.

Andrew J. Marchese

Chair, Non-Profit D&O Practice Group

AJMarchese@mdwcg.com

Portrait of Andrew J. Marchese

Andrew brings a distinct combination of litigation skills to his practice, developed during his legal career in South Florida. He represents various individuals, private and public companies, and non-profit entities in a broad range of business matters. Board Certified in Condominium and Planned Development law by The Florida Bar, Andrew has represented hundreds of condominium associations, homeowners associations, directors, officers and property managers in claims ranging from breach of fiduciary duty, breach of the declaration, real estate liens, real property document disputes, Fair Housing Act (FHA) and HUD claims, including reasonable accommodation claims by unit owners and visitors, and discrimination claims of every type. His extensive directors & officers practice has given him significant experience with all types of claims in this arena. 

Andrew's practice also consists of complex litigation with an emphasis on the defense of non-medical professionals, including attorneys, directors and officers, insurance brokers and title agents, architects and engineers, design professionals, general contractors, construction managers and subcontractors, against claims of liability, breach of contract, construction defect, design defect, delay, insurance coverage issues and licensure issues. 

Additionally, Andrew represents employers in litigation and provides them advice and counsel concerning a variety of employment-related matters. Andrew has handled the defense of employment law cases in federal and state courts and before various administrative agencies. He has defended employers in claims alleging discrimination, violation of federal and state employment-related statutes, wrongful discharge, breach of contract and related tort claims. Andrew also has experience with ADA public accommodation cases. 

In 1990, Andrew graduated from the University of Maryland (College Park) where he received his Bachelor of Arts Degree in Criminal Justice/Pre-Law. He then went onto obtain his juris doctor from The Thomas M. Cooley School of Law (cum laude), graduating in the top ten percent of his class.

    • Cooley Law School (J.D., cum laude, 1995)
    • University of Maryland (B.A., 1990)
    • Florida, 1995
    • U.S. District Court Southern District of Florida, 1996
    • U.S. District Court Middle District of Florida, 1998
    • The Florida Bar, Board Certified in Condominium and Planned Development
    • Aviation Insurance Association
    • Dade County Bar Association
    • The Association of Trial Lawyers of America
    • Community Associations - Exposures Close to Home, Marshall Dennehey Client Presentation, September, 2020
    • Contemporary Litigation Issues for the Claims Professional, Marshall Dennehey Client Presentation, September 21, 2015
    • “Article III Standing Does Not Come from Violation of Statute Alone,” Defense Digest, Vol. 28, No. 12, December 2022
    • "Florida Appeal Court Finds Assignment of Legal Malpractice Claim Permissible in Commercial Setting," PLUS Magazine, October 2006

Thought Leadership

View all

Legal Updates for Real Estate E&O Liability

The Listing Agreement Controls in Real Estate Commission Dispute Between Broker and Seller

May 7, 2026

Carmona Realty Group, LLC, a licensed real estate broker, pursued a commission after procuring multiple offers at or above the listing price for a Miami property, but the seller repeatedly rejected or ignored those offers while attempting to increase the price outside the written listing agreement. The parties had executed an exclusive right of sale listing agreement setting the price at $499,500 and providing for a 5% commission. Although the seller later signed separate “instructions to agents” imposing additional requirements such as appraisal contingencies, inspection attachments, and deposit conditions, those instructions were never signed by the broker and were not referenced in the listing agreement. After at least seven offers were presented, including full-price or above-list offers, the seller declined to proceed, citing varying reasons including furniture inclusion, shutters, and financing terms, while also informally seeking a higher price. The Third District Court of Appeal reversed the trial court’s ruling in favor of the seller, holding that the “instructions to agents” were not incorporated into the listing agreement and could not be used to defeat the broker’s entitlement to a commission. Applying Florida contract principles and the statute of frauds, the court emphasized that modifications to a listing agreement must be in writing and signed by both parties, and that mere contemporaneous documents lacking mutual assent and cross-reference do not become part of the contract. The court further found that the broker satisfied its obligation by producing ready, willing, and able buyers on the agreed terms, and that the seller’s later-asserted justifications did not negate the broker’s right to compensation. This decision underscores the importance of real estate brokers and professionals ensuring that all material terms and conditions are clearly incorporated into the listing agreement itself, as well as documenting all communications when sellers reject conforming offers for reasons outside the contract.

Legal Updates for Insurance Agents & Brokers

Legal Update for Insurance Agents & Brokers – CASE LAW UPDATE

August 1, 2025

Federal Court Applies Blumberg to Distinguish Accrual of Negligence and Fiduciary Claims in Insurance Agent Dispute Romero v. Kinsale Ins. Co., No. 25-20084-CIV, 2025 WL 837820 (S.D. Fla. Mar. 18, 2025) In a recent decision, the U.S. District Court for the Southern District of Florida revisited the Florida Supreme Court’s 2002 ruling in Blumberg v. USAA Casualty Insurance Co., 790 So. 2d 1061 (Fla. 2002), to assess whether claims against a non-diverse insurance agent defendant were fraudulently joined. The district court distinguished between negligence and breach of fiduciary duty claims based on whether the plaintiff’s alleged damages had accrued independently of a pending coverage dispute. While the negligence claim was deemed premature and contingent on a future denial of insurance coverage, the breach of fiduciary duty claim was found to assert immediate and independent harm. As a result, the court concluded that the joinder was not fraudulent and granted the motion to remand the case to state court. The dispute in Blumberg concerned stolen sports cards, and the insured sued his agent for negligence in procuring a policy that did not cover the loss of the cards. In 2002, the court reasoned that, because the insured alleged his agent caused him no damages other than the amount at stake in his coverage dispute, he could only incur damages, if ever, at the conclusion of the coverage dispute—or once his right to sue the insurer expired.  Since 2002, Florida courts have held that when an insured alleges that an agent caused damages that are independent of a coverage dispute, the claim against the agent accrues immediately, even if the ultimate and full extent of the damages remains uncertain. In Romero v. Kinsale, the plaintiff sued for breach of fiduciary duty and negligence after allegedly tripping on an uneven sidewalk at a construction site. District Judge Altonaga analyzed the issue of whether a resident (non-diverse) defendant was fraudulently joined. If fraudulently joined, the federal court would dismiss the non-diverse defendant and deny any motion to remand the matter back to state court.  Joinder is fraudulent where there is no possibility that the plaintiff can prove a cause of action against the non-diverse defendant. In Judge Altonaga’s analysis, she held that the plaintiff’s negligence claim—which entirely hinged on the plaintiff’s assertion that she might lose a coverage dispute—had not yet accrued. Therefore, the negligence claim, on its own, could not stand.  However, in analyzing the breach of fiduciary duty allegations, Judge Altonaga ruled that, since the breach of fiduciary duty claim contained no conditional language tying liability to denial of coverage, the allegation is that there was immediate harm at the time the policy was procured. This allegation of immediate harm, independent of coverage, meant the breach of fiduciary claim was a potentially viable claim with ripe damages that had accrued.  Thus, Judge Altonaga held that there was no fraudulent joinder because there was at least a possibility that a Florida court could find an independent cause of action against the resident defendant. The judge ultimately granted the motion to remand the case back to state court.    Legal Update for Insurance Agents & Brokers- August 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

Result

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

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

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

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

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA.