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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

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

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

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.