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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

RECOGNITION

Heather Byrer Carbone (Jacksonville, FL) was honored with the John J. Schickel Professionalism and Excellence Award by the E. Robert Williams Inn of Court. 

Peggy Smith Bush (Orlando, FL) and Heather Byrer Carbone (Jacksonville, FL) have been recognized as 2024 Florida Trend “Legal Elite NOTABLE - Women Leaders in Law.” Both were honored for their impact in the field of law, mentorship, and leadership in professional organizations and civic/community service initiatives. 

Congratulations to Jeremy J. Zacharias, RPLU, (Mount Laurel, NJ office) on his election to the Board of Trustees of the Professional Liability Underwriting Society. Jeremy has been an active member of PLUS since 2016. 
 

PUBLISHED ARTICLES

February 18, 2025 – The New Jersey Law Journal published David Levine’s (Roseland, NJ) article “Navigating Preexisting Conditions in New Jersey Workers’ Compensation Claims.” Read his article here.  

January 28, 2025 – Jillian Dinehart (Cleveland, OH) authored, “‘I Was Just Following Orders’ – Ohio’s Sixth Circuit Court of Appeals Applies Fourth Amendment’s Good-Faith Exception to First Amendment Retaliation Claims,” published in PLUS Blog. The article discusses Hall v. Navarre, where the Sixth Circuit found that a police officer who ticketed a protestor for disorderly conduct, despite not personally witnessing the conduct, had qualified immunity for the plaintiff’s First Amendment retaliation claim. Read Jillian’s article here.

November 27, 2024 – The Insurance Journal published Sean Greenwalt’s (Tampa, FL) article “Florida Appeals Court Nods Enforceability of Forum Selection Clauses in PIP Cases.” You can read Sean’s article here.

November 27, 2024 – The New Jersey Law Journal published “Opportunity Knocks: Modern Trends with Business Email Compromise in a Changing Cyber World” by David Shannon (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ). You can read their article here.
 

SPEAKING ENGAGEMENTS

February 24, 2025 – Mohamed Bakry (Philadelphia, PA) co-moderated “Behind the Bench: A Candid Look at What Federal Judges Expect from Lawyers” at the Federation of Defense & Corporate Counsel’s (FDCC) Annual Winter Meeting. 

February 23–27, 2025 – John Delany, III (Philadelphia, PA), chair of our Catastrophic Claims Practice Group, moderated a compelling session at the Federation of Defense & Corporate Counsel Winter Meeting. Jack joined author Colum McCann, American Book Award-winning author of Let the Great World Spin, to discuss his book, American Mother. The session’s theme focused on how a more empathetic approach to practicing law cannot only increase understanding and good will between plaintiffs and defendants but also lower the likelihood of a nuclear verdict and bring about resolutions that all parties can feel better about.

February 19, 2025 – Jeffrey Rapattoni (Mount Laurel, NJ) co-presented the webinar “Bad Faith Legal Update” to members of International Association of Special Investigation Units (IASIU). Topics included current legislation affecting the SIU and anti-fraud professionals, case-specific legal decisions affecting the SIU community, as well as trending decisions and pending legislation.

February 12, 2025 – Michele Punturi (Philadelphia, PA) joined a panel at Claims Litigation Management’s (CLM) 2025 Focus Conference: Work Comp, Casualty and Risk Management. In “Workers’ Comp Risk Management Best Practices: Insights from High-Risk Industries,” the panel addressed the ongoing challenges of workers’ compensation in high-risk industries. 

February 11, 2025 – Rachel Insalaco (Scranton, PA) co-presented “Special Education Law: The Ultimate Guide” at a National Business Institute CLE. Rachel’s presentation addressed bullying and/or harassment involving students with special needs.

February 10, 2025 – Sara Mazzolla (Roseland, NJ) joined a panel of International Amusement & Leisure Defense Association professionals to present “Risk Management and Understanding the Claims Process” at the NAFDMA Agritourism Association Convention & Expo.

January 30, 2025 – Jacqueline Reynolds (King of Prussia, PA) co-presented “The Lawyer’s Guide to Mitigating Burnout: Caring for Ourselves and Our Clients in Challenging Times 2025” for the Pennsylvania Bar Institute.

January 28, 2025 – Samuel Cohen (Philadelphia, PA) participated in the session “Best Interest Reviews: Decoding FINRA 2330” at Level Up at OneVoice Annual Kickoff 2025.

January 16, 2025 – Josh J.T. Byrne (Philadelphia, PA) was a featured speaker in the Philadelphia Bar Association’s webcast “Recent Ethics Developments 2024.” Hosted by the Professional Guidance and Responsibility Committee, the program highlighted key cases, ethics opinions, disciplinary decisions, and changes in the rules of professional conduct from 2024. 

January 16, 2025 – Jon Cross (Philadelphia, PA) and Thomas Brown (Orlando, FL) were speakers during the three-hour presentation at the “Legal Roundtable” held at the Amusement Industry Manufacturers and Suppliers (AIMS) Conference.

January 16, 2025 – Jeffrey Rapattoni (Mount Laurel, NJ) discussed “Ethical Considerations for the SIU” at the National Insurance Crime Bureau’s (NICB) Mid-Atlantic Major Medical Fraud Task Force Training Event. Designed for NICB agents covering Pennsylvania, New Jersey and Delaware, the program provided information and strategies related to the prevention, detection, and prosecution of insurance fraud and crime. 

January 15, 2025 – A.C. Nash, Ryan Burns and Edwyna Estime (all of Fort Lauderdale, FL) headlined at the RIMS - Broward County chapter meeting. They co-presented “New Year, New Rules – Florida’s New Civil Procedure Rules,” which examined the Florida Supreme Court’s changes to the Florida Rules of Civil Procedure.

January 10, 2025 – Josh J.T. Byrne (Philadelphia, PA) co-presented “Dealing with Difficult Opposing Counsel 2025” for the Pennsylvania Bar Institute. 

December 18, 2024 – “Restoration After the Data Breach!” In the final episode of his 2024 PLUS podcast series, David Shannon (Philadelphia, PA) spoke with disaster restoration expert Heath Renfrow about managing sophisticated cyber attacks. Listen to the PLUS podcast here or read the transcript here.

December 18, 2024 – Josh J.T. Byrne (Philadelphia, PA) presented “Legal Malpractice Avoidance” at a Dauphin County Bar Association CLE webinar.

December 17, 2024 – Sara Mazzolla (Mount Laurel, NJ) participated in the Sports and Entertainment Risk Management Alliance (SERMA®)’s webinar “Roller Skating and Ice Skating Risk Management.”

December 9, 2024 – Matthew Keris (Scranton, PA) was a panelist for a webinar hosted by the Pennsylvania Coalition for Civil Justice Reform. In “A-Z on AI! Artificial Intelligence Litigation Trends and Ethical Issues,” Matt and his co-panelists led a discussion on AI from a medical liability perspective, including how the defense can weaponize AI and the ethical issues of AI in legal practice.

December 6, 2024 – Jack Delany (Philadelphia, PA) presented “Empathy in High-Stakes Trials” at the Litigation Counsel of America’s Renaissance Symposium XVIII. The symposium offered a full day of trial tactics and strategies, led by some of the country’s leading trial lawyers with years of experience, successes, and verdicts.

November 26, 2024 – Kimberly Kanoff Berman (Fort Lauderdale, FL) of our Florida Appellate Law practice presented at the National Business Institute course, “Obtaining Evidence from Electronic Devices in Florida.” The program focused on how to gather evidence from electronic devices and get it authenticated when hiring an expert is not feasible.

November 21, 2024 – Sara Mazzolla (Mount Laurel, NJ) and her International Amusement & Leisure Defense Association (IALDA) colleagues presented a Legal Roundtable at the International Association of Amusement Parks & Attractions (IAAPA) Expo 2024. The panel covered topics including including a three-part presentation on demystifying the science of acceleration forces; combatting reptile theory; using AI for demonstrative exhibits and jury consultants; updates on ASTM proposals and waivers; and case law in various jurisdictions.

November 20, 2024 – Anthony Natale (King of Prussia, PA) was one of the key speakers at the annual Delaware Valley Workers’ Compensation Trust’s (DVWCT) Claim Prevention seminar. This live event was attended by risk control employees, managers, police chiefs, command staff, department heads, and local government leadership in the townships and municipalities that are administered by the DVWCT. Tony spoke on the importance of presenting unified and global defenses between workers’ compensation, unemployment compensation, internal grievance arbitration, and employment law where applicable in cases involving workplace injuries. Tony was able to give examples of this unified directive, citing a current case in litigation involving all of these areas of law and the blue print used to provide a global defense. 


 

Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey 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. © 2025 Marshall Dennehey. 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

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

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

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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. 

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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