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Defense Digest

On the Pulse…Our Pittsburgh, Pennsylvania, Office

Defense Digest, Vol. 29, No. 1, March 2023

March 1, 2023

Having nearly completed 30 years of continuous operation since opening in 1993, our Pittsburgh office has grown and matured to the point of augmenting Marshall Dennehey’s regional preeminence by staking its own claim as a leading defense firm in the southwestern part of Pennsylvania. Numbering 40 strong, our attorneys have successfully litigated just about every type of civil tort claim imaginable over a practice territory stretching from Waynesburg to Clearfield and from New Castle to Bedford—and sometimes, by client request, beyond our assigned 16-county geographical range. Several of our attorneys practice regularly in the state of West Virginia and some are called upon to defend class action and MDL cases filed in several other states as well. We look early and often for opportunities to resolve cases to our clients’ satisfaction, but we never hesitate to litigate cases to judgment if that is required. Six attorneys of the Pittsburgh office have been inducted into the prestigious Academy of Trial Lawyers of Allegheny County, an invitation-only organization recognizing the 250 best trial lawyers out of the more than 10,000 lawyers in Allegheny County.

Pittsburgh’s Casualty Department handles all varieties of third-party civil actions involving personal injury or property damage, from the smallest matters to catastrophic injuries and wrongful death cases. Our casualty attorneys regularly defend premises liability, automobile liability, product liability, liquor liability, intentional torts, construction, trucking and transportation, and asbestos and toxic torts cases. This group is comprised of nine shareholders, eight associates, and one of-counsel, making it the largest practice department in our office. It is managed by Stuart Sostmann, who is also the president of the Pennsylvania Defense Institute, one of the largest civil defense organizations in Pennsylvania with almost 500 members, including defense attorneys, insurance professionals, and corporate counsel.

Our Health Care Department, supervised by Anthony Williott, consists of three shareholders, one senior counsel, and two associates. Pittsburgh’s health care team has a tradition of excellence in defending physicians, hospitals, dentists, nurses, nursing homes, chiropractors, and other health care professionals and facilities in malpractice suits. These attorneys collectively have tried more than 200 jury and binding arbitration cases to verdict, with a success rate of over 90%. In addition to defending health care professionals in malpractice litigation, our attorneys also counsel clients in matters of statutory and regulatory compliance, and they represent health care professionals in licensing matters.

While serving as the office managing attorney, I am also proud to supervise the attorneys of Pittsburgh’s Professional Liability Department. Currently numbering eight shareholders and four associates, the PL group offers deep experience in an astonishing array of challenging law types. These case types include legal malpractice; errors and omissions claims against architects, engineers, accountants, insurance or real estate agents; directors and officers claims for non-profit corporations and condominium and homeowners associations; employment practices liability; defense of counties, public school districts, and local governments, their officials and police officers in state tort claims and federal civil rights actions; and direct representation of insurance professionals and insurance carriers regarding coverage or extra-contractual liability exposure. Each one unique, these cases come in all shapes and sizes, involving pre-suit counseling and litigation before local magistrates, the county trial courts, and the United States District Courts.

Our Workers’ Compensation Department in Pittsburgh features two shareholders and an associate, all dedicated exclusively to this field of practice. They represent employers, insurers, and third party administrators in the defense of workers’ compensation claims, fee reviews, subrogation matters, risk management, and return-to-work programs. Each representation is designed to mitigate exposure on the part of our clients. Supervised by Daniel Deitrick, this department has represented a wide range of insureds and self-insureds, including hospitals, health care entities, nursing homes, school districts, vehicle manufacturers, trucking companies, food distributors, hotels, restaurants, construction companies, and grocery and retail stores, among others. Our risk management strategies are thoughtfully intended to reduce costs through involvement in the pre-litigation phase. In those claims that are litigated, however, our attorneys are actively striving to protect the interests of our clients, from the commencement of litigation through the appellate process.

All of our attorneys stand in admiration of an amazingly loyal, hard-working, and efficient staff of administrative assistants and paralegals under the supervision of our regional office manager, Rose Chulack. Many of our staff members have been with us for decades, while others more youthful bring energy and innovation to the team. All of these ladies and gentlemen distinguish themselves every day by their care for the quality of our work product and for the welfare and convenience of our clients. Without them, we could not hope to deliver the brand of client service in which we always aspire to excel.     

As I write this from our offices on the seventh floor of the beautiful and historic Union Trust Building, looking across Grant Street at the Allegheny County Courthouse constructed in the 1880s, it is mid-January, and we are enduring the depths of Pittsburgh’s gloom season. We have had about three days of sunshine since Thanksgiving. But we take heart! For at least eight months out of the year, this is a truly beautiful place to be, and we love that our community is ever interesting, safe, and welcoming. Those of us working here at Marshall Dennehey are either natives of the area or transplanted “lifers,” who would not prefer to work anywhere else. Even in the age of Zoom mediations and remote court appearances, we hope you might find a reason to visit our city sometime soon. And if you do, please call on us for a tour of the office and an introduction to some of the charms of Pittsburgh.

 

Defense Digest, Vol. 29, No. 1, March 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

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.

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 Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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

$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.

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. 

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

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.