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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

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.

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

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage 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.

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.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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.