & Maritime.
  • Amanda J. Podlucky, Personal Injury Defense.
  • Irene Thaler, Insurance Coverage.

2021 Pennsylvania Super Lawyers and Rising Stars

Forty-five attorneys from our Pennsylvania offices have been selected to the 2021 edition of Pennsylvania Super Lawyers magazine. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. Receiving special recognition for the 16th consecutive year is Dan Sherry (King of Prussia, PA), who has been named to the “Top 100 Attorneys in Pennsylvania” and the “Top 100 Attorneys in Philadelphia” Super Lawyer lists. For the fourth year in a row, John Hare (Philadelphia, PA) was named to the “Top 100 Attorneys in Pennsylvania” and the “Top 100 Attorneys in Philadelphia” Super Lawyer lists. Our 2021 Pennsylvania Super Lawyers include:

  • Harrisburg: Brooks Foland, John Ninosky, Edwin Schwartz
  • King of Prussia: Audrey Copeland, Kevin Fitzpatrick, Chandler Hosmer, Edward McGinn, Donna Modestine, Stephen Ryan, Daniel Sherry
  • Philadelphia: William Banton, Ralph Bocchino, Kimberly Boyer-Cohen, Buck Buchanan, Raphael Duran, Scott Gemberling, Tiffany Giangiulio, John Hare, Niki Ingram, Kate Kramer, Bruce McKissock, Michele Punturi, Bradley Remick, Daniel Ryan, Joseph Santarone, Vlada Tasich, Mark Thompson, Michael Turner, Thomas Wagner
  • Pittsburgh: Dennis Roman, Stuart Sostmann

Our 2021 Pennsylvania Super Lawyer Rising Stars include:

  • Harrisburg: Brittany Bakshi
  • Philadelphia: Nicholas Bowers, Lee Durivage, Ashley Eldridge, Dana Gittleman, Andrew Goldstein, Kimberly House, Robert Stanko, Alesia Sulock, Daniel Tran
  • Pittsburgh: Jillian Corbett, Gregory Graham, Patrick Reilly
  • Scranton: Mark Kozlowski

Published Articles

Kimberly Berman (Fort Lauderdale, FL) was featured in Law.com’s “How I Made Partner” series. The article discusses her career trajectory from law school to now. Read the article: https://www.law.com/2021/05/04/how-i-made-partner-i-opened-the-door-to-partnership-by-becoming-an-appellate-specialist-says-kimberly-berman-of-marshall-dennehey/.

Josh J. T. Byrne (Philadelphia, PA) authored the article “How Are You Incorrectly Using Your IOLTA Account (Part II)?,” appearing in the May 18, 2021, issue of The Legal Intelligencer. Read the article here: https://www.law.com/thelegalintelligencer/2021/05/18/how-are-you-incorrectly-using-your-iolta-account-part-ii/.

Heather LaBombardi and Nataliana Guida (Roseland, NJ) authored the article “Vicarious Liability—Do You Really Need an Affidavit of Merit?” for the New Jersey Law Journal. Read the article here: https://www.law.com/njlawjournal/2021/05/06/vicarious-liability-do-you-really-need-an-affidavit-of-merit/.

Amanda Podlucky (Orlando, FL) authored the article “Incident Prevention and Response Hits Close to Home,” appearing in the May 19, 2021, issue of Multi-Housing News. Read the article here: https://www.multihousingnews.com/post/incident-prevention-and-response-hits-close-to-home/.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) authored an article entitled “Strategy Is Key for Opening Statements and Closing Arguments,” which is featured in the NJSBA’s June 2021 edition of the New Jersey Lawyer Magazine. In this article, Jack and Jeremy address the importance of forming a sound litigation strategy in preparing opening statements and closing arguments and explain what can and cannot be said during openings and closings and discuss objections that could be made during the opening statements and closing arguments. Read this article at https://marshalldennehey.com/articles/strategy-key-opening-statements-and-closing-arguments.

Speaking Engagements

Mohamed Bakry (Philadelphia, PA), a member of the firm’s Diversity Committee, moderated a presentation at the 2021 DRI Diversity For Success seminar in New Orleans, Louisiana. 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.

Butler Buchanan (Philadelphia, PA) joined a panel to discuss “Workplace Culture, Equity and Safety as Our Community Emerges From a Global Pandemic” at the Philadelphia Bar Association’s Virtual Spring Quarterly.

Peggy Bush (Orlando, FL), Leonard Leicht (Roseland, NJ) and Harold Moroknek (Westchester, NJ) presented the webinar “Rules of the Trucking Industry: Staying on Track!,” at the recent Transportation Lawyers Association (TLA) Annual Conference.

James Cole (Philadelphia, PA) participated in the Insurance Law Global and Lloyd’s Market Association Young Professionals Virtual Boot Camp. He co-presented “US/Canadian Litigation in a Post-COVID-19 World.”

Ashley Eldridge (Philadelphia, PA) was a speaker at the Dispute Resolution Institute’s Personal Injury Potpourri, presenting “COVID-19 and Workers’ Compensation.”

Michele Frisbie (King of Prussia, PA) presented “Personal Injury Exculpatory Clauses” on behalf of Stafford Publishing. This CLE webinar guided counsel in personal injury cases in interpreting, challenging or defending exculpatory clauses, the use of which invites a whole host of legal issues and public policy concerns. The program explored the difference between exculpation from liability arising out of a familiar activity with a well-defined set of risks with exculpation for injuries from novel and undefined risks. The program discussed how exculpatory clauses fare in real-world contexts—such as commercial leases, product liability, healthcare and sports.

Adam Fulginiti, Mary Kate McGrath (Philadelphia, PA) and Jeffrey Rapattoni (Mount Laurel, NJ) presented “Charting the Course of Telehealth in the Post-COVID Landscape” as part of the ASHRM Webinar Series. The session focused on the fundamental principles and best practices to help ensure that telemedicine systems work in tandem with AI-based insurance systems, comport with regulatory requirements and avoid the potential for malpractice.

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

Kevin Hexstall (Philadelphia, PA) was a featured speaker at the Perrin Conferences’ In-House Counsel Perspectives Symposium. Kevin’s session was titled, “Maintaining Relationships With Outside Counsel.”

Howard Mankoff (Roseland, NJ) was a featured speaker at the New Jersey State Bar Association Annual (virtual) Meeting. Howard participated on a panel that discussed “Successful Mediation of Employment Disputes: Common Pitfalls and Strategies to Dig Out!” The presentation focused on the widely differing mediation expectations and lack of preparation; particular challenges of multi-party cases; adversaries with at-odds negotiation styles; and how to get the most value from virtual mediations.

Michele Punturi (Philadelphia, PA) presented “Changing the Employee Safety and Wellness Mindset to Reduce Workers’ Compensation Costs and Avoid Liability” at CLM’s Workers’ Compensation and Retail, Restaurant & Hospitality Conference.

Eric Reichenberger (Fort Lauderdale, FL) was a co-presenter for “Not Fun & Games: Litigating Injury Claims Involving Minors” at the DRI Retail & Hospitality Virtual Seminar. Eric and panel discussed hospitality companies, and in particular theme park owners and operators, facing a disproportionate number of claims made on behalf of minors. Presenters also reviewed how in-house counsel and outside litigators can best adapt to defend those claims in court and in the public arena.

Our firm was well-represented at the latest Pennsylvania Defense Institute’s annual conference. Patrick Reilly (Pittsburgh, PA) co-presented “The New Marketing Tool—Creating a Podcast that People Want to Hear.” Robert Aldrich (Scranton, PA) participated in “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.” Finally, Charlene Seibert (Pittsburgh, PA) co-presented “Legal Malpractice Concerns in the New Remote World—Ethics Complaints, Legal Malpractice Actions, and Protecting Your Practice in the Post-COVID-19 –World.”

 

Defense Digest, Vol. 27, No. 4, September 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

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.

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.

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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

Statutory Employer Immunity Upheld

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

Result

Federal Statute Declared Constitutional

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

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. 

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.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars