.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 30, No. 4, December 2024

December 1, 2024

RECOGNITION

We're proud to announce that six attorneys from our Wilmington office have been selected "Top Lawyers" by Delaware Today Magazine. Each year, the publication invites all practicing attorneys in the Delaware Bar to participate in a peer nomination process to select Top Lawyers in numerous practice areas across the state. Congratulations to:

Sarah Brannan Cole
Bradley Goewert
Thomas Marcoz, Jr.
Lorenza Wolhar
Aaron Moore
Keri Morris-Johnston

 

PUBLISHED ARTICLES

November 18, 2024 – The Legal Intelligencer published “What Are Forbidden Sexual Relations with Clients?” by Alesia Sulock’s and Josh J.T. Byrne (both of Philadelphia, PA). You can read their article here. 

November 14, 2024 – A. Judd Woytek’s (King of Prussia, PA) article “Goodbye 'Yellow Freight' Road?” was published in The Legal Intelligencer. You can read his article here.

November 11, 2024 – Michele Punturi (Philadelphia, PA) provided commentary in the article, “Workers’ Comp Making Gains in Attracting Claims Talent,” appearing in the November issue of CLM Magazine. The article discusses Rising Medical Solution’s benchmark study concerning the workers’ compensation sector. Read here.

October 29, 2024 – “Attorney Well-Being Doesn’t Have to Be Spooky: Steps Attorneys Can Take to Support Mental, Emotional and Physical Health,” by Dana Gittleman and Alesia Sulock (both of Philadelphia, PA) was published by PLUS Blog. You can read their article here.

October 15, 2024 – The Legal Intelligencer published “How Do You Define Success? Four Women Lawyers Share Their Thoughts,” authored by Josie Scanlan (Roseland, NJ). You can read her article here.

October 10, 2024 – Gregory Graham’s (Pittsburgh, PA) article, “Don’t Reinvent the Wheel: Approaching Gen AI Usage in Litigation,” was published in The Legal Intelligencer. You can read his article here.

Fall 2024 – James Cullen (Pittsburgh, PA) authored the article, “Grossly Underestimated: Exploring Gross Negligence and Liability Waivers in Pennsylvania Premises Liability Law,” which was published in the Fall 2024 issue of Pulse, the publication of the Pennsylvania Association of Mutual Insurance Companies. You can read Jim’s article here.

September 20, 2024 – Kimberly Berman (Fort Lauderdale, FL) authored “The ‘Sunshine’ State: New Comparative Negligence Jury Instructions Following the Adoption of House Bill 837,” which appeared in the Daily Business Review. Read it here.

September 18, 2024 – Alesia Sulock’s and Josh J.T. Byrne’s (both of Philadelphia, PA) article “Socially Responsible Lawyers: Why You Need to Understand Social Media to Competently Represent Your Clients (Part 1)” was published in The Legal Intelligencer. You can read their article here.

September 13, 2024 – Heather Carbone (Jacksonville, FL) authored an article in the Jacksonville Business Journal about the potential impact of Florida’s new heat exposure law on workers’ compensation in the state. Read “Florida’s New Heat Exposure Law May Impact Workers’ Comp” here.  

September 12, 2024 – Michele Punturi (Philadelphia, PA) authored the article, “6 Key Workers’ Compensation Safety and Data Analysis Considerations,” for Risk & Insurance. Read the article here.

September 2024 – Rachel Insalaco's (Scranton, PA) article, “Let the Sunshine In: Exploring the Impact of Pennsylvania’s Sunshine Act on School Board Decision-Making,” was published in Counterpoint. You can read Rachel’s article here.

September 5, 2024 – The Legal Intelligencer published Matthew Keris’s (Scranton, PA) article “Say ‘Goodbye’ to Medical Negligence Cases as We Know Them.” You can read his article here.

August 20, 2024 – Christopher Woodward and Allison Krupp (both of Harrisburg, PA) co-authored the article, “‘Regular Use Exclusions’ Stand: Pa. Supreme Court’s Latest Ruling Post-’Gallagher’,” appearing in The Legal Intelligencer’s Insurance Law Supplement. Read here.

August 9, 2024 – The Legal Intelligencer published Michael McMaster’s (Philadelphia, PA) article “AI in Workers’ Compensation: Are We There Yet?” You can read Mike’s article here.  

August 2024 – Jon Cross (Philadelphia, PA) was published in Insurance Law Global’s The Sports Bulletin, 3rd Edition. Jon wrote on the topic “‘No-duty’ Rule Is Key to the Successful Defense of Sports Injury Lawsuits in Pennsylvania, U.S.A.” You can read his article here.

August 2024 – Alicia Caridi (Tampa, FL), Sara Mazzolla (Roseland, NJ) and Carla Candelario (Tampa, FL) were also published in Insurance Law Global’s The Sports Bulletin, 3rd Edition. Alicia, Sara and Carla discussed “Negotiating the Call: What the Americans with Disabilities Act May Demonstrate as Trends in Finding the Line Between Equal Participation and Safety.” You can read their article here.
 

SPEAKING ENGAGEMENTS

November 25, 2024 – John “Jack” Slimm (Mount Laurel, NJ) presented along with an all-star lineup of some of the most experienced and respected trial attorneys and jurists in the region at the New Jersey State Bar Association’s Regional Trial Bootcamp. Presenters walked attendees through the framework of a trial by conducting the comprehensive trial of Al Capone for the St. Valentine’s Day Massacre.

November 20, 2024 – Gregory Graham (Pittsburgh, PA) presented “Searching for AI: Case Management Tips for Existing Litigation's AI Issues” for the Pennsylvania Defense Institute.

On November 19, 2024 – Scott Dunlop (Pittsburgh, PA) presented “Local Government Immunity in Pennsylvania—A Study of the Political Subdivision Tort Claims Act,” sponsored by PCoRP (The Pennsylvania Counties Risk Pool), to brokers and producers.

November 14, 2024 – Teresa Sirianni (Pittsburgh, PA) presented on a panel, “A Primer on Pursuing and Defending Remedies and Damages,” at the annual Allegheny County Bar Association Labor and Employment Law Symposium.  Teresa, along with Colleen Ramage, Esq. of Ramage Lykos, LLC and federal Magistrate Judge Kelly Their, discussed the legal and equitable forms of relief that are available in the vast area of employment law, strategic concerns to consider when pursuing or defending your side of the case and practical wisdom that can only come from a view from the bench. 

November 14, 2024 – Sean Greenwalt (Tampa, FL) and Alexander Lloret (Orlando, FL) hosted a webinar with the Central Florida CPCU Society. “First Party Auto and Property Year in Review: 2024 Case Law Impact on Claims Investigation and Evaluation” focused on the impact of recent Florida legislative and case law results on first-party auto and fire insurance claim investigations and evaluations.

October 31, 2024 – Kimberly Berman (Fort Lauderdale, FL) was a guest speaker at the Miami-Dade Bar Association Appellate Court Committee’s CLE program “Advanced Brief Writing.” 

October 29, 2024 – Jeffrey Rapattoni (Mount Laurel, NJ) presented the webinar “Legal/Ethics Update” at the Ohio Chapter of International Association of Special Investigation Units Fall Training.

October 22, 2024 – Matthew Burdalski and Ariel Brownstein (both of Mount Laurel, NJ) presented “Cracking the Case: Investigating Chiropractic Care from Record Review to Examination Under Oath” at the New Jersey Special Investigators Association’s 33rd annual seminar. 

October 18, 2024 – Linda Wagner Farrell (Jacksonville, FL) was a panelist for two “evidence” discussions at the Florida Office of Judges of Compensation Claims’ OJCC Work Comp Academy. The program is aimed to educate young lawyers or lawyers new to the practice area.

October 18, 2024 – Christopher Conrad (Harrisburg, PA) co-presented with Kathleen Metcalfe, Esquire, managing attorney for special education at Raffaele & Associates, “From Complaint to Appeal and Beyond: Litigating a Special Education Due Process Case,” at the Pennsylvania Bar Institute’s Exceptional Children Conference 2024.

October 16, 2024 – Robert Fitzgerald (Mount Laurel, NJ) co-presented “Know When to Hold ‘em, When to Fold ‘em! Best Bets to Limit Exposure in Claims Management” at the National Workers’ Compensation and Disability Conference. 

October 9, 2024 – Dana Gittleman (Philadelphia, PA) and Estelle McGrath (Pittsburgh, PA) co-presented at the Pittsburgh Insurance Club’s annual Pittsburgh I-Day. Dana and Estelle presented “Risk Management for Insurance Agents and Brokers: Best Practices to Avoid Liability.” 

October 8, 2024 – Matthew Keris (Scranton, PA) was a featured speaker at the 2024 American Society for Healthcare Risk Management Annual Conference in San Diego. Matt served as a panelist for “Multi-Disciplinary Evaluation of Opportunities and Risks with Artificial Intelligence (AI) in Health Care,” “Recommendations to Safely Use AI in Health Care,” and “Public Perception of ‘Big Medicine’ Requires New Jury Considerations.”

October 4, 2024 – Linda Farrell and Heather Carbone (both of Jacksonville, FL) made presentations at the Northeast Florida International Association of Rehabilitation Professionals 2024 Fall Forum. Linda’s presented “Medical-Marijuana-Workers’ Compensation,” and Heather was part of a panel that discussed “Legal Updates/Changes Impacting Florida.”

October 3, 2024 – Jeffrey Rapattoni (Mount Laurel, NJ) delivered two presentations at the National Insurance Crime Bureau’s Medical & Work Comp Fraud Conference in Chicago: “Ethics and the Investigator” and “Measuring an SIU Program’s Success In an Ever-Changing Environment.” 

September 26, 2024 – Dana Gittleman and Alesia Sulock (both of Philadelphia, PA) participated in the panel discussion, “Attorney Well-Being as a Matter of Professional Competence,” at the Professional Liability Defense Federation Annual Meeting. 

September 26, 2024 – Christopher Conrad (Harrisburg, PA) co-presented “UNcivil Discourse: The 1st Amendment and Regulating Speech at Public School Board Meetings” at the Professional Liability Defense Federation annual meeting. 

On September 20, 2024 – Josh J.T. Byrne (Philadelphia, PA) participated in a panel discussion, “Emergency Planning for Attorneys,” at the annual Philadelphia Bar Association Bench-Bar Conference.

September 19, 2024 – Lindsay McCormick (Tampa, FL) was a speaker at the annual Claims and Litigation Management Alliance Construction Conference. Lindsay co-presented “Ethics Escape Room 2.0: Construction Defect Style.” 

September 19, 2024 – Darren Newberry (Pittsburgh, PA) joined a panel of insurance professionals to present the webinar, “Trends in Oil and Gas Pipeline, Wellsite and Energy Production Injury Litigation,” produced by AM Best Information Services. 

September 12, 2024 – Anthony Natale (King of Prussia, PA) co-presented “Average Weekly Wage” at the Pennsylvania Bar Association’s Workers’ Compensation Fall Section Meeting in Hershey, PA.

September 10, 2024 – Jon Cross (Philadelphia, PA) co-presented “Audit Your Park to Lower Your Premiums” at the International Adventure & Trampoline Park Association annual conference.

September 10, 2024 – Matthew Flanagan (New York, NY and Melville, NY) was one of the guest speakers at the New York State Bar Association’s statewide “Risk Management for Lawyers” webinar. The issues he addressed included the joint and several liability of attorneys for malpractice under New York law; intra-firm relationships of attorneys; the supervisory obligations of lawyers under the Rules of Professional Conduct; and file retention requirements for attorneys under New York law. 

September 5, 2024 – James Cole (Philadelphia, PA) and Christopher Block (Roseland, NJ) once again served as faculty at the Claims and Litigation Management Alliance annual Claims College. Jim served as faculty for the School of Property Claims, and Chris served as faculty for the School of Casualty Claims. In their respective curriculums, they shared strategies and tools that claims professionals can apply to help them better manage their case files.

August 26, 2024 – Jeffrey Rapattoni (Mount Laurel, NJ) participated in three seminars at the 2024 International Association of Special Investigation Unites Conference. He presented “SIU Ethics,” “Building a Better Major Case: From Investigation to Suit,” and “Legal Updates.”

August 16, 2024 – Megan Nelson (Orlando, FL), who is also a registered nurse, presented “Tort Reform: Where Do We Go from Here?” at the Florida Society for Healthcare Risk Management and Patient Safety 44th Annual Meeting and Education Conference. 

August 5, 2024 – Josh J.T. Byrne (Philadelphia, PA) was a panelist for the Philadelphia Bar Association Family Law Section webinar “Suicide Prevention and the 302 Process: Training for Family Law Practitioners.” 

August 1, 2024 – Michele Punturi (Philadelphia, PA) was a co-presenter in “The Dream Team Approach to WC Case Management,” which was part of Claims and Litigation Management Alliance Workers’ Comp Week, a five-part series focusing on the latest trends and hot topics in workers’ compensation. 

August 1, 2024 – A.C. Nash (Fort Lauderdale, FL) presented “DE&I – Your Ally in the War for Talent” at the 2024 Florida Risk Management Society Educational Conference. This session focused on inclusivity, why it is important, and how it can be a key differentiator in attracting and retaining talent within an organization.

August 1, 2024 – Scott Gemberling (Philadelphia, PA) co-presented the webinar “Dram Shop, The Toxicology and the Law” for the National Academy of Continuing Legal Education. 

July 31, 2024 – Anthony Williott (Pittsburgh, PA) presented “Nursing Homes vs. Medical Malpractice Litigation” at the National Business Institute Nursing Home Failure of Care Litigation 2024 webinar. 

July 30, 2024 – Mohamed Bakry (Philadelphia, PA) co-presented “DEI Policies in the Crosshairs: A Discussion of Students for Fair Admissions v. Harvard and Its Impact on DEI Initiatives in the Private Sector” at the Federation of Defense & Corporate Counsel annual meeting in Toronto. 

July 22, 2024 – Harold Moroknek (Westchester, NY), with participation from Scott Taffet (Westchester, NY), Peggy Smith Bush and Thomas Brown (both in Orlando, FL), presented “Mock Trial, Trial Run, Tabletop Role Playing – GUILTY or NOT?” at the 2024 Annual Summer Meeting for the Bus Industry Safety Council. 

 

Defense Digest, Vol. 30, No. 4, December 2024, 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. © 2024 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

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

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

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

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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation 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

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.

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.