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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 29, No. 4, December 2023

December 1, 2023

RECOGNITION

Two Marshall Dennehey Practice Group Leaders Named “Best of the Bar” by the Philadelphia Business Journal. 
We are pleased to announce that John J. “Jack” Delany, III, Chair of the firm’s Catastrophic Claims Litigation Practice Group, and John J. Hare, Chair of the firm’s Appellate Advocacy and Post-Trial Practice Group, have been named 2023 Best of the Bar honorees in the area of Business Litigation by the Philadelphia Business Journal. The annual program recognizes the region’s most impactful lawyers based on their recent achievements, including the legal significance of their successes, the scale of their results, and the business impacts of their accomplishments. 

Marshall Dennehey Named a 2024 “Best Law Firm” In Multiple Practice Areas by Best Lawyers®
We have been named a “2024 Best Law Firm” in multiple practice areas, both nationally and across numerous regions of the country, by Best Lawyers®. Nationally, the firm ranked in the practice areas of Admiralty & Maritime Law; Commercial Litigation; Insurance Law; and Mass Tort Litigation/Class Actions - Defendants. Read more here. 

Marshall Dennehey Announces 2023 New York Metro Super Lawyers and Rising Stars
Seven attorneys from our New York City, Westchester County, and Long Island offices have been selected to the 2023 edition of New York Metro Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Read more here.

Marshall Dennehey Ranks on Law360’s “Ceiling Smashers” List
We ranked #3 on the Law360 Pulse Ceiling Smashers List for law firms with 251-600 attorneys. Firms are ranked based on the number of women attorneys in equity partnerships. According to the report, “The firms that made it onto Law360 Pulse’s Ceiling Smashers list are demonstrating that strides towards gender parity at the upper ranks are possible.” 
 

APPOINTMENTS

John Hare (Philadelphia, PA) has been appointed by the Pennsylvania Supreme Court as the co-chair of the Court’s new Historical Commission. The Commission will develop programming and publications to foster civics education about the importance of the rule of law and judicial independence. 

 

OTHER NEWS

Janice Merrill (Orlando, FL) was quoted in the article, “How to Identify and Defend Against Malicious Lawsuits,” appearing in the October issue of Healthcare Risk Management magazine. You can read the article here.

 

PUBLISHED ARTICLES

On September 15, 2023, The Legal Intelligencer published “You Diligently Protect Your Clients; What About You? Part 2 (The Middle and the End),” written by Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA). You can read their article here.

On November 17, 2023, The Legal Intelligencer also published “Probable Cause as a Matter of Law in Dragonetti Cases,” by Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA). You can read their article here. 

On November 10, 2023, the New York Law Journal published “Trend Watch: Out-of-Staters Finding the Basis for Personal Jurisdiction,” by Adam Calvert and Brian Ramkissoon (New York, NY). You can their article here.

Dana Gittleman’s (Philadelphia, PA) article “Trying the PL Case: Lessons Learned in the Courtroom,” was published on September 21, 2023, on the PLUS Blog. You can read her article here.

Brad Haas’ (Pittsburgh, PA) article “Unveiling the Power of Usage-Based Insurance in Personal Injury Discovery,” was published in the November 2nd Personal Injury Supplement of The Legal Intelligencer. You can read this article here.

Patricia Monahan (Pittsburgh, PA) authored the article, “Pa. Supreme Court Evaluates Constitutional Parameters of a Jury’s Punitive Damage Award,” appearing in the October 3, 2023, issue of Pennsylvania Law Weekly. Her article discusses the court’s decision in Bert v. Turk, 298 A.3d 44 (Pa. 2023) that addressed whether the appropriate ratio of punitive to compensatory damages in a case with multiple joint tortfeasor defendants should be calculated on a per judgment basis or a per defendant basis, and how the decision applies to statutory bad faith cases. Click here to read.

Michele Punturi (Philadelphia, PA) co-authored, with clients, the article, “Reflecting the Talent You Want to Recruit: Building and Achieving a Diverse Team and a Better Business,” appearing in the September 2023 issue of CLM Magazine. The article discusses DEI&B (diversity, equity, inclusion and belonging) and its role in building an inclusive culture within an organization. You can read her article here.  

Estelle McGrath (Pittsburgh, PA) authored the article, “EEOC Mediation: Five Things to Consider Before Participating,” appearing in The Legal Intelligencer’s Employment Law Supplement. The article points to five things to discuss with your client ahead of time so they can make an informed decision about whether or not to participate in an EEOC mediation. You can read the article here.

Tony Natale (King of Prussia, PA) authored the article, “Beware of the Language Used in Your Settlement Agreements: Medicare is Watching,” appearing in The Legal Intelligencer’s October 10, 2023, Workers’ Compensation Supplement. The article discusses the pivotal role of settlement agreements in workers’ compensation litigation, and the importance of including the appropriate language in such agreements when the claimant is a Medicare beneficiary. You can read his article here.  

 

SPEAKING ENGAGEMENTS

Mohamed Bakry (Philadelphia, PA) joined a panel at the Federation of Defense & Corporate Counsel Corporate Counsel Symposium in Philadelphia to discuss “Lessons from the Varsity Blues Scandal.” This panel discussed why every corporate counsel must be prepared to defend the enterprise against claims of civil and potentially criminal liability arising from honest services fraud, bribery, conspiracy, and other claims, due to the actions of rogue employees. 

Josh J.T. Byrne and Alesia S. Sulock (Philadelphia, PA) were featured speakers at the Professional Liability Defense Federation (PLDF) annual meeting in Denver. They were part of a panel titled “Defending and Avoiding Disciplinary Complaints.”

Josh J.T. Byrne (Philadelphia, PA) joined a Pennsylvania Bar Institute panel to present a CLE on ethical use of social media for attorneys.

James Cole (Philadelphia, PA) presented “Risky Business: New Trends in Insurance Fraud,” at CLM’s Fraud Focus Conference in New York City.

Christopher Conrad (Harrisburg, OA) co-presented “Extended School Year – It’s Not Summer School,” at the Pennsylvania Bar Institute’s Exceptional Children Conference. The presentation addressed the scope of available Extended School Year services for special needs students, determining eligibility, and the appropriateness of services. The presentation also included a discussion of relevant and recent case law and hearing officer decisions, as well as tips for how to litigate expedited Extended School Year due process hearings.

Angela DeMary (Mount Laurel, NJ) presented “Assessing the Injury and Case,” at the National Business Institute’s New Jersey Workers’ Compensation Fundamentals webinar.

Michael Detweiler (King of Prussia, PA) participated was a webinar panelist for “Travel Advisors E&O Insurance: Lessons in Liability,” hosted by Travel Professional News. The webinar discussed what E&O insurance actually safeguards you against and why most organizations and host agencies require or strongly suggest travel advisors carry coverage. The program also walked through insurance policy language and coverage terms related to E&O insurance and the importance of protecting yourself or your agency. Real-life case studies illustrated the common allegations made against travel professionals and what you can do to help safeguard yourself against client demands and lawsuits. 

Melisa Dziak (Scranton, PA) joined a “Claims Hot Topics Roundtable” on September 21st at the Medical Professional Liability Association’s Claims and Risk Management/Patient Safety Workshop. With more than 10 years of medical malpractice defense and health care liability experience, Melissa provided critical information for claims, risk, and clinical professionals involved in managing medical professional liability claims. 

Scott Eberle (Pittsburgh, PA) presented “Avoiding Legal Malpractice,” to members of the Beaver County Bar Association. Scott also presented “Ethics Issues in Auto Law,” at the Pennsylvania Bar Institute’s Auto Law Update webinar.

Elizabeth Ferguson (Jacksonville, FL) participated in AMBest’s webinar “How Insurers Are Controlling Expert Costs in Construction Defect Claims.” In this one-hour webinar, claims professionals examined best practices for engaging expert testimony, with a special focus on how that process works in handling and litigating construction defect claims. You can watch here.

John Hare (Philadelphia, PA) was a keynote speaker at an event honoring new Pennsylvania Supreme Court Chief Justice Debra Todd, the first woman to serve in that role. All Supreme Court justices and members of Pennsylvania’s other two appellate courts were in attendance. John also presented a 90-minute CLE for the Pennsylvania Coalition for Civil Justice Reform, a consortium of insurers, corporations, and other defense-oriented groups. The title of the CLE was “The Transformation of Pennsylvania Law: 2016-2023,” and focused on the expansion of civil liability in Pennsylvania in recent years. Finally, John spoke at a symposium honoring the 125th anniversary of the Pennsylvania Superior Court. The symposium focused on different aspects of the Court’s work. John focused on civil litigation. The event was broadcast on Pennsylvania Cable Network. 

Elias Hassinger (Philadelphia, PA) presented at the Philadelphia Bar Association’s 2023 Bench-Bar & Annual Conference in Atlantic City. In the session “Proper Identification of Pain Generators in Work Injuries/Personal Injuries and Novel Treatment Options,” Eli joined a panel discussion on the proper identification of pain generators focused on identifying disc herniations and radiculopathy; discogenic pain and annular tears; vertebrogenic pain; injured joints in the spine; and using platelet rich plasma for tendon/ligament injuries. The panelists also addressed novel treatment options and how they may affect a workers’ compensation claim.

Jahlee Hatchett (Philadelphia, PA) moderated “Productivity Architects: Unlocking Potential and Redefining Success in the Hybrid Era,” at the Philadelphia Bar Association’s 2023 Bench-Bar & Annual Conference.

Ryan Hauck (Pittsburgh, PA) spoke at the Pennsylvania Bar Association’s Workers’ Compensation Fall Section Meeting in Hershey, Pennsylvania. He was a panelist on the topic of “Specific Loss/Disfigurement.”

Matthew Keris (Scranton, PA) spoke at the Forum on Obstetric Malpractice Claims in Philadelphia. Matt joined a panel to discuss “Evaluating the Use of AI in Obstetric Diagnostics: Understanding Enhanced Capability and Inherent Risks.”

Mark Kozlowski (Scranton, PA) presented “Employment Law Basics - 2023 Year in Review: What’s New, What’s Changed, and What Do I Need to Know?” to the Society for Human Resource Management (SHRM), NEPA Chapter.

A.C. Nash and Ryan Burns (Fort Lauderdale, FL) presented “Legislative Update: New Florida Tort Reform Changes Under HB 837” at the RIMS Tampa Bay Chapter meeting in St. Petersburg. 

Michele Punturi (Philadelphia, PA) and Jeffrey Rapattoni (Mount Laurel, NJ) co-presented “Getting Caught with Your Hand in the Proverbial Cookie Jar,” at this year’s ClaimsXChange in Philadelphia. In this presentation, the panel discussed the best strategies for investigating, uncovering, and deterring fraudulent acts while exploring methods to recover monies paid out to fraudulent actors. They also examined how fraud impacts the claim value and how to counteract its debilitating effects. 

Victoria Scanlon and Melissa Dziak (Scranton, PA) presented to the Physician Assistant Program at Marywood University on “Mitigating Physician Assistant Legal Liability.”

Kacey Wiedt (Harrisburg, PA) and Daniel Deitrick (Pittsburgh, PA) presented “How the Lorino and Neves Decisions Have Impacted the Defense of Workers’ Compensation Cases,” at the CCAP Defense Counsel Meeting.

Courtney Schulnick (Philadelphia, PA) was part of a panel for the Philadelphia Law Department’s annual CLE program held at the Pennsylvania Convention Center. During this two-hour CLE, Courtney was joined by Alison Lintal, Esq, visiting Assistant Professor of Law and Director of the Externship Program at Penn State University Dickinson Law School and Dena Lefkowitz, Esq., author, business, and career coach for lawyers. The panel discussed Emotional Intelligence (EI) and how it can help attorneys to handle interpersonal relations judiciously and empathetically. Courtney focused on mindfulness practices that can help us step out of reactivity and choose how to most skillfully respond, whether it’s trying a case in court, dealing with a difficult adversary, serving the needs of our clients, working together with colleagues, or caring for a loved one.

David Shannon (Philadelphia, PA) hosted the third episode of his PLUS podcast, “Managing Cybersecurity Threats in 2023.” David was joined by Brendan McGann of Arete to discuss mid-year data breach trends. From increased ransom demands and paying for data deletion, to an uptick in breaches within the professional services industry, David and Brendan analyzed what’s happened so far in 2023 – and trends they anticipate will lead us into 2024. Click here to listen. 

Jack Slimm (Mount Laurel, NJ) presented with Frank Ciuffani P.J.Chancery (ret.) at the New Jersey State Bar Association’s NJICLE 2023 Business Litigation Seminar on November 1. Their topic, “NJ Business Rule and Its Application to Lost Profits,” explored the new rule and whether a new business can ever prove lost profits damages with reasonable certainty.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) presented a webinar entitled “Strategic Approaches to Handling Lost Profit Claims Under New Jersey’s New Business Rule.” Jack and Jeremy presented on the current New Jersey law on the New Business Rule after the Supreme Court’s decision in Schwartz v. Menas, a case Jack and Jeremy have been handling on behalf of their clients, a well-known law firm in New Jersey handling real estate and land use matters. Jack and Jeremy went through certain jurisdictional approaches to the New Business Rule, as well as New Jersey’s current rule after the Supreme Court decision in Schwartz v. Menas, 279 A.3d 436 (N.J. 2022). This presentation was attended by various claims professionals and underwriters, and crosses multi-dimensional practices between professional liability and casualty.

Jeremy Zacharias (Mount Laurel, NJ) presented at the New Jersey ICLE’s “Commercial Real Estate: From Handshake to Closing Seminar.” Jeremy’s topic pertained to ethical considerations in handling commercial real estate transactions. He discussed the implications of the Rules of Professional Conduct on certain real estate transactions, including multiple representations, dealing with unrepresented parties, and practical pointers when facing a motion to disqualify when an attorney handles multiple representations in a commercial real estate deal. This presentation was well attended by members of the Bar, and and Jeremy discussed the importance of assessing the Rules of Professional Conduct in everyday practice.

 

Defense Digest, Vol. 29, No. 4, December 2023, 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. © 2023 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.

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

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.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

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.

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

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. 

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.