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The Quarterly Dose

SIDEBAR: News and Happenings

The Quarterly Dose – August 2025

August 1, 2025

Our Health Care Department Continues to Grow

Susan Kostkas joins our department as a shareholder in Pittsburgh. She is an experienced trial attorney, with decades of experience defending nursing homes and personal care facilities in professional negligence claims resulting in personal injury and death. Prior to becoming a lawyer, Susan was a registered nurse in cardiology and intermediate care units, and she continues to maintain her RN license.

Joel Snavely joins us as shareholder in our Erie office. Joel’s legal career spans more than 30 years, with the majority of his practice focusing on the defense of health care providers in professional negligence and licensure actions. With a primary focus on health care law, Joel represents and advises health care providers in matters that include employment contracts, credentialing, peer review, end of life issues, guardianships, medical records, risk management, controlled substances, fraud and abuse, and nonprofit corporation law. 

Amelia Salem Rashid joins our Pittsburgh office as an associate, bringing with her a background in trial preparation and strategy, managing discovery, and presenting motions and pleadings for common pleas and federal district court.

In our Philadelphia office, we welcome new associates Ryan Harvie and Travis Talbot to the team. Ryan works closely with our clients, guiding them through all phases of litigation. In addition to handling complex medical malpractice and skilled nursing home matters, he handles child welfare cases involving severe allegations of sexual and physical abuse. Travis is experienced in defending health care providers in cases involving complex issues of medical malpractice. As a former public defender and Principal Court Attorney to a justice of the New York State Supreme Court in New York County, he gained invaluable insight into trial practice, motion writing, legal research and judicial decision-making.

As a new associate in our Harrisburg office, Michael Cadigan, Jr., defends medical professional liability matters filed against hospitals, long-term care and rehabilitation facilities, medical practices, physicians, dentists, veterinarians and other health care providers. Having also worked for a plaintiffs’ firm earlier in his career, Michael draws from his experience practicing on both sides of the aisle to effectively counsel clients and help them achieve their desired outcomes.

In our Cleveland office we welcome associate Michael Vigorito, whose legal practice focuses on defending health care clients in civil litigation matters involving medical malpractice and long-term care liability. Prior to practicing law, Michael worked for fire departments and EMS companies in Ohio and Pennsylvania, and he maintains his paramedic certification and continues to work as a flight paramedic and EMS Instructor.

David McColloch, who joins our King of Prussia office as an associate, has devoted his career to helping health care providers and professionals navigate challenging legal situations. He is experienced in handling litigation in state and federal court, from investigation and initial pleadings, to discovery, depositions and expert review, through to resolution. Known for his collaborative style, David provides his clients with comprehensive and strategic representation. 


 

Happenings

Karen “Missy” Minehan (Harrisburg) presented “Mitigating and Responding to a Professional Liability Claim: Documentation, Discovery, and Depositions” for the Skilled Nursing Development Institute’s administrator appreciation event. Missy discussed pre-suit documentation issues, including documentation of arbitration agreements, missing medical records documentation and maintenance of key paper records, intra-lawsuit discovery and depositions.

Melissa Dziak and Victoria Scanlon (Scranton) presented The CHART Institute June member webinar, which focused on advanced practice providers. They discussed the medical legal landscape post-pandemic, jury verdict trends, scope and use of Advanced Practice Providers (APPs), and best practices to mitigate legal risk.

Matthew Keris (Scranton) joined a panel presentation for a webinar put on by the Pennsylvania Coalition for Civil Justice Reform. The program, “Medical Malpractice Pennsylvania Update,” explored a number of emerging issues in medical malpractice, including the continuing surge of Philadelphia cases; dilution of plaintiffs’ burden to prove agents causing harm; preserving issues on appeal and waiver rulings of Superior Court; ethical concerns of double and triple booking; and rise of punitive damages.

Matt also presented two seminars at the Hospital Insurance Forum 2025 Conference in Charleston, South Carolina. He co-presented with Jill Huntley Taylor to discuss “New Jury Considerations in the Age of Big Law, Verdicts, and Medicine,” and he also presented “Al in Healthcare: Views From a Clinical and Legal Perspective.”

Matt also joined a panel discussion at the Medical Professional Liability Association’s annual conference in Austin, Texas, on the topic of preparing for Al from a medico-legal perspective.

Megan Nelson (Orlando) is presenting a webinar on incident reporting for the American College of Healthcare Executives Central Florida Chapter. As an attorney and registered nurse, Megan will offer insight into the importance of incident reporting from both a health care and legal point of view. More information can be found here. 

Megan also presented at the Florida Society for Health Care Risk Management and Patient Safety (FHSRMPS) 45th Annual Conference in Orlando. During a panel presentation on “The Latest on Medical Al and Liability Claims,” Megan discussed the rapid rise in the use of Al technology and the implications for potential liability and increased claims. 


 

Wishing a Fond Farewell and Retirement to Three Long-Time Members of Our Health Care Department!

T. Kevin FitzPatrick is retiring this month after a 32-year career at Marshall Dennehey. During his tenure, Kevin served as Director and Assistant Director of the Health Care Department and on the Board of Directors. Among his colleagues and clients, Kevin is recognized for always practicing law with class. His leadership, dedication and guidance will leave a lasting impact on not only our department, but also our firm.

William Banton, Jr. joined us in 1990 in our Philadelphia office. For those of you who know William, we’re sure you will agree that he practiced law consistent with his personality as a consummate gentleman. William also served as the Assistant Director of our Health Care Department under Kevin FitzPatrick.

Carolyn DiGiovanni joined the firm in 2010 in our King of Prussia office. Known for her tenacity and passion in zealously defending our clients, Carolyn was a valued and respected member of our health care team.

We will miss Kevin, William and Carolyn tremendously. It is hard to see our friends move on, but we thank them for their contributions and wish them the best in their retirement years. 

 

The Quarterly Dose – August 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved.

Firm Highlights

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

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

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.

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. 

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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.

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.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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