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Defense Digest

On the Pulse…Recent Appellate Victories*

Defense Digest, Vol. 30, No. 2, June 2024

June 1, 2024

Walter Kawalec (Mount Laurel, NJ) succeeded in obtaining a reversal by a panel of the New Jersey Superior Court, Appellate Division, on an interlocutory appeal. We sought review of an order granting discovery sanctions and denying reconsideration of that sanction’s order. The plaintiff claimed to have been injured in a hole in the parking lot at his work. His employer leased the location under a triple-net lease, which placed on the employer full responsibility for property maintenance and repair. The plaintiff sought in discovery to obtain tax return documents from the owner, among additional documents, which he hoped in vain would demonstrate some retained duty by the owner. When the plaintiff was dissatisfied with the answers to the discovery requests, he sought sanctions, which the trial judge granted. We successfully argued that this was an abuse of discretion (as was the denial of reconsideration) because the tax documents had to be first reviewed in camera; because we had fully answered the plaintiff’s discovery requests, although he was dissatisfied with the answers; and because the production of other documents merely needed a confidentiality agreement. The Appellate Division reversed the sanction order and remanded for further proceedings. Moore v. RE Associates, LLC, 2024 WL 1161734 (App. Div. Mar. 19, 2024)

Walter Kawalec (Mount Laurel, NJ) obtained an affirmance by a panel of the New Jersey Superior Court, Appellate Division, of the dismissal of a complaint, seeking insurance coverage for damage to an in-ground swimming pool after a storm. The plaintiffs had sought coverage for damage to their roof and the partial collapse of the pool. The carrier’s engineering inspection disclosed that the cause of the pool collapse was excessive hydrostatic pressure from the rainfall during the storm. The claim for the pool was therefore denied because the policy did not provide coverage for damage caused by ground water. The carrier paid on the claim for the roof damage in October 2020. Because the policy contained a provision requiring that suit must be brought within 12 months of the loss (although tolled during the coverage investigation), the carrier sought to dismiss the plaintiffs’ subsequent compliant, which alleged breach of contract and bad faith for the denial of the pool claim because it was brought more than 12 months after the carrier disclaimed coverage for the pool damage. The Appellate Division affirmed the dismissal of the claim as time barred, rejecting the plaintiff’s arguments for extending the time to file the complaint. Drevs v. Metro. Pro. & Cas. Ins. Co., 2024 WL 1461740 (App. Div. Apr. 4, 2024).

Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining a per curiam affirmance in the Fifth District Court of Appeal of an order declaring the children dependent due to their father’s drug use and overdose in front of his children. Kimberly served as pro bono counsel for the statewide Guardian ad Litem program and represented the interests of the child as part of the Defending Best Interests Project. S.M. v. Dep’t of Children & Families, 5D23-3142 (Fla. 5th DCA Feb. 1, 2024).

Kimberly Berman (Fort Lauderdale, FL) succeeded in convincing the Fifth District Court of Appeal to quash an amended discovery order to compel a church to identify church members and produce membership lists in a suit for exploitation, theft, conversion, declaratory relief, and other causes of action brought by a church member against the church. The court agreed with Kimberly’s arguments that the trial court’s order was deficient in that it failed to address the church’s claims of associational privilege under the First Amendment and that there was a disputed issue below as it related to the incorporation status of the church. St. Paul’s Catholic Church v. Hilt, 380 So.3d 1270 (Fla. 5th DCA Mar. 1, 2024).

Audrey Copeland (King of Prussia, PA) persuaded the Third Circuit to affirm the Pennsylvania district court’s grant of summary judgment as to various claims by the plaintiff, a former chief deputy sheriff, alleging retaliation and discrimination based upon sex, political beliefs and the First Amendment, in favor of our firm’s clients. Because the plaintiff failed to allege causation and to show that reconsideration was warranted, the district court’s dismissal of her First Amendment claim and denial of her motion for reconsideration were affirmed. The Third Circuit affirmed the district court’s disposition of the remaining claims because, even assuming the plaintiff established a prima facie case, the defendants provided a legitimate reason for her termination, which the plaintiff failed to show was pretextual. Fritz v. County of Westmoreland, et al., 2024 WL 808970 (3d Cir. Feb. 27, 2024) 

Ralph Bocchino and Shane Haselbarth (both of Philadelphia, PA) were successful in obtaining an order to move a very volatile case out of Philadelphia. This was a sexual assault case where, at first, the venue appeared prima facie good for Philadelphia until Ralph and Shane did a deep dive into the service and found one defendant (the one holding the case in the City) was never served and could not be found. As a result, the case is being transferred to Lackawanna County. Ralph and Shane were also successful in obtaining an order to move another case out of Philadelphia, in a a wrongful death and survival action that was filed in Lackawanna County for discovery before a complaint was filed in Philadelphia. The plaintiff had sustained very severe injuries in a head-on car crash with a tractor trailer that led to his death. Shane filed a motion to consolidate and transfer the case based on Rule 213, which Judge Bright of the Philadelphia County Court of Common Pleas granted. 

Elizabeth Driscoll (New York, NY) secured a victory in the New York Appellate Division, First Department. Following oral arguments, the court unanimously affirmed the lower court’s decision, which denied a medical provider’s Article 75 petition to vacate a master arbitration award. The court held that the Supreme Court correctly denied the petition to vacate the master arbitration award, as neither the lower arbitration award nor the master arbitration award were irrational and neither contained errors of law or fact.

*Results do not guarantee a similar result. 

 

Defense Digest, Vol. 30, No. 2, June 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

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar