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Wendy H. Smith

Senior Counsel

WHSmith@mdwcg.com

Portrait of Wendy H. Smith

Wendy has practiced in the area of construction defect/architects and engineers litigation for more than 30 years, representing general contractors, subcontractors and design professionals. She is an experienced litigator who has tried matters in state and federal courts and has handled innumerable mediation and arbitration proceedings. Wendy has also handled numerous multi-party construction defect/architects and engineers and complex product liability actions, including class actions.

In 1978 Wendy graduated from Smith College with an A.B. in economics and received her juris doctor from Boston University School of Law in 1981. She served as law secretary to the Honorable Charles R. DiGisi, J.S.C., during the 1981-1982 court term.

Wendy was admitted to New Jersey and the United States District Court for the District of New Jersey in 1981 and was admitted to the U.S. Court of Appeals, Third Circuit, and the United States Supreme Court in 1985. She is a member of the Bergen County, Essex County, New Jersey and American Bar Associations.

    • Boston University School of Law (J.D., 1981)
    • Smith College (A.B., 1978)
    • New Jersey, 1981
    • U.S. District Court District of New Jersey, 1981
    • U.S. Court of Appeals 3rd Circuit, 1985
    • Supreme Court of the United States, 1985
    • AV® Preeminent™ by Martindale-Hubbell®
      The Martindale Hubbell rated attorney list is issued by Internet Brands, Inc. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • New Jersey Super Lawyer (2006-2009, 2018; Top 50 Female Lawyers, 2006-2007 )
      The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • New Jersey Top Rated Lawyer (2012-2013 )
    • New Jersey's Women Leaders in the Law (2013 )
    • American Bar Association
    • Bergen County Bar Association
    • Essex County Bar Association
    • New Jersey Bar Association
    • New Jersey Defense Association
    • Obtained a directed verdict on behalf of my client, an engineering firm in a breach of contract action. Plaintiff, a construction company, sought damages for additional unit price work performed during the construction of an airport parking apron. The project was 95% funded by a grant from the New Jersey DOT. Plaintiff performed the additional work without submitting written requests for Change Orders and without receiving written authorization to proceed. Plaintiff contended that the engineer verbally authorized them to proceed with the additional work and that they relied upon that authorization to their detriment. The airport contended that it relied upon the engineer to determine that the work was done properly. The Judge denied Motions for Summary Judgment. At trial, I established that the terms of the Contract required the Plaintiff to submit a written request for a Change Order prior to performing unit price work that would increase the contract price; that Plaintiff's failure to submit the written request for a Change Order prior to doing the work deprived the airport and the DOT of the opportunity to decrease the scope of the project; and that as a result the Plaintiff's failure to comply with the terms of its contract, the DOT denied the request for additional funding. At the end of Plaintiff's case, the Judge granted the motion for a directed verdict dismissing all claims with prejudice.
    • Successfully represented an engineering firm in defense of a suit alleging improper design/construction of improvements to a town park resulting in flooding of plaintiffs' commercial property. I tendered the defense to the contractor; their carrier assumed the defense of my client and resolved the matter, reimbursing my client's costs and counsel fees.
    • Successfully represented a manufacturer of a truss system in defense of a suit alleging multiple construction defects. The matter resolved with no payment by my client.
    • Successfully represented a commercial property owner in a complex construction/fire loss matter in which claimants contended that improper design of a standpipe and a failure to test the standpipe following repairs by my client's contractor, resulted in the loss of two yachts. The matter resolved with no payment by my client.
    • Achieved a defense verdict in a wrongful death case. Plaintiffs' decedent committed suicide by jumping off of the roof of Rahway Hospital. Plaintiffs' claims included negligent security against our client, the contracted security company, along with psychiatric and nursing malpractice. Plaintiff appealed; the Appellate Division unanimously affirmed the Trial Court verdict; plaintiff then filed a Petition for Certification. The Supreme Court granted certification. Following briefing and oral argument, the Supreme Court agreed that Certification had been improvidently granted and dismissed the appeal, which resulted in affirmance of the Trial Court victory.
    • Obtained Summary Judgment on behalf of an Engineering Firm dismissing a wrongful death claim based upon the plaintiffs' failure to provide an Affidavit of Merit.
    • Successfully resolved, through mediation, a complex products liability/construction defect claim in which plaintiffs sought $13.5 million in damages following an explosion of a large, commercial boiler during the commissioning process. I was able to persuade the parties and the court to permit limited, sharply focused discovery, providing enough information for the parties to intelligently participate in mediation, and avoiding the potential for hundreds of days of depositions. As a result, I was able to achieve a global resolution of the case for less than a third of plaintiffs' alleged damages and to significantly limit my client's contribution.
    • Successfully handled a class action construction defect/architectural malpractice claim on behalf of an architectural firm, obtaining a dismissal of all claims against them with no payment.
    • Successfully resolved, during trial, a construction defect claim against the general contractor, architect and engineer arising out of the design of a funeral home. The architect and engineer settled before trial. Plaintiff demanded approximately $1 million in damages from my client. I defended on the grounds that the contractor was justified in relying upon the signed and sealed plans of the licensed architect and engineer. At the close of plaintiffs' case, plaintiff accepted $75,000 in settlement.
    • Obtained Summary Judgment in a case involving a construction worksite accident. The general contractor sued my client, the plaintiff's employer, seeking defense, indemnification and additional insured status pursuant to a contract between the parties. I successfully argued that the plaintiff's claims against the general contractor arose out of the general contractor's active fault and not out of any vicarious liability on the part of my client. I successfully defeated the general contractor's motion for leave to appeal.
    • Achieved a defense verdict following a six-month trial in a $65 million construction case by establishing that the cause of water infiltration was differential movement, not client's work. In the same action, successfully defeated the developer/general contractor's post-trial motion for contractual defense and indemnity.
    • Obtained Summary Judgment in a construction/product liability case in which the demand was in excess of $10 million by establishing that the design of the system was doomed to failure prior to construction; therefore, any deficiency in the ductwork was not a proximate cause of the HVAC system's failure to meet specifications.
    • Successfully resolved through mediation, on behalf of the initial developer/project sponsor of a condominium project, a construction defect claim where the demand was in excess of $23 million by joining appropriate subcontractors, tendering client's defense to and demanding additional insured status from multiple subcontractors/carriers and retaining the appropriate engineering and architectural experts. As a result of these efforts, able to resolve plaintiff's claims for $7.8 million, limit client's contribution to $1.8 million, and obtain contribution in excess of 75% from the subsequent developer/project sponsor, architect and various subcontractors.
    • Obtained a $30,000 verdict following trial of a personal injury matter in which a young, diabetic woman claimed to have tripped and fallen on a defectively designed staircase, sustaining a trimalleolar fracture requiring open reduction with internal fixation. Plaintiff claimed to have sustained post-traumatic arthritis. Her expert testified that she would require subsequent surgery, most likely ankle fusion. Her pre-trial demand had been $1 million.
    • Obtained Summary Judgment dismissing plaintiff's complaint against client, a product supplier, in a product liability case in which the demand was in excess of $1 million based upon the Statute of Limitations. In the same action, obtained Summary Judgment dismissing the purchaser's cross claims for defense and indemnification based upon their failure to perfect their cross claims and upon the fact that once plaintiff's claims were dismissed, any verdict against them would be as a result of their active fault. I successfully defeated the purchaser's appeal of the Order granting Summary Judgment as to the cross claims.

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

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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.

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

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.

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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

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

$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. 

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.