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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 2, March 2021

March 1, 2021

Appointments

The Professional Liability Defense Federation (PLDF) has named Christopher Conrad (Harrisburg, PA) as chair of the newly formed School Leaders Liability Claims Committee.

The Professional Liability Underwriting Society (PLUS) has named Jeremy Zacharias (Mount Laurel, NJ) as vice chair of the Future PLUS committee for the 2021 term. As vice chair of the committee, Jeremy will work directly with the committee chair to facilitate various sub-committees that focus on mentorship, networking and outreach of PLUS throughout the insurance industry. Jeremy is also coordinating an effort with PLUS to implement a global PLUS mentorship initiative that will pair senior insurance professionals with Future PLUS members new to the field.

Jacqueline Reynolds (King of Prussia, PA) has been elected president of the Montgomery Bar Association. She will serve a one-year term, beginning January 8, 2021. Jackie has a long history of involvement with the Montgomery Bar Association. Throughout her 23 years of membership, she has served as a member of the Board of Directors, chair of Women in the Law, president of the Trial Lawyers Section and a member of the Medical Legal Society, Membership Committee and the Civil Rules Committee.

Recognition

Frank Leanza (Roseland, NJ) has been named by corporate counsel to the BTI Client Service All-Stars 2020. He is one of only 475 attorneys selected nationwide. To become an All-Star, an attorney must be identified by corporate counsel for superior client service -- client service exceeding all others. No attorney can lobby to be added to the list, there is no self-submission process, and law firms cannot provide names of clients to be contacted. Those selected are the end result of nearly 350 in-depth, independent interviews with legal decision makers at the world’s leading organizations.

Jeremy Zacharias (Mount Laurel, NJ) was awarded the RPLU designation from the Professional Liability Underwriting Society. The RPLU (Registered Professional Liability Underwriter) designation is the only professional credential exclusively for people in the professional liability industry. It is conferred on professionals who complete a rigorous insurance curriculum and meet the PLUS experience and ethics requirements.

Published Articles

Mike Duffy (King of Prussia, PA) authored the article “Is There a Doctor In the House?” This article discusses the use of telemedicine in workers’ compensation cases. Published in the November 2020 issue of CLM Magazine, you can read the article here. https://online.pubhtml5.com/adfn/wngy/#p=16

Kimberly Berman (Fort Lauderdale, FL) authored the article “Florida Courts Clarify Role of Appraisal in Coverage Claim Disputes,” appearing in the Southeast edition of Insurance Journal magazine. https://www.insurancejournal.com/news/southeast/2020/12/10/593271.htm. Kim and Eric Reichenberger’s (Fort Lauderdale, FL) article “Florida Adoption of Federal Judgment Standards a Win for Insurers” was published by Insurance Journal, Southeast Edition. The article, published on January 6, 2021, can be seen at https://www.insurancejournal.com/news/southeast/2021/01/06/596241.htm.

Mary Kate McGrath, Adam Fulginiti (Philadelphia, PA) and Jeffrey Rapattoni (Mount Laurel, NJ) authored the article “How COVID-19 Accelerated Telehealth In 2020” for Law360.com. The article examines the technological, legal and logistical trajectory of telehealth in 2002. Click here to read the full article. Jeff also authored “Forecasting the Future of SIU Claims in a Post-COVID-19 World,” which was posted on December 15, 2020, on PropertyCasualty360.com. https://www.propertycasualty360.com/2020/12/15/forecasting-the-future-of-siu-claims-in-a-post-covid-19-world/?cmp_share.

Courtney Schulnick (Philadelphia, PA) has recently had two articles published. “The Difference Mindfulness Can Make: Help Bring the Practice to Children,” was published in the December 2020 issue of The Philadelphia Bar Reporter. You can read this article at https://marshalldennehey.com/articles/difference-mindfulness-can-make-help-bring-practice-children. “Mindfulness Meditations” was published in the December 16, 2020, edition of the DRI publication, The Voice. https://marshalldennehey.com/articles/mindfulness-meditation. 

Speaking Engagements

Mary Kate McGrath and Adam Fulginiti (Philadelphia, PA) presented the webinar “Telehealth Emerging Legal and Regulatory Issues: Adopting and Implementing Innovative Solutions.” During the 90-minute presentation, Mary Kate and Adam addressed issues arising from the use of multiple technologies in the telehealth encounter, such as remote monitoring devices, digital therapeutics and AI-based algorithms. They discussed the challenges in complying with evolving federal and state telemedicine requirements, compliance with telehealth requirements for new innovative technologies, and best practices for adopting and implementing innovative telehealth solutions in line with data privacy requirements.

Steven Christman (New York, NY), Walter Klekotka (Mount Laurel, NJ), Joseph Lesinski (Pittsburgh, PA) and Amanda Podlucky (Orlando, FL) recently made a virtual presentation on “Jurisdictional Trends & The COVID-19 Impact in FL NY NJ & PA.”

Michael Packer (Fort Lauderdale, FL) presented a webinar for CLM titled “Covid 19: To Be Property Damage or Not to Be Property Damage.” The webinar focused on whether there has been “property damage” as generally defined under a standard commercial policy and whether coverage is triggered under such policies.

Scott Gemberling (Philadelphia, PA) recently co-presented with a toxicologist on the topic “Dram Shop, The Toxicology and the Law” for the National Academy of Continuing Legal Education. This online course was an overview of the toxicology of alcohol with a focus on the legal aspects of dram shop cases. Scott discussed the many scenarios of civil litigation where alcohol may be involved, shared insights, unique challenges, and modifications surrounding a dram shop jury trial that took place during COVID-19.

Patrick Reilly (Pittsburgh, PA) recently presented a webinar “Liquor Liability In Pennsylvania.” ​His discussion highlighted who needs liquor liability, who’s covered, requirements, how bars can protect themselves and the importance of surveillance.

Bradley Remick (Philadelphia, PA) recently co-presented a webinar “Investigating Fire Cause vs Cause of Loss.” This one-hour webinar reviewed the difference between responsibility for the cause of a fire and cause of a loss. The presenters discussed modeling tools in fire investigation and how the fire cause versus cause of loss difference can be applied through case study analysis.

A.C. Nash (Fort Lauderdale, FL) and Melanie Foreman (Philadelphia, PA) recently made a virtual presentation on the topic “Negligence 101 – A Pennsylvania and Florida Legal Overview.” The presentation focused on Pennsylvania and Florida law surrounding slip and fall, negligent security, auto accidents, dog bites and strict liability issues, to name a few.

Heather Byrer Carbone (Jacksonville, FL) was a featured presenter at the Workers’ Compensation Claims Professionals (WCCP) 2020 Annual Holiday Conference, which was held virtually. As part of the five-hour law and ethics update, Heather presented on “Ethical Requirements: Empathy and Ethics in Workers’ Compensation.”

Tony Natale (Philadelphia, PA) and Ross Carrozza (Scranton, PA) hosted the webinar “Navigate the Medicare Maze: A Practical Guide to Understanding Medicare Set-Asides.” They provided practical advice to simplify the Medicare Set-Aside (MSA) process. Topics included learning to identify when an MSA is necessary, what information Centers for Medicare & Medicaid Services (CMS) looks for during the process, and MSA reduction strategies to help keep costs in check.

Michele Punturi (Philadelphia, PA), Robert Fitzgerald (Mount Laurel, NJ), John Gonzales (Philadelphia, PA), Keri Morris-Johnston (Wilmington, DE) and Rachel Ramsay-Lowe (Roseland, NJ) presented a webinar “Workers’ Compensation Winter Roundup.” The discussion focused on hot topics at the intersection of workers’ compensation and employment law, including the impact of terminating an employee while on workers’ compensation, dealing with credits against workers’ compensation benefits, unemployment issues, and navigating the interplay between FMLA, ADA and workers’ compensation.

Scott Dunlop and Paul Krepps (Pittsburgh, PA) presented a webinar on “Hot Topics in 2020 Law Enforcement Liability.” Participants learned more about qualified immunity, deadly force, mass disturbance, emergency vehicle operation and body cameras.

Kimberly Berman, Ryan Burns and A.C. Nash (Fort Lauderdale, FL) presented a webinar, “56 Feds are Coming: Strategies Using the Upcoming Florida Summary Judgment Standard,” on the recent changes to the motion for summary judgement in the state of Florida.

Media Commentary

Kimberly Berman (Fort Lauderdale, FL) participated in Issues on Appeal Podcast. ​In this podcast, Board Certified Appellate Specialist Duane Daiker interviews members of Florida’s appellate community about timely and timeless issues of appellate practice and professionalism. Kimberly’s segment can be heard at https://podcasts.apple.com/us/podcast/fonts/id1455060207?i=1000504248807.

 

Defense Digest, Vol. 27, No. 2, March 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

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Thought Leadership

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

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

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.

Thought Leadership

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

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

Result

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.