.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 3, June 2021

June 1, 2021

Appointments

Niki Ingram (Philadelphia, PA) has been named the first-ever Diversity, Equity & Inclusion Officer of the Philadelphia Bar Foundation. The position was created following the nationwide demonstrations against police brutality and racial injustices over the summer of 2020. “Racism is prevalent in all civil legal matters, from housing to unemployment to immigration, and the work of civil legal aid agencies is critical in the fight for racial justice,” said Jessica R. Hilburn-Holmes, Executive Director of the Philadelphia Bar Foundation. “The Bar Foundation is committed to this fight and to doing the work in order to promote a better, more equitable Philadelphia community. The addition of a DE&I Officer is a first step toward that goal – and we couldn’t find a more competent nor passionate person to lead this charge than Niki Ingram.” Niki joined the Philadelphia Bar Foundation for a three-year Board term in 2019.

Recognition

Marshall Dennehey Announces 2021 New Jersey Super Lawyers and Rising Stars. Eight attorneys from the Mount Laurel and Roseland, New Jersey, offices have been selected to the 2021 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, New Jersey Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in the state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

The firm’s New Jersey Super Lawyers include:

  • Leonard Leicht, Civil Litigation Defense and Transportation/Maritime. Leonard concentrates his practice in defending significant commercial motor vehicle, personal injury, employment, civil rights and professional liability matters. Recognized by the Supreme Court of New Jersey as a Certified Civil Trial Attorney, he has handled precedent-setting appellate matters before the Supreme Court and Appellate Division of New Jersey, and regularly represents clients in administrative, disciplinary and labor hearings.
  • John L. Slimm, Professional Liability Defense. Jack has devoted the majority of his 40-year career to the representation of attorneys, accountants, architects and engineers, directors and officers, and investment and insurance professionals in litigation.
  • Lary I. Zucker, Personal Injury Defense and Entertainment & Sports Defense. Lary co-chairs the firm's Amusements, Sports & Recreation Practice Group and has 48 years of litigation experience.

The firm’s New Jersey Super Lawyer Rising Stars include:

  • Ariel Brownstein, Insurance Coverage. Ariel focuses his practice on insurance fraud and SIU litigation, with an emphasis on medical provider fraud and large loss fraud.
  • Christopher DiCicco, Transportation/Maritime Litigation. Chris focuses his practice on admiralty and maritime litigation, including maritime personal injury cases and marine construction cases. He also handles trucking and aviation cargo defense matters. He is admitted to practice in both New Jersey and New York, and he actively handles litigation in both states.
  • Ryan Gannon, Personal Injury, Medical Malpractice Defense. Ryan focuses on medical malpractice and nursing home malpractice litigation.
  • Heather LaBombardi, Medical Malpractice Defense. Heather defends health care practitioners and facilities in medical malpractice and health care liability matters.
  • Sara Mazzolla, Personal Injury, General, Defense. Sara defends matters involving premises liability, amusements, sports and recreation, construction, automobile and condominium/community association law. She also defends professional liability claims involving sports coaches and real estate professionals.

Published Articles

William Banton (Philadelphia, PA) and Paul Laughlin (Allentown, PA) authored the article “Child Protective Services Law: Implications for Behavioral Health Organizations,” which appeared in the March/April issue of The Pennsylvania Lawyer. Click here to read the article.

Ryan Burns (Fort Lauderdale, FL) authored the article “Understanding Florida’s Sweeping New Immunity Law for COVID-19 Claims,” which was published on April 15, 2021, in Insurance Journal’s Southeast edition. You may read the article at this link.

Peggy Smith Bush (Orlando, FL) contributed the article, “How to Get Your Business Relationships – and Yourself – Back on Track After a Year of Isolation,” to the Orlando Business Journal. Peggy is an active member of The Florida Bar’s Mental Health and Wellness of Florida Lawyers Committee and is pursuing a master of professional studies psychology of leadership degree from Penn State University.

Christopher Conrad (Harrisburg, PA) wrote an article titled “Bullies In the Schoolyard and Beyond: Avoiding and Defending Federal Bullying Claims Against Schools and School Leaders” for the Pennsylvania Liability Defense Quarterly. Click here to read.

Bridget Mead (Philadelphia, PA) and faculty from Drexel University Thomas R Kline School of Law and Catholic University authored an article published in the Singapore Academy of Law, Special Issue on Law and Technology. Titled, “Defensibility: Changing the Way Organisations Approach Cybersecurity and Data Privacy,” the article discusses the Equifax data breach and analyzes shortcomings in traditional approaches to cybersecurity and data privacy by first examining current laws, rules and regulations across the globe. You may access the article at this link: https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/Current-Issue/ctl/eFirstSALPDFJournalView/mid/503/ArticleId/1599/Citation/JournalsOnlinePDF.

Michelle Michael (Roseland, NJ) authored the article, “NJ Supreme Court Confirms Scope and Application of Pregnant Workers Fairness Act,” appearing in the New Jersey Law Journal.

Steven Petramale (Pittsburgh, PA) authored an article appearing in The Legal Intelligencer’s Medical Malpractice Supplement. The article, “Courts’ Interpretations of Statutes Demonstrate Shifting Landscape for Defense Bar,” discusses the recent interpretations of the Peer Review Protection Act, MCARE Act, Patient Safety and Quality Improvement Act, and the Health Care Quality Improvement Act, as well as methods that attorneys can employ to maintain privilege over certain documentation. Read the article here.

Alesia Sulock (Philadelphia, PA) authored “Reinstating the Two-Year Statute of Limitations for Legal Malpractice Claims,” in which she discusses the “gist of the action doctrine” in Pennsylvania and its impact on legal malpractice claims. Published in The Legal Intelligencer, you can read the article here.

Jeremy Zacharias’ (Mount Laurel, NJ) article, “The Impact of COVID-19 on the Global IPO Marketplace,” was published by PLUSBlog on March 15, 2021. To read, click here.

Speaking Engagements

Robert Aldrich (Scranton, PA) presented at the Pennsylvania Association for Health Care Risk Management Spring Conference. This webinar was offered in conjunction with the Pennsylvania Defense Institute. Rob’s presentation focused on the 21st Century Cures Act.

Heather Carbone (Jacksonville, FL) presented “Average Weekly Wage and Indemnity Benefits (Other than PTD)” at the 2021 Florida Bar Workers’ Compensation Forum. Conference attendees included adjusters, case managers, vocational experts, supervisors, managers, attorneys and executives from the Florida workers’ compensation claims community.

Jim Cole (Philadelphia, PA), Jon Cross (Philadelphia, PA), AC Nash (Fort Lauderdale, FL), Matt Schorr (Roseland, NJ), Dave Shannon (Philadelphia, PA), Sunny Sparano (Roseland, NJ) and Vlada Tasich (Philadelphia, PA) recently participated in ILG WEEK. “Insurance Claims Snapshots from Around the Globe” was a week-long series of practice area-specific webinars in areas such as concussion litigation, autonomous vehicles, ransomware attacks, changes in the construction industry, COVID-19 and business interruption claims, and negligent security. All of our presenters guided participants through case studies and interactive sessions, addressing key issues of importance to claims professionals and insurance industry personnel.

Ashley Eldridge (Philadelphia, PA) was a speaker at the Dispute Resolution Institute’s Person Injury Potpourri, presenting “COVID-19 and Workers' Compensation.” Ashley also spoke at Philly I-Day. In “Professional Development Trends, Emerging Topics in Learning and Leadership Development,” Ashley joined senior learning leaders representing a wide swath of the industry, including a major personal lines carrier and an international property casualty carrier, to learn about professional development trends, including emerging topics in training, learning and development, as well as leadership development.

Brooks Foland (Harrisburg, PA) presented at the Pennsylvania Defense Institute’s Lunch Time Webinar, “With Vehicle Technologies in the Fast Lane, How Can We Keep Up?” Brooks co-chairs the PDI’s Motor Vehicle Committee. The webinar addressed the new technologies in motor vehicles and their use in gathering relevant evidence for litigated cases.

John Hare (Philadelphia, PA) spoke at the Civil Litigation Update 2021 presented by the Pennsylvania Bar Institute on March 4, 2021.

Niki Ingram (Philadelphia, PA) was a panelist at a recent webinar hosted by the Philadelphia Association of Defense Counsel. “How Women Judges and Lawyers Succeed During Challenging Times” featured an esteemed panel of women in the legal profession offering advice and sharing real life experiences on how to move forward while overcoming obstacles, juggling work life with personal life and maintaining civility.

Ben Nicolosi (Scranton, PA) recently made a virtual presentation for the Luzerne County Bar on “An Overview of Pennsylvania Premises Liability Law.”

Kacey Wiedt (Harrisburg, PA) presented at the County Commissioners Association of Pennsylvania’s (CCAP) “Controlling Workers' Compensation Costs Workshop” on March 18. The rapid-fire spread of the coronavirus over the course of the past year has employers concerned about the health and safety of their employees. As the pandemic continues, many are also wondering if there is workers’ compensation coverage for employees who contract the virus. In this session hosted by the CCAP, Kacey discussed the importance of working together during the pre-litigation phase to properly manage COVID-19 claims and mitigate risk.

Media Commentary

Raphael Duran (Philadelphia, PA) was a guest speaking on WPHT Talk Radio. Raph and his fellow panelists—JB Dilsheimer of Stampone O’Brien Dilsheimer Law and Geoff Dlin of Krasno Krasno Onwudinjo—discussed different litigation styles (such as when to be a bulldog and when to be cooperative), and how it impacts workers’ compensation cases. Various claims were discussed involving subrogation, catastrophic and minor claims. The effectiveness of various litigation styles, in the speakers’ respective specialties, was also debated.

Matt Keris (Scranton, PA) was interviewed by NBC News and ED Legal Letter. In a March 4, 2021, report titled, “Kentucky Mom Alleges Hospital Workers Missed Her Cancer -- Then Covered Up Their Mistake,” by NBC NEWS, Matt commented on how audit trail litigation is driving up the cost of medical malpractice lawsuits. The full article can be read here. Matt was also quoted in ED Legal Letter in the March 2021 article, “Misdiagnosis Top Allegation in Aortic Dissection Malpractice Claims.” The full article can be found here.

 

Defense Digest, Vol. 27, No. 3, June 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

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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

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.

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

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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