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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

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial