Author Info for Marshall Dennehey

Joseph Acquaviva

Assignment of Benefits Contractor Precluded from Recovery Pursuant to Mortgagee Clause

Key Points: The buyer of a home was not considered a mortgagee under a homeowners insurance policy when the proceeds from the sale were used to pay off the mortgage but there was no evidence that the buyer assumed any legal…more

Assignment of Benefits (AOB), Homeowner's Insurance, Insurance Industry, Insurance Litigation, Mortgages

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Robert Aldrich, III

Forum Non Conveniens Motion Prevails Despite Recent Venue Rule Change

On January 1, 2023, the Supreme Court of Pennsylvania unraveled a 20-year venue rule applicable to medical professional liability cases. Under the previous venue rule, a medical professional liability action may be brought…more

Forum Non Conveniens, Health Care Providers, Liability, Medical Malpractice, PA Supreme Court

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Seth Altman

Appraisal Was Premature Because an Evidentiary Hearing Was First Required to Determine Whether the Policyholder Satisfied the Post-Loss Conditions

Heritage Property & Casualty Ins. Co., Appellant v. Sunset Villas Phase III Condominium Association, Inc., Appellee, Fla. 3rd DCA, 3D23-1672, May 15, 2024, Appeal from non-final order from Miami-Dade Co. Lower Tribunal No…more

Appraisal, Condominium Associations, Damages, Deductibles, Evidentiary Hearings

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Sarah Argo

Who May Be Liable Under the Dram Shop Act?

Key Points: Pennsylvania’s Dram Shop Act does not merely apply to “any person” but, rather, imposes an obligation on particular persons and entities. To establish a basis for Dram Shop liability, it must be shown that the…more

Car Accident, Dram Shop Laws, Drunk Driving, Intoxication, Liability

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Brittany Bakshi

Appellate Court Affirms Trial Court’s Grant of Summary Judgment to Defendant, Finding that Plaintiff Failed to Vault the Verbal Threshold to Recover Damages under New Jersey’s Automobile Insurance Cost Recovery Reduction Act.

McGovern v. Basich, No. A-3951-21, 2023 WL 8613540 (N.J. Super. Ct. App. Div. Dec. 13, 2023) - This case arose from a motor vehicle accident in which the plaintiff had a green light when her car was struck by the defendant’s…more

Auto Insurance, Bodily Injury, Car Accident, Damages, Summary Judgment

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Matthew Behr

Contrary Decisions Highlight Complexity of TCA Claims

The New Jersey Appellate Division and the Third Circuit issued two different opinions in regard to the notice requirements pursuant to the New Jersey Tort Claims Act (TCA). Both highlight the complexity of TCA litigation and…more

Car Accident, Discovery, Discovery Rule, New Jersey, Notice Requirements

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Kimberly Kanoff Berman

Florida Passes Tort Reform: What You Need to Know

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. HB 837 contains sweeping tort reform that will uproot the landscape of Florida civil litigation. The changes apply to causes of…more

Corporate Counsel, Florida, Medical Malpractice, Negligence, Statute of Limitations

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Noah Blake

Take a Closer Look: The Precise Language of an Out-of-State Coverage Provision Leads To Varying Results

Key Points: Where the language in an insurance contract is plain and unambiguous, the courts must interpret the terms of the contract according to their plain meaning as written…more

Car Accident, Contract Terms, Florida, Georgia, Insurance Contracts

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Randy Bock

The Trial Court Incorrectly Entered Directed Verdict for the Insurer

Wenzel v. Homeowners Choice Prop. & Cas. Ins. Co., Fla. 4th DCA, 4D2023-0088, Apr. 24, 2024 - Following a jury trial, the circuit court entered a directed verdict for the insurer and set aside the jury’s verdict, concluding the…more

Insurance Industry, Insurance Litigation, Jury Trial, Jury Verdicts, Notice Requirements

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Taylor Bourguignon

Vetoed New York State Legislation Maintains Status Quo to Favor Out-Of-State Defendants: No Consent to Jurisdiction by Registration

Key Points: Corporation that registers to do business in New York does not necessarily consent to general personal jurisdiction. Proposed amendment to New York Business Corporation Law § 1301(e) would have overturned that law…more

Foreign Corporations, General Jurisdiction, Mallory v Norfolk Southern Railway Co, New York, Out-of-State Companies

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Thomas Brown

Federal Court Dismisses Wrongful Death Action Against an Online Food Delivery Platform

DeRose for Estate of DeRose v. DoorDash, Inc., 2023 WL 3840655 (E.D.N.C. Jun. 1, 2023) - The parents of a pedestrian brought an action for wrongful death and negligent infliction of emotional distress against DoorDash, alleging…more

Bodily Injury, Car Accident, Delivery Drivers, Independent Contractors, Liability

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Joshua Brownlie

The en Banc Third Circuit Concludes Citizens With Prior Felony Convictions for Welfare Fraud Are Among ‘the People’ Protected by the Second Amendment

In 1995, Bryan David Range pleaded guilty to one count of making a false statement to obtain food stamps in violation of Pennsylvania law and faced up to five years’ imprisonment. Following the conviction, Mr. Range attempted to…more

Criminal Convictions, Fraud, Prior Conviction, Second Amendment

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Ariel Brownstein

New Jersey Supreme Court Determined Whether Claims Brought Under the Insurance Fraud Protection Act and the Workers’ Compensation Act Were Subject to the Apportionment Procedure of the Comparative Negligence Act.

Liberty Ins. Corp. v. Techdan, LLC, 253 N.J. 87, 289 A.3d 429 (2023), as revised (Mar. 23, 2023) - The plaintiff alleged that the defendants misrepresented their relationship, ownership structure and submitted fraudulent payroll…more

Comparative Negligence, Compensatory Damages, Misrepresentation, NJ Supreme Court, Workers Compensation Act

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Michael Burke

Third Circuit: Knowledge Requirement Not To Be Overlooked in Proving Retaliation

Watkins v. Pennsylvania Dep't of Corr., No. 22-1426, 2023 WL 5925896 (3d Cir. Sept. 12, 2023) - A corrections officer sued his employer, the Department of Corrections (DOC), alleging a retaliatory hostile work environment in…more

Civil Rights Act, Discrimination, Employment Litigation, Hostile Environment, Retaliation

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Ryan Burns

Policies Alone Fall Short: Establishing a Standard of Care and Duty Requires More Than Internal Procedures

Key Points: A defendant’s violation of its own policies and procedures does not establish a standard of care for the industry. The order of a new trial was improper and the trial court’s prior order for directed verdict and…more

Automotive Industry, Duty of Care, Insurance Litigation, Jury Trial, Negligence

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Josh Byrne

Law Firm Breakups

Law firm breakups are fraught with the potential for attorney misconduct. Attorneys who determine they can no longer work together will often take the additional step of accusing one another of inappropriate conduct. Frequently,…more

Attorney Misconduct, Employment Contract, Firm Leadership, Law Firm Ownership, Legal Ethics

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Heather Cain Truitt

Limiting the Opinions of Plaintiff’s Non-Retained Expert Witnesses Regarding Injury Causation and Permanency

Key Points: Plaintiff’s non-retained experts are treating physicians, and their testimony at trial should be limited to their scope of treatment, diagnosis, and prognosis with respect to the injuries alleged…more

Bodily Injury, Causation, Defense Strategies, Expert Testimony, Expert Witness

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Adam Calvert

The Court of Appeals Addressed Primary Assumption of the Risk Doctrine

Grady v. Chenango Valley Central School District, 2023 WL 3102723 (2023) -Scholars wondered whether this doctrine would still be applicable because of recent New York cases stating that a plaintiff could be granted summary…more

Assumption of the Risk, Bodily Injury, Liability, Sports, Summary Judgment

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Alicia Caridi

Florida Legislature Passes the Roller Skating Rink Safety Act

On May 2, 2023, Florida became the 12th state to pass legislation intended to keep roller rink operators in business by promoting safety, risk management and shared responsibility of liability. The Roller Skating Rink Safety…more

Entertainment Venues, Liability, Risk Management

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Kathleen Carlson

Splitting the Road: Navigating Uninsured Motorist Coverage of Divorced Spouses

Key Points: In Florida, a divorced or separated spouse of an auto insurance policyholder may be entitled to uninsured or underinsured motorist (UM) benefits under their former spouse’s auto policy…more

Auto Insurance, Divorce, Insurance Industry, Marriage, Policy Terms

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Oswald Clark

Pennsylvania Supreme Court Rules that Evidence of Product’s Compliance with Governmental Regulations or Industry Standards Is Inadmissible in Design Defect Cases to Show a Product Is Not Defective Under the Risk-Utility Theory.

Michael and Melissa Sullivan v. Werner Company, et al., No. 18 EAP 2022, 2023 WL 8859656 (Pa. 2023) - The plaintiff was injured at a jobsite when the platform of a six-foot tall mobile scaffold collapsed, causing him to fall…more

Compliance, Evidence, Inadmissible Evidence, Jury Trial, OSHA

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Christopher Conrad

Legal Update for Special Education Law – Updates from the Pennsylvania Department of Education

PDE PUBLISHES 2022–2023 REPORT OF EXPENDITURES RELATING TO EXCEPTIONAL PENNSYLVANIA STUDENTS - Act 16 of 2000, in part, amended Section 1372 of the Public School Code of 1949, and it requires the Pennsylvania Department of…more

Charter Schools, Disabilities, Disabled Children, Educational Institutions, Pennsylvania

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Alec DelConte

Rule 702 Revamped Once Again

Expert testimony is the tool that enables litigators to elucidate concepts that require scientific, technical or specialized knowledge. However, a proponent cannot introduce expert testimony without demonstrating under F.R.E…more

Admissibility, Daubert Standards, Expert Testimony, Expert Witness, Litigation Strategies

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Christopher DiCicco

U.S. Supreme Court Held that Choice-of-Law Clauses in Maritime Contracts Are Presumptively Enforceable Under Federal Maritime Law

Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, Case No. 22-500 (Feb. 21, 2024) - On February 21, 2024, the Supreme Court of the United States, in a unanimous opinion delivered by Justice Kavanaugh, held that…more

Choice-of-Law, Insurance Contracts, Marine Insurance

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Jillian Dinehart

Sixth Circuit Discredits IRS Mileage Rate as Sufficient Payment to Employee Drivers Under the FLSA

Parker v. Battle Creek Pizza, Inc. & Bradford v. Team Pizza, Inc., Nos. 22-2119/3561 (6th Cir. Mar. 12, 2024) (not yet reported) - The Sixth Circuit recently considered a consolidated appeal regarding how delivery drivers should…more

Delivery Drivers, Fair Labor Standards Act (FLSA), IRS, Mileage Reimbursement, Minimum Wage

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Daniel Dolente

New Guidance from Pennsylvania’s Superior Court for Establishing Factual Basis to Transfer Venue

Since the Supreme Court of Pennsylvania’s August 25, 2022, order changed the venue rules in medical malpractice cases—from requiring that cases be filed “only in a county in which the cause of action arose” to applying the same…more

Forum Non Conveniens, Medical Malpractice, Transfer of Venue

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Lee Durivage

The Federal Trade Commission’s Proposed Evisceration of Non-Compete Agreements – What the Proposed Rule Means for Employers

Key Points: The Federal Trade Commission is proposing to bar virtually all non-compete agreements between employees and employers. The FTC’s proposed rule would not only prohibit non-compete agreements moving forward, but it…more

Employment Contract, Federal Trade Commission (FTC), Non-Compete Agreements, Restrictive Covenants

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Benjamin Durstein

Superior Court Affirms IAB Decision Enforcing Workers’ Compensation Settlement Agreement and Rejected Claimant’s Attorney’s Argument of Entitlement to Common Law “Attorney’s Charging Lien” That Was Not a Term of the Settlement

Webb v. State of Delaware, 2024 WL 2077263 (Del. Super. May 9, 2024) - Mr. Webb workers’ compensation claim was denied, and he filed a petition with the Industrial Accident Board that sought acknowledgment of the accident,…more

Compensation & Benefits, Medical Expenses, Settlement Agreements, Temporary Disability Insurance, Workers' Compensation Claim

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Howard Dwoskin

Message From the Executive Committee

John F. Kennedy once said, “Change is the law of life, and those who look only to the past and present are certain to miss the future.” Indeed, every time we ring in a new year, there are inevitably new laws, regulations, or…more

Insurance Industry, Insurance Litigation, Medical Malpractice, Tort Reform

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Scott Eberle

PA Superior Court Upholds Gist of the Action Doctrine to Bar Legal Malpractice Claim

Outerlimits Techs., LLC v. O’Connor, No. 169 EDA 2023, 2023 WL 8524299 (Pa. Super. Ct. Dec. 8, 2023) (non-precedential decision) - The Pennsylvania Superior Court affirmed the trial court’s dismissal of the appellant’s legal…more

Attorney Malpractice, Breach of Contract, Pennsylvania, Professional Liability, State Action Doctrine

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Lela Eke

When Favors Feel Like Obligations: A Closer Look at the Special-Mission Exemption to the Going-and-Coming Rule

Key Points: An employee’s off-site accident may be compensable under the New Jersey Workers’ Compensation Act, pursuant to the “special-mission” exception to the going-and-coming rule, even if the employee is doing a favor for…more

Compensation, Employees, New Jersey, Workers Compensation Act

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David Fagnilli

Ohio Supreme Court Applies Tort Conflict of Law Rules to an Insurance Bad Faith Claim.

Scott Fetzer Co. v. Am. Home Assur. Co., Inc., 2023-Ohio-3921 - In this 5-2 decision from the Ohio Supreme Court, the majority held that the tort conflict of law rules found in Section 145 of 1 Restatement of the Law 2d,…more

Bad Faith, Indemnity, Insurance Claims, Insurance Industry, Insurance Litigation

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Laurianne Falcone

Sometimes Discovery Disputes Can Be Interesting

Key Points: The distinction between security video and surveillance video is important. Preservation of all possible video is critical to avoiding spoliation claims…more

Data Preservation, Discovery, Discovery Disputes, Evidence, Video Recordings

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Carl Fejko

The Political Subdivision and Torts Claim Act’s Sexual Abuse Exception: Application to Post-Assault in School Harassment

Key Points: The Political Subdivision and Torts Claim Act still provides immunity to school districts in cases where a student adjudicated of sexual assault continues harassment of a student in the school setting because no…more

Negligence, School Districts, Sexual Abuse, Sexual Harassment, Students

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Shannon Fellin

What’s Hot in Workers’ Comp – Special PA Alert

In Schmidt v. Schmidt, Kirifides & Rassias (WCAB), 1039 C.D. 2021, filed November 14, 2023, a case of first impression, the Pennsylvania Commonwealth Court ruled that claimants are entitled to reimbursement for out-of-pocket…more

Cannabidiol (CBD) oil, Out-of-Pocket Expenses, PA Supreme Court, Reimbursements, Workers Compensation Act

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Robert Fitzgerald

Lack of Insurance Coverage Does Not Defeat Workers’ Compensation Bar for New Jersey Workers’ Compensation Intentional Injury Claim

Key Points: The New Jersey Workers’ Compensation Act requires all employers to obtain workers’ compensation insurance coverage or be subject to both criminal and civil penalties…more

Insurance Industry, New Jersey, Workers' Compensation Claim, Workplace Injury

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Ryan Friel

FINRA Grants Respondents’ Motions for Sanctions Against Claimant and Broker’s Request for Expungement

Marlin Keith Andrews v. William S. Humber and Stifel, Nicolaus & Co., Inc., FINRA Case #22-01176 - The claimant asserted causes of action including failure to supervise, breach of fiduciary duty, respondeat superior,…more

Breach of Duty, Broker-Dealer, Expungement, Financial Industry Regulatory Authority (FINRA), Financial Services Industry

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Adam Fulginiti

Telemedicine Consequences Resulting from the End of the COVID-19 Public Health Emergency on May 11, 2023

On January 30, 2023, the White House issued a statement that the Biden Administration will end the COVID-19 public health emergency on May 11, 2023. President Biden confirmed this event during the February 7, 2023, State of the…more

Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Health Care Providers, Public Health Emergency, Telehealth

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Dana Gittleman

Court Reiterated Prevailing Standard in Pennsylvania for Establishing Existence of ‘Special Relationship’ Between Insurance Customer and Insurance Broker.

Mohanan, et al. v. Liberty Mutual Personal Insurance Company, 2023 WL 8026106 (E.D. Pa. Nov. 20, 2023) - The court granted the defendant’s motion to dismiss to strike references to a “special relationship” owed to the plaintiffs…more

Fiduciary Duty, Insurance Agents, Insurance Brokers, Insurance Industry, Special Relationship

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Jessica Gordon

What’s Hot in Workers' Comp – Special NJ Alert

On January 16, 2024, the Governor of New Jersey signed A-5909/S-4267 into law. The amendment revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and emergency personal. The…more

Emergency Response, Public Safety, Workplace Hazards, Workplace Injury

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Benjamin Goshko

Methadone Clinic Owed No Duty to Jogger Killed by Negligently Treated Patient

Ritz v. Ramsay, 305 A.3d 1056 (Pa. Super. 2023) - The decedent plaintiff in this matter was struck and killed by a vehicle operated by Ramsay, a patient of the defendant, a methadone clinic. Ramsay had been given an unusually…more

Bodily Injury, Car Accident, Duty to Warn, Health Care Providers, Liability

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Stephen Gross

Caution: The Potential Quagmire of Unwanted Arbitration Clauses Are Often Buried in the Details

Key Points: Consider including third parties or remote parties to a complaint. Arbitration clauses can appear in various contracts, including product warranties. The potential dangers of agency relationships in construction…more

Arbitration, Construction Industry, Dispute Resolution, Warranties

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Lisa Grubb

Delaware ‘Meet and Confer’ Rule Requires Human Contact??!

Key Points: The Superior Court of Delaware’s “meet and confer” requirement is mandated by the notice provision articulated in Del. R. Civ. P. Super. Ct. 37(a). The Rule has long been interpreted by counsel to require only an…more

Delaware, Discovery, Discovery Disputes, Dispute Resolution, Meet and Confer

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Brad Haas

Failure to Join Both Property Owners Leads to Case Dismissal

Key Points: Pennsylvania Superior Court recently held that a plaintiff’s failure to join an indispensable party property co-owner was grounds for full dismissal of his premises liability claim…more

Bodily Injury, Joint Ownership, Joint Tenancy, Premises Liability, Property Owners

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Holly Hamilton

Florida Court of Appeals Holds that an EEOC Charge Does Not Need to Specifically Allege the Florida Civil Rights Act to Exhaust Administrative Remedies Prior to Filing a Lawsuit.

Ramos v. Steak N Shake, Inc., 2D22-3465, 2023 WL 8791666 (Fla. 2d DCA Dec. 20, 2023) - Florida’s Second District Court of Appeal examined the issue of whether section 760.11, Florida Statutes, requires that the aggrieved party…more

Discrimination, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC), Florida, Retaliation

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Kiara Hartwell

The Appellate Division Reversed and Remanded a Trial Court Order Denying the Plaintiffs’ Motion to Amend Their Complaint and Dismissed Their Matter With Prejudice

Estate of Alfredo Pabatao, et al. v. Palisades Med. Ctr., et al., No. A-1740-22 (Apr. 24, 2024) - The plaintiffs had filed a complaint for survival and wrongful death against the defendants, asserting the defendants caused the…more

Coronavirus/COVID-19, Occupational Exposure, Personal Protective Equipment, Workers’ Compensation, Wrongful Death

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Shane Haselbarth

Pennsylvania Supreme Court to Review Constitutionality of Sovereign Immunity–Based Damages Cap

Freilich v. Septa, No. 10 EAP 2024, review granted Mar. 11, 2024 - States, including the Commonwealth, enjoy immunity from suit and have since “before the ratification of the Constitution.” Goldman v. Septa, 57 A.3d 1154, 1172…more

Appellate Courts, Constitutional Challenges, Damage Caps, Damages, PA Supreme Court

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Adam Huber

Waiting on a Workers' Compensation Lien Reimbursement in New Jersey? You May Have to Wait a Little Longer. Section 40 and the Timeline for Satisfaction

Key Points: The New Jersey workers’ compensation statute and applicable case law protects employers’ worker’s compensation lien rights against an injured worker’s third-party recovery…more

Compensation & Benefits, Liens, New Jersey, Reimbursements, Workers' Compensation Claim

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Jennifer Hutchins

Addition of a Definition for the Term “Ttructural Damage” to Section 627.706(2) Does Not Alter an Insured’s Burden of Proof

Citizens Prop. Ins. Corp. v. Barberan, Fla. 2nd DCA, 2D22-2744, Apr. 3, 2024 - In April, the Second District Court of Appeal affirmed the lower court’s ruling that a statutory change, which added a definition for the term…more

Burden of Proof, Homeowners, Insurance Claims, Insurance Industry, Insurance Litigation

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Rachel Insalaco

Legal Update for Special Education Law – Updates from the Pennsylvania Department of Education

Governor Josh Shapiro recently announced that the proposed 2024-2025 budget for the Pennsylvania Department of Education includes a $1,436,815,000 special education appropriation…more

Disabilities, Educational Institutions, Free Appropriate Public Education (FAPE), IDEA, Pennsylvania

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Paul Johnson

Appellate Court Reverses $224 Million Verdict Against Johnson & Johnson

On October 4, 2023, a panel of three judges in the New Jersey Appellate Division reversed a $224 million verdict against Johnson & Johnson, awarded to a consolidated group of four plaintiffs who alleged their use of the…more

Expert Testimony, Expert Witness, Johnson & Johnson, Reversal, Toxic Exposure

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Jonathan Kanov

Seismic Changes May Soon Be Coming to Florida Statutes for Comparative Negligence, Lodestar Fee, Statute of Limitations and One-Way Attorney’s Fees Against Insurers

With the support of Governor Ron DeSantis, Florida House Bill 837 was filed on February 15, 2023, which would bring comprehensive reforms to civil litigation in Florida. In an attempt to try to stomp out Florida’s notoriety as…more

Comparative Negligence, Florida, Statute of Limitations

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Matthew Keris

Long-Term Care Facility Faces Criminal Scrutiny for Early COVID-19 Actions

On March 14, 2023, the Los Angeles County District Attorney announced multiple felony criminal charges would be filed against a nursing home facility and three of its administrators for their handling of a COVID-19 infected…more

Coronavirus/COVID-19, Enforcement Actions, Health Care Providers, Long Term Care Facilities, Nursing Homes

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Oner Kiziltan

County Court Rules in Favor of Insurer Regarding Attorney’s Fees in Suit Where Insurer Cured Plaintiff’s § 627.736(10) Demand Letter by Issuing Payment for the Full Amount Demanded.

Steven J. Melilli, D.C., P.A., (Patient: M. Krugliak) v. State Farm Mutual Auto. Ins. Co., County Court, 6th Judicial Circuit Pinellas County, Case No: 19-004553-SC - This suit involved a complaint filed by the plaintiff…more

Attorney's Fees, Demand Letter, Insurance Industry, Insurance Litigation

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Emily Knepper

Lack of Notification of Service of Process by Individual Served at Residence of Defendant is Not Excusable Neglect

Neumoyer v. J.B. Hunt Transportation Services, Inc., 2024 WL 261164 - This case arises from a motor vehicle accident in which the defendant Hill was operating his motor vehicle with the plaintiff as a passenger when their…more

Bodily Injury, Car Accident, Default Judgment, Excusable Neglect, Notice Requirements

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Estelle Kokales McGrath

The Customer is Not Always Right: Considering the Customer’s Conduct When Defending Insurance Brokers

Insurance brokers are usually sued when their customers find themselves without the necessary insurance to protect themselves from suit or damages. While brokers can face liability in certain scenarios, they have defenses that…more

Insurance Brokers, Insurance Industry, Insurance Litigation, Liability, Negligence

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Taylor Kosko

Appellate Court Reverses $224 Million Verdict Against Johnson & Johnson

On October 4, 2023, a panel of three judges in the New Jersey Appellate Division reversed a $224 million verdict against Johnson & Johnson, awarded to a consolidated group of four plaintiffs who alleged their use of the…more

Expert Testimony, Expert Witness, Johnson & Johnson, Reversal, Toxic Exposure

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Heather LaBombardi

New Jersey Courts Address Plaintiffs’ Demands to Inspect Electronic Medical Records – Appellate Division Sides with Plaintiffs (with Restrictions)

Estate of Lasiw by Lasiw v. Periera, 475 N.J. Super. 378 (2023) - Plaintiffs have increasingly demanded to gain access to the Electronic Medical Records (EMR) of health care providers/facilities, citing Rule 4:18-1, and Rule…more

Discovery, Electronic Medical Records, Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA), Personally Identifiable Information

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Todd Leon

Supreme Court of New Jersey Holds that Indemnification Can Exist in First-Party Claims, With the Appropriate Language

For many years, the rule of law governing claims for contractual indemnification in New Jersey has been well-established under the so-called “Azurak” rule, which requires that, in order for a party to be indemnified for its own…more

Attorney's Fees, Bylaws, Condominium Associations, Indemnification, Insurance Industry

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Adam Levy

The Lack of a Retainage Payment to a General Contractor Did Not Bar Payment to the General Contractor’s Subcontractors, Regardless of a Condition Precedent Requiring That the General Contract Be Paid Before the Subcontractors

As addressed in the unreported case of J &M Interiors, Inc. v. Centerton Square Owners, LLC, (A-2536-19, 2021 WL 1976648 (N.J. Super. Ct. App. Div. May 18, 2021), the lack of a retainage payment to a general contractor (GC) did…more

Construction Contracts, Construction Industry, General Contractors, Pay if Paid, Subcontractors

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Frank Madia

Limiting the Opinions of Plaintiff’s Non-Retained Expert Witnesses Regarding Injury Causation and Permanency

Key Points: Plaintiff’s non-retained experts are treating physicians, and their testimony at trial should be limited to their scope of treatment, diagnosis, and prognosis with respect to the injuries alleged…more

Bodily Injury, Causation, Defense Strategies, Expert Testimony, Expert Witness

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Kevin Majernik

Legal Roundup - Pennsylvania

Pennsylvania Superior Court holds that trial court correctly entered nonsuit on plaintiff’s corporate negligence claim for failing to show actual or constructive knowledge…more

Evidence, Health Care Providers, Hospitals, Medical Malpractice, Negligence

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Nathan Marinkovich

Pennsylvania Superior Court Further Strengthens Statute of Repose Construction Defense.

Johnson v. Toll Brothers, Inc. et al., 302 A.3d 1231 (2023) - The Superior Court of Pennsylvania recently affirmed the defendants’ motion for summary judgment dismissing the plaintiffs’ construction defect claims on the grounds…more

Construction Defects, Construction Industry, Construction Project

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Sara Mazzolla

11th Circuit Court of Appeals Vacates Ruling Against Plaintiff in Amusement Park Discrimination Case

Campbell v. Universal (11th Cir. U.S. Court of Appeals) - In this case, the plaintiff argued that the amusement park imposed discriminatory eligibility criterion, in violation of the ADA, when it refused to permit him to ride on…more

Americans with Disabilities Act (ADA), Amusement Parks, Disability Discrimination, Eligibility, Safety Precautions

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Jordan Mazzoni

Challenge to Sovereign Immunity/Damages Cap

In Freilich v. Se. Pennsylvania Transportation Auth., 302 A.3d 1261 (Pa. Commw. Ct. 2023), appeal granted, No. 245 EAL 2023, 2024 WL 1044586 (Pa. Mar. 11, 2024), the Pennsylvania Supreme Court was asked whether Section 8528(b)’s…more

Bodily Injury, Constitutional Challenges, Damages, PA Supreme Court, Pedestrian Accidents

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Lindsay McCormick

Competent, Substantial Evidence Is the Name of the Game in Construction Disputes

Q.D.S. Development, Inc. v. National Lining Systems, Inc., 2024 WL 357984 (Fla. 3d DCA Jan. 31, 2024) - It is common in construction disputes between sophisticated parties for the parties to agree to engage in a bench trial, as…more

Appellate Courts, Bench Trial, Construction Disputes, Construction Industry, Construction Project

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Jennifer Meyers

Supreme Court Finds Distinction in Applicability of Law Enforcement’s Governmental Immunity

Adesokan v. Town of Bloomfield, 347 Conn. 416, 297 A.3d 983 (2023) - This is a very interesting appeal involving whether a police officer holds a special defense of governmental immunity in the appellant’s underlying personal…more

Car Accident, Governmental Immunity, Law Enforcement, Negligence, Summary Judgment

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Michelle Michael

New Jersey Appellate Division Addresses the Statute of Limitations Accrual Date in a Constructive Discharge Claim Brought Under the NJLAD and CEPA

Andriani v. Hudson Cnty. Sch. of Tech., No. A-1704-22, 2024 WL 464577 (N.J. Super. Ct. App. Div. Feb. 7, 2024) - This appeal involved the analysis of the accrual date in the context of a constructive discharge claim brought…more

CEPA, Employment Litigation, New Jersey, NJLAD, Statute of Limitations

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Raymond Michaud

Develop the Helpful Habits to Ward Off Litigation

Reprinted with permission from the Pennsylvania CPA Journal, a publication of the Pennsylvania Institute of Certified Public Accountants. CPAs provide services in an environment that is susceptible to litigation, as they often…more

Accountants, Breach of Contract, CPAs, Financial Services Industry, Negligence

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Karen Minehan

The New and Broadened Law Governing Venue in Pennsylvania Medical Malpractice Cases

Key Points: Recent Pennsylvania Supreme Court actions may dramatically broaden the counties in which plaintiffs may file medical malpractice actions. Such actions can now be filed and litigated hundreds of miles from the…more

Health Care Providers, Medical Malpractice, PA Supreme Court, Pennsylvania

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Patricia Monahan

Pa. Supreme Court Evaluates Constitutional Parameters of a Jury’s Punitive Damage Award

While it is well known that an insured has a clear and convincing standard of proving bad faith in order to recover such damages, it is lesser recognized that an insured does not have to prove outrageous conduct or evil motive…more

Bad Faith, Insurance Industry, Insurance Litigation, Joint Tortfeasors, Liability

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Aaron Moore

In an Atypical Legal Malpractice Case, the Delaware Superior Court Dismisses Insurance Agency’s Legal Malpractice Claim Against Its Former Attorneys

In GMG Ins. Agency v. Margolis Edelstein, 2023 WL 2854760 (Del. Super. Ct. Apr. 10, 2023), reargument denied sub nom. GMG Ins. Agency v. Edelstein, 2023 WL 3522297 (Del. Super. Ct. May 17, 2023), the plaintiff, an insurance…more

Attorney Malpractice, Insurance Industry, Professional Liability, Tortious Interference

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Keri Morris-Johnston

In Order to Qualify for Unemployment Benefits, the Unemployed Individual Must Be Able and Available to Work

The plaintiff had been out of work for medical reasons for several months. She was medically cleared to return to work in March 2020, but due to the COVID-19 pandemic and her pre-existing medical condition, her medical provider…more

Reasonable Accommodation, Unemployment Benefits

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Robert Morton, IV

Shoddy Home-Improvement Contracting? Grounds for Recovering Treble Damages and Attorneys Fees under Pennsylvania Home Improvement Consumer Protection Act and Pennsylvania Unfair Trade Practices and Consumer Protection Law

Key Points: Trial courts are determined to protect the individual consumer from bad-acting contractors, including with the award of treble damages and attorneys fees under the HICPA and URPCPL…more

Attorney's Fees, Construction Contracts, Construction Defects, Construction Industry, Damages

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Joanne Nachio

Florida Passes Tort Reform: What You Need to Know

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. HB 837 contains sweeping tort reform that will uproot the landscape of Florida civil litigation. The changes apply to causes of…more

Corporate Counsel, Florida, Medical Malpractice, Negligence, Statute of Limitations

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Alan Nash

Florida Passes Tort Reform: What You Need to Know

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. HB 837 contains sweeping tort reform that will uproot the landscape of Florida civil litigation. The changes apply to causes of…more

Corporate Counsel, Florida, Medical Malpractice, Negligence, Statute of Limitations

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Anthony Natale III

Beware of the Language Used in Your Settlement Agreements: Medicare Is Watching

The workers’ compensation practitioner has now become a forced bedfellow of CMS, like it or not. If you fail to “issue spot” in relevant settlements, you will have problems. Reprinted with permission from the October 2, 2023…more

Centers for Medicare & Medicaid Services (CMS), Disability, Medicare, Settlement Agreements, Workers' Compensation Claim

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Taylor Naughton

Senate Bill Changes Statute of Limitations, Statute of Repose, and Amends Statutory Building Code Violation

Senate Bill 360, which was signed by Governor DeSantis on April 13, 2023, amends the statute of limitations and statute of repose for construction claims and amends the statutory building code violation claim. The statute of…more

Building Codes, Construction Industry, Florida, Statute of Limitations, Statute of Repose

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Megan Nelson

Florida Tort Reform: The Impact of House Bill 837 on Health Care Litigation

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837 into law. Also known as the “Civil Remedies” or “Tort Reform” law, HB 837 has changed civil litigation in Florida, including providing a uniform standard for…more

Damages, Florida, Health Care Providers, Healthcare, Medical Bills

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John Ninosky

Third Circuit Holds There Is No Right to Intervention in a Medical Context

Key Points: There is a constitutional right to medical care for those individuals in custody. Although there is a right to have a government actor intervene when the underlying constitutional violation involves excessive…more

Eighth Amendment, Healthcare, Inmates, Prison, Qualified Immunity

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Carolin Pacheco

Defendant’s Request for Attorney’s Fees Within Its Summary Judgment Motion is Insufficient to Place Plaintiff on Notice That Defendants Are Claiming Attorney’s Fees

Barnhardt Construction, LLC v. Steven C. Hildreth, et al., 31 Fla. L. Weekly Supp. 600a (Fla. 5th Cir. Ct. 2024) - On February 6, 2024, the Fifth Circuit Court in Hernando County, Florida, rendered a decision regarding a…more

Attorney's Fees, Construction Liens, Florida

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Michael Packer

District Court Grants Motion for Rehearing but Maintains Its Prior Decision That Affirmed the Trial Court’s Decision in Favor of Defendant in a Subrogation Dispute

Universal Property and Casualty Insurance Company a/s/o Perez v. Laguna Riviera Condominium Assn, Fla. 2nd DCA, 2D23-34, Mar. 1, 2024 - In this interesting dispute, the Second District Court of Appeal took the unusual step of…more

Condominium Associations, Insurance Industry, Insurance Litigation, Policy Terms, Property Damage

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Victoria Pepe

Legal Roundup - New Jersey

An “almost perfect storm of events” warranted additional time to file an Affidavit of Merit. Gonzalez v. Maher Ibrahim, et al., No. A-3719-22, 2024 WL 649332 (N.J. App. Div. Feb. 16, 2024) (approved for publication) - The…more

Affidavits, Health Care Providers, Medical Malpractice, Trials

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Noah Prosser

Failure to Provide Reasonable Notice and Opportunity to Be Heard Rendered Trial Court’s Involuntary Dismissal of Plaintiff’s Suit a Violation of Due Process

Babcock New Haven, LLC v. Vaheed Teimouri and Teimouri & Associates, Fla. 5th DCA, 5D2023-1525, May 3, 2024 - This appeal followed a trial court’s entry of a final order dismissing Babcock New Haven, LLC’s lawsuit for failure to…more

Dismissals, Due Process, Failure to Comply, Florida, Jury Trial

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Lauren Purcell

Pennsylvania Supreme Court Rules that Procedural Posture of Case Is Irrelevant When Determining Whether a Court Decision Violated the Coordinate Jurisdiction Rule

Ivy Hill Congregation of Jehovah’s Witnesses v. Dep’t of Human Servs., 2024 WL 561402 (Pa. Feb. 13, 2024) - The plaintiff filed a petition for declaratory judgment with the Commonwealth Court of Pennsylvania, seeking a…more

Declaratory Judgments, Jurisdiction, PA Supreme Court, Pennsylvania

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Stephen Purcell

Pennsylvania Superior Court Affirms Defendant’s Immunity Under the Mental Health Procedures Act

Wunderly v. St. Luke’s Hospital et al., 2023 WL 3993737 (Pa. Super. Jun. 14, 2023) - The plaintiff filed wrongful death and survival actions against the defendants, asserting claims of negligence and corporate negligence. The…more

Health Care Providers, Liability, Negligence, Wrongful Death

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Danielle Robinson

Appellate Court Affirms Ruling a Sworn Proof of Loss and Estimate Related to Later Claim Was Inadmissible as Hearsay and Irrelevant

Universal Property & Casualty Insurance Company v. Luis Nacimiento, Fla. 3rd DCA, 3D23-0301, Apr. 3, 2024 - The insured reported a claim to Universal Casualty & Property Insurance Company in February 2016 for water damage from a…more

Fraud, Fraudulent Concealment, Insurance Claims, Insurance Industry, Insurance Litigation

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Amara Benitez Rodriguez

Plaintiff Does Not Have to Pay for It and Neither Should You: Preventing Plaintiff’s Introduction of Past Medical Expenses that Have Been Adjusted and/or Written Off by Collateral Source Payments

Key Points: Evidence of past medical bill charges that have been paid, adjusted, or written off are not relevant. Florida case law establishes that Medicare/Medicaid recipients are precluded from showing evidence of medical…more

Admissibility, Collateral, Evidence, Liability, Medicaid

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Steven Saal

Superior Court of Connecticut Dismissed Claim that an Accident Could Have Been Avoided if Trucking Company Had Installed a Collision Mitigation System Aboard Its Truck

Hunter v. Daimler Truck North America, LLC, 2024 WL 834592 (Sup. Ct. Waterbury, Feb. 22, 2024) - This matter involved an accident where a box truck driver fell asleep and veered to one side of the road, flipping the vehicle in…more

Car Accident, Motor Vehicles, Negligence, Trucking Accident

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Evan Saltzman

As an Incident Occurred While Transporting a Passenger in New Jersey, Insurance Company’s Endorsement 7212 Acted to Increase Its Underinsured Motorist’s Coverage Limits to Meet New Jersey’s Limits of $1.5 Million as Specified by New Jersey Law.

Nicolas R. Lafont v. Farmers Insurance Exchange, 2023 WL 8698908, Nov. 29, 2023 (Pa.Com.Pl.) - The plaintiff, who was driving for Uber at the time of the accident, alleged that the defendant’s insured, Claudio Palacios-Serrano,…more

Bodily Injury, Car Accident, Negligence, Reckless Driving

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Michael Salvati

Federal District Court Finds Post-Incident Human Factors Review of Product Manual to Be Discoverable

Martz v. Polaris Sales Inc., Case. No. 4:22-CV-01390, 2024 WL 199550 (M.D. Pa. Jan. 18, 2024) - In this product liability case, the plaintiff’s wife lost control of the ATV she was operating and died in a fatal accident. A…more

Disclosure, Discovery, Document Productions, Work-Product Doctrine

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Josie Scanlan

Settlement Agreements at Mediation Must Be Put in Writing and Signed to Be Enforceable

Gold Tree Spa, Inc., PD Nail Corp., et al., No. A-3748-21 (App. Div. Mar. 28, 2023) - The New Jersey Appellate Division affirmed the Law Division’s orders denying the defendants’ motion to enforce an unsigned settlement…more

Enforceability, Mediation, Mediators, Settlement Agreements

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Corey Setterlund

Circuit Court of Appeals Finds Fla. Stat. § 627.70132 Does Not Require Notice of a Supplemental Claim to Include an Estimate of Damages

Great Lakes Insurance SE v. Concourse Plaza A Condominium Ass’n, 22-13141, 11th Cir., Apr. 15, 2024 - In this unpublished opinion, the Eleventh Circuit was presented with the issue of whether Florida Statute § 627.70132 required…more

Florida, Insurance Claims, Insurance Industry, Insurance Litigation, Property Damage

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Teresa Sirianni

Legal Update for Special Education Law – Updates from the Pennsylvania Department of Education

Commonwealth Court voids Pennsylvania Department of Education’s newly imposed Age-Out Plan for failure to implement it in accordance with Pennsylvania Laws.* PSBA, Inc., et al. v. Dr. Khalid N. Mumin, Secretary of Education of…more

Department of Education, Disabilities, Disabled Children, Educational Institutions, Pennsylvania

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John Slimm

Legal Updates for Lawyers’ Professional Liability - Case Law Update

Marshall Dennehey Attorneys Successful in Legal Malpractice Action Arising Out of a Complex Wrongful Medical Diagnosis Case - On October 10, 2023, Marshall Dennehey attorneys Jack Slimm and Jeremy Zacharias were successful in a…more

Expert Testimony, Medical Malpractice, Standard of Care, Summary Judgment

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Thomas Slogar

Limiting the Opinions of Plaintiff’s Non-Retained Expert Witnesses Regarding Injury Causation and Permanency

Key Points: Plaintiff’s non-retained experts are treating physicians, and their testimony at trial should be limited to their scope of treatment, diagnosis, and prognosis with respect to the injuries alleged…more

Bodily Injury, Causation, Defense Strategies, Expert Testimony, Expert Witness

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Thomas Specht

Denial of Insurer’s Petition for Limited Intervention in Trial Court Action Against Insured to Determine Whether Coverage Exclusion Applies is Immediately Appealable

Key Points: Trial court’s denial of insurer’s petition for limited intervention to determine whether coverage exclusion applied was immediately appealable pursuant to Pa. R.A.P. 313(b)…more

Bodily Injury, Denial of Insurance Coverage, Insurance Industry, Insurance Litigation, Liability Insurance

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Alesia Sulock

Pennsylvania Superior Court Continues to Apply Gist of the Action Doctrine to Legal Malpractice Claims.

Outerlimits Technologies, LLC v. Cozen O’Connor, No. 169 EDA 2023, 2023 WL 8524299, unpublished (Pa. Super. Dec. 8, 2023) - The Pennsylvania Superior Court affirmed a trial court ruling dismissing a legal malpractice breach of…more

Attorney Malpractice, Breach of Contract, Pennsylvania, Professional Liability, State Action Doctrine

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Nicole Tanana

Can Felons Pursue Damages Against Their Providers for Their Criminal Conduct? The Pennsylvania Supreme Court Says No

Key Points: Pennsylvania Supreme Court recently evaluated the no felony conviction recovery rule. No felony conviction recovery rule bars medical malpractice and indemnification claims brought against murderer’s medical…more

Damages, Felony Murder, Health Care Providers, Indemnification, Medical Malpractice

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Pauline Tutelo

A Cautionary Tale – Diary, Diary, Diary

Arabruny Lindor v. Janoris Jenkins, Superior Court of New Jersey, Appellate Division, A-1671-22 (Mar. 5, 2024) - It is a well-known tenet of law in New Jersey that a party has 30 days from the arbitration award to file a trial…more

Arbitration, Arbitration Awards, Filing Deadlines, New Jersey, Trial de Novo

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Elizabeth Underwood

On the Horns of a Trial Dilemma: Addressing a Prior Conviction on Direct Examination or Waiving the Right to Contest the Admissibility on Appeal

Key Points: A recent Superior Court case found the filing of an unsuccessful motion in limine to preclude a prior conviction does not preserve the issue on appeal if the defendant strategically chooses to then introduce the…more

Admissibility, Appellate Review, Evidence, Prior Conviction, Trials

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Danielle Vugrinovich

Looking to Downsize Office Space or Reduce Storage Costs? What You Should Know About Federal Document Retention Requirements for Employee Records

Key Points: An employer must keep employee information confidential. Keep employee-related documents for the time periods that federal and state laws require. Safeguard the confidentiality of sensitive information within…more

Americans with Disabilities Act (ADA), Data Retention, Employees, Equal Employment Opportunity Commission (EEOC), Personal Information

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Linda Wagner Farrell

A Judge of Compensation Claims Must Be Specific When Awarding Non-professional Attendant Care to a Family Member

Kelly Girardin v. AN Fort Myers Imports, LLC, Gallagher Bassett, DCA#: 22-1485, Decision date: May 08, 2024 - The claimant petitioned for attendant care benefits to be paid to her husband. The judge of compensation claimant…more

Attendant Care, Compensation & Benefits, Workers Compensation Awards, Workers' Compensation Claim

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Francis Wickersham

Pharmacy Staffed by Pharmacist Provided by an Employee Leasing Agency is a Provider as Defined by Section 109 of the Act. When a Physician Has Ownership Interest in Said Pharmacy, a Referral to the Pharmacy Violates the Act’s Self-referral Prohibition

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office & SWIF; No. 660 C.D. 2020; No. 617 C.D. 2020; filed May 16, 2024; President Judge Cohn-Jubelirer - In this case, 700 Pharmacy filed five Fee Review…more

Health Care Providers, Insurance Industry, Ownership Interest, Pharmacies, Pharmacist

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Christopher Woodward

Household Vehicle Exclusion Once Again Enforced—Under the Appropriate Facts

The household vehicle exclusion has once again been proven to be viable and enforceable—under the right circumstances. Major was using her mother’s vehicle when she was struck by another vehicle operated by Cruz. Major…more

Auto Insurance, Car Accident, Insurance Industry, Insurance Litigation, Policy Exclusions

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Kristen Worley

Including Settled Defendants on a Verdict Sheet: A Reminder that No Assumptions Are Allowed

Key Points: Pennsylvania’s Fair Share Act permits the inclusion of a defendant or other non-party who has entered into a release with a plaintiff to be included on the verdict sheet and, thus, subject to apportionment of…more

Apportionment, Discovery, Immunity, Liability, Pennsylvania

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Gabrielle Wright

Third District Court Quashes Order Granting Motion for Protective Order Relating to a Corporate Representative’s Deposition

Hamilton v. Citizens Property Insurance Corporation, Fla. 3rd DCA, 3D23-1934, May 1, 2024 - The petitioner in this matter (the plaintiff below) sought certiorari review of a discovery order granting a motion for protective order…more

Discovery, Document Productions, Evidence, Florida, Insurance Litigation

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John Yaninek

Pennsylvania Superior Court Discounts Big-Box Retail Sales for Determining Venue

Key Points: Superior Court decision in Walton v. Baby Trend provides relief from pro-plaintiff venue decisions. For court venue purposes, where a company does regular business does not include its product sales in big-box…more

Pennsylvania, Retail, Venue

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Jeremy Zacharias, RPLU

Legal Updates for Lawyers’ Professional Liability - Case Law Update

In Law Office of Drew J. Bauman v. Hanover Insurance Company, 2023 WL 2238552 (D.N.J. February 27, 2023), the plaintiffs maintained a professional liability insurance policy with the Hanover defendants from October 2017 to…more

Breach of Contract, Denial of Insurance Coverage, Insurance Brokers, Insurance Industry, Liability Insurance

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