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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 30, No. 3, September 2024

September 1, 2024

RECOGNITION

Robert Aldrich (Scranton, PA) was recently elected to a five-year term to the Executive Board of the Pennsylvania Defense Institute. Rob has been a board member of PDI for the past eight years. With his elevation to the Executive Board, he will begin his term as PDI’s secretary and will ultimately become PDI’s president, following in the footsteps of many other Marshall Dennehey past presidents, including most recently Stuart Sostmann, Jason Banonis and Matthew Keris.

Kimberly Kanoff Berman (Fort Lauderdale, FL) was appointed treasurer of the Florida Supreme Court Historical Society at the 42nd Annual Board of Trustees meeting of the Florida Bar. 

Melanie Foreman (Philadelphia, PA) has been appointed as a Hearing Committee Member for the Disciplinary Board of the Supreme Court of Pennsylvania. She will serve a three-year term that began on July 1, 2024, to run through June 30, 2027. Hearing Committee Members perform essential roles in Pennsylvania’s disciplinary system, chief among them to review Disciplinary Counsel’s recommended dispositions and to conduct hearings into formal charges of attorney misconduct and petitions for reinstatement. These efforts are critical to guiding the Board and the Supreme Court in their determinations. 
 
Christopher Reeser (Harrisburg, PA) appeared on Pennsylvania Cable Network (PCN) as a commentator who introduced cases that were argued before the Pennsylvania Supreme Court. Chris and a local plaintiff’s attorney alternated in describing the facts of a case, the procedural history, and the issues to be decided by the Court before oral argument of the case was televised on PCN.

Congratulations to Seth Schwartz (Philadelphia, PA), co-chair of our Construction Injury Litigation Practice Group, on being named a 2024 Client Service All-Star by The BTI Consulting Group. Seth is one of only 296 attorneys selected nationwide who were identified by corporate counsel for superior client service. Clients say, “Everything Seth does is very client service oriented. He makes us feel like his only client.” Learn more about Seth’s practice and approach to client service: https://lnkd.in/e-dSSArK
 

PUBLISHED ARTICLES

The Legal Intelligencer published “DOL’s Retirement Security Rule Imposes New Fiduciary Standards on Financial Services, Insurance Industries,” authored by Samuel Cohen and Ryan Friel (both of Philadelphia, PA). You can read their article here.

PLUS Blog published Dana Gittleman’s (Philadelphia, PA) article “Insurance Agents and Brokers Get No Summer Vacation from Risk Management.” You can read her article here. 

PLUS Blog published Dana Gittleman’s (Philadelphia, PA) and Jeremy Zacharias’ (Mount Laurel. NJ) article “Insurance Agent Skorrs Victory in New Jersey’s Appellate Division.” You can read this article here. 

Joslyn Restivo and Oner Kiziltan (both of Fort Lauderdale, FL) authored the article, “Florida High Court Clears Path for Insurance Companies to Utilize Payment Methodologies Enumerated in PIP Statute,” which appeared in the Daily Business Review. The article discusses the Florida Supreme Court’s decision in Allstate Insurance v. Revival Chiropractic regarding the “billed amount” issue—one of the most longstanding issues in Florida PIP law. You can read their article here.

InsuranceLawGlobal.com published Alesia Sulock’s (Philadelphia, PA) article “The Assessment of Professional Liability Claims in the U.S.” You can read Alesia’s article here. 

The Legal Intelligencer published “Your Well-Being Matters: Attorney Mental Health and Professional Competence” and “‘But I Could Have Gotten More!’—Damages Speculation in Legal Malpractice Cases” by Alesia Sulock and Josh J.T. Byrne (both of Philadelphia, PA). 

David Tomeo (Roseland, NJ) and Melissa Dziak (Scranton, PA) authored the article, “Navigating a New Legal Landscape: Protecting the Corporate Veil in the Med Mal Suit,” which appeared in the New Jersey Law Journal’s Medical Malpractice Supplement. The article explores the historical roots and status of the “piercing the corporate veil” doctrine in New Jersey and Pennsylvania. You can read their article here. 

 

SPEAKING ENGAGEMENTS

Mohamed Bakry (Philadelphia, PA), in his role as president of The Lawyers Club of Philadelphia, hosted a CLE, “Communications with Parties and the Court,” with Josh J.T. Byrne (Philadelphia, PA) as one of the panelists. This one-hour program was comprised of four 30-minute presentations by the panelists, followed by a discussion and Q&A from the audience. The presentations focused on how to determine whether a party is represented and specifically addressed the topic of current and former corporate employees. The discussion also included how to ethically communicate with unrepresented parties from the perspectives of an attorney and a judge.

We are proud to have two outstanding attorneys from our firm involved with DRI’s annual Diversity for Success Seminar. Mohamed Bakry (Philadelphia, PA), a member of our DE&I Committee, served as the 2024 Program Chair, and Christina Gonzales (Philadelphia PA) moderated a portion of the DRI Women of Color Roundtable discussion.

Josh J.T. Byrne (Philadelphia, PA) presented “Disciplinary and Reinstatement Cases You Should Know” at the Disciplinary Board of the Supreme Court of Pennsylvania’s training for new hearing committee members. The presentation focused on the disciplinary process from the perspective of respondent’s counsel. 

Josh J.T. Byrne and Alesia Sulock (both of Philadelphia, PA) presented for Attorney Protective on the “Ethical Use of Social Media in the Practice of Law.” The presentation attracted over 1,300 attendees.

Michele Frisbie (King of Prussia, PA) was a guest lecturer on “Avoiding Liability for Personal Trainers” at Montgomery County Community College’s Health and Fitness Professional AAS Degree and Personal Training Certificate programs.

John Gonzales (Philadelphia, PA) presented a webinar entitled “An Introduction to Fourth Amendment Police Liability Claims” for the National Academy of Continuing Legal Education. 

Sean Greenwalt (Tampa, FL), Oner Kiziltan, and Joslyn Restivo (both of Fort Lauderdale, FL) presented at the Florida Insurance Fraud Education Committee’s annual conference. Their presentation, “No Tipping, Please: Responding to Gratuitous Payment, Coverage, and Policy Disputes,” tackled all the new and old challenges to PIP exhaustion and policy limits.

Matthew Keris (Scranton, PA) joined hundreds of the country’s leading health care executives, clinicians, and other professionals at the 2024 American Hospital Association Leadership Summit. Matt co-presented the session “Multi-Disciplinary Evaluation of Liability Risks of AI in Health Care: The Board Focus,” with Susan Boisvert, Senior Patient Safety Risk Manager at The Doctors Company. The session focused on how professionals can prepare for upcoming medicolegal challenges in light of anticipated increases in AI legal spend.

Julia Klubenspies (Roseland, NJ) was a featured speaker at the new resident orientation for the first class of resident physicians at The Valley Hospital in Paramus, New Jersey. Julia spoke on “Risk Management Topics and Strategies for the Resident Physician.”

Leaders of our Trucking & Transportation Litigation Practice Group revealed the major employment law issues impacting the industry with AM Best Information Services. Leonard Leicht (Roseland, NJ), Peggy Bush (Orlando, FL), and Harold Moroknek (Westchester, NY) shared lessons learned from actual cases they have handled. Listen now! https://lnkd.in/eAG5cfxN

Harold Moroknek (Westchester, NY) was part of a group of presenters at this year’s Auto Haulers Association Spring Conference.
 
Michele Punturi (Philadelphia, PA) was joined by Michelle Leighton, Vice President - Senior Claim Consultant at Connor Strong, and Robin S. Roeder, Senior Vice President Risk Management at Sedgwick, in presenting CLM’s webinar “The Dream Team Approach to WC Case Management.” 

Jeffrey Rapattoni (Mount Laurel, NJ) spoke at the New England Chapter IASIU two-day training seminar, where he presented “Ethics and the Investigator.”

Tune in to the latest Professional Liability Underwriting Society podcast, where David Shannon and Ryan Friel (both in Philadelphia, PA) discuss the new SEC rule for cybersecurity and its impact on compliance frameworks and reporting obligations. https://lnkd.in/esBGPCDA 

Jack Slimm (Mount Laurel, NJ) joined a panel to present the New Jersey State Bar Association’s CLE program, “Legal Malpractice Update.” The seminar touched on ethical issues in legal malpractice, including claims and proofs involving the New Jersey Lawyers Fund for Client Protection, problems arising from accepting electronic payments, fee splitting and referral fees, emotional distress damages, the impact of artificial intelligence on legal malpractice, and appellate malpractice.

Robin Snyder (Philadelphia, PA) joined a panel at the Pennsylvania Chamber of Business and Industry’s Healthcare Summit to present “Navigating Medical Malpractice: Insights Into Pennsylvania’s Legal Landscape.”

Sunny Sparano (Roseland, NJ) joined a panel of fellow Insurance Law Global members to present “Navigating Liability for Design: Key Considerations for Contractors, Professionals, and Insurers.” In this webinar, the panel of construction law experts contrasted the duties imposed on design and construction practitioners in the USA, France, and Australia respectively.

Alesia Sulock (Philadelphia, PA) joined an international panel of attorneys and members of Insurance Law Global to present the webinar “The Assessment of Damages in Professional Liability Claims.” This panel of experts compared and contrasted how damages are calculated in Argentina, Australia, Italy, Spain, the UK, and the USA. Alesia also presented with the Pennsylvania Bar Association’s Professional Liability Committee, “Avoiding Legal Malpractice,” to the Monroe County Bar Association.

Suzanne Utke (Philadelphia, PA) lectured on the topic of “Medical Legal Issues” for the physicians assistant programs of Thomas Jefferson University.

Timothy Ventura (Philadelphia, PA) and Christopher Block (Roseland, NJ) presented “The Seven-Ten Split Mock Trial: Navigating Agent Errors & Omissions,” at the Annual Professional Insurance Agents (PIA) Conference. The mock trial was designed to mimic a trial based on actual errors that arose under E&O liability for insurance agents. During the session, attendees were also provided with an overview of E&O liability, including an examination of how the agent could have avoided a lawsuit, and common causes of E&O claims against insurance agents.

Mark Wellman (New York, NY) hosted “AI - The Future of Litigation,” at the CLM Alliance (Claims and Litigation Management) New York City local chapter event.

Jeremy Zacharias (Mount Laurel, NJ) was a panelist for a New Jersey Institute CLE seminar entitled, “Solving Problems in Commercial Real Estate Transactions,” where he discussed 21st Century ethical considerations in commercial real estate transactions. The seminar, geared towards individuals handling commercial real estate matters, also discussed commercial real estate transactions in New Jersey and how one can craft and negotiate contracts and leases that protect your clients against excessive risk. 

Lary Zucker (Mount Laurel, NJ) joined a panel to present a webinar, “Managing Bowling & Pickelball Claims,” for the Sports and Entertainment Risk Management Alliance. This webinar provided an in-depth review of the most common risks in bowling and provided guidance on how to identify, manage, mitigate, investigate, and defend these cases. It also covered risks associated with America’s fastest-growing sport, pickleball. The panel discussed the dos and don’ts of liability and exposure. 

 

Defense Digest, Vol. 30, No. 3, September 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

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.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

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. 

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.

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.

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.

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.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

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.