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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 27, No. 1, January 2021

January 29, 2021

RECOGNITION

J. Bruce McKissock (Philadelphia, PA) was recognized at the Philadelphia Bar Association’s Summer Quarterly Meeting for his 50 years of membership in the PBA. ​Bruce and the other “50-Year Club” members were honored during the virtual event.

Recent Drexel University Thomas R. Kline School of Law graduate, Bridget Mead (Philadelphia, PA), received the Eve Biskind Klothen Law Student Pro Bono Distinction Award from the Philadelphia Bar Association. ​The award is given for outstanding pro bono work during a student’s time in law school. Bridget was selected for her commitment to helping the vulnerable in our community, including her work with the Homeless Advocacy Project where, over the last two years, she assisted both the Veterans and Disability Benefits Departments in providing legal services to help combat homelessness. Bridget looks forward to joining her Marshall Dennehey colleagues in providing pro bono legal services to the Christian Legal Clinics of Philadelphia when she begins her practice with the firm.

 

APPOINTMENTS

Nicole Ehrhart (Harrisburg, PA) was recently elected to serve on the Board of Directors for the Professional Liability Defense Federation.

John Hare (Philadelphia, PA) has been appointed by the Pennsylvania Supreme Court to a seven-member commission that will develop an event to celebrate the Court’s upcoming 300th anniversary.

 

SPEAKING ENGAGEMENTS

Michael Bradford (Tampa, FL) presented at the annual conference of the American Board of Vocational Experts on best practices for testifying experts in litigation.

John Hare (Philadelphia, PA) spoke at a seminar on the Pennsylvania Constitution entitled, Judicial Engagement and the Pennsylvania Constitution. ​The seminar was presented by the Institute for Justice, a libertarian think tank focusing on civil liberties and public interest law.

Mary Kate McGrath and Adam Fulginiti (Philadelphia, PA) were presenters at the virtual Pennsylvania Association for Healthcare Risk Management 2020 Annual Fall Conference. ​Their presentation, “Telehealth Update Information and Best Practices to Protect Patients and Clinicians,” included discussion of the expansion of telehealth in response to COVID-19; medical licensure general requirements/guidance and COVID-19-related waivers; federal and state waivers; practice expansions during COVID-19; litigation and liability issues including immunity, best practices, documentation, venue and statutes, verdicts/outcomes, and insurance; and telehealth and patient privacy.

Jeremy Zacharias (Mount Laurel, NJ) participated in a Professionalism Panel hosted by the Rutgers School of Law in Camden, New Jersey. Jeremy has been a repeat panelist for the past three years at Rutgers School of Law for the first-year law students. This seminar focused on the Rules of Professional Conduct and the applicability of the RPC’s in private practice. Jeremy was accompanied on this panel by Judge Joel Rosen and various practitioners within New Jersey.

Several attorneys returned as faculty for the 2020 Virtual CLM Claims College. ​Andrew Davitt (Philadelphia, PA) served as faculty for the School of Professional Lines. Michael Packer (Fort Lauderdale, FL), Jennie Philip and James Cole (Philadelphia, PA) were instructors for the School of Property Claims. Christopher Block (Roseland, NJ) served as faculty for the School of Casualty Claims. The Claims College is an educational experience designed to help educate and grow industry claims professionals. Each school within the college is comprised of three levels, and participants who successfully complete all levels in a particular school receive a CLM designation reflecting their education and commitment to the profession.

Lary Zucker (Mount Laurel, NJ) and Alicia Caridi (Tampa, FL) participated in a recorded webinar to be presented at the 2020 Virtual Trade Show and Conference presented by Roller Skating Association International. ​Lary and Alicia discussed identifying and mitigating risk management issues presented by the pandemic. The webinar was organized by The International Amusement and Leisure Defense Association, Inc. (IALDA). Both Lary and Alicia are on the IALDA Board of Directors.

Lary Zucker also recorded a webinar for the World Waterpark Association virtual 2020 educational conference. Lary’s presentation covered new developments in digital patron screening and lessons learned from operating during the pandemic summer of 2020.

 

PUBLISHED ARTICLES

The article, “Can Employers Require Employees to Get a Vaccine, Once Approved?,“ by Ronda O’Donnell (Philadelphia, PA), Michelle Michael (Roseland, NJ) and Mari Gangadean (Mount Laurel, N) was published in the October 27, 2020 edition of The Legal Intelligencer, Employment Law Supplement.

Karen Grethlein’s (Philadelphia, PA) article, “OSHA Guidance for Keeping Construction Workers Safe During the Pandemic,“ was recently published in The Legal Intelligencer Construction Law Supplement.

Brandon Jordan’s (Philadelphia, PA) article, “#BlackLivesMatter & #SayHerName,“ was published in Spring 2020 edition of Houston’s Legacy, the Pennsylvania Bar Association Minority Committee newsletter.

Matthew Keris and Robert Aldrich (Scranton, PA) authored the article, “A Civil Jury Trial During the Pandemic: Observations From Those Who Know,“ that appeared in The Legal Intelligencer. Matthew’s article, “Artificial Intelligence in Medicine Creates Real Risk Management and Litigation Issues,“ was published in the September 17, 2020 issue of Journal of Healthcare Risk Management.

Michele Punturi (Philadelphia, PA) authored the article, “Reflections on a Pandemic,“ for the Philadelphia Bar Reporter and the article, “Keep Your Eyes on the Road – Distracted Driving and Workers’ Compensation Claims,“ for The Legal Intelligencer.

Daily Business Review published Irene Thaler’s (Fort Lauderdale, FL) article, “Recent 11th Circuit Case May Impact COVID-19 Litigation,“ in its September 21, 2020 edition.

Lara Bream’s (Harrisburg, PA) article, “Does Our New Normal Include Courts and Judges Requiring Face Masks in Courtrooms?,“ was published in PAMIC Pulse’s Fall 2020 edition.

“Conflicting Opinions on Personal Injury Jurisdiction Over Foreign Corporations Linger,” by Melanie Foreman (Philadelphia, PA) was published in the November 3, 2020 edition of The Legal Intelligencer.

“‘Pin-Pon’ Case Highlights Attacking a Civil Remedy Notice in Bad Faith Litigation,” by Markenson Pierre (Fort Lauderdale, FL), was published in November 17, 2020, edition of Daily Business Review.

Courtney Schulnick’s (Philadelphia, PA) article, “Let Go and Free Yourself,“ appeared in the September 2020 issue of Philadelphia Bar Reporter.

 

MEDIA COMMENTARY

Chanel Mosley (Orlando, FL) was extensively quoted in the Healthcare Risk Management magazine article, “Expert Tips for Handling Malpractice Claims.” ​Click here to read.

On September 21, 2020, Jeremy Zacharias (Mount Laurel, NJ) was featured in an interview with Professional Liability Underwriting Society on the PLUS Blog. In this interview, Jeremy discussed his experience with the PLUS Leadership and Mentoring Program and its impact on his career within the legal industry. Jeremy’s interview can be found here.

 

Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

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

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

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

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

$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. 

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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

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

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.