.

David J. Fagnilli

Portrait of David J. Fagnilli

David is a member of the casualty department handling matters involving products liability, trucking and transportation, automobile liability, premises liability, construction accidents, uninsured and underinsured motorist coverage and personal injury. He has represented insureds in business disputes, construction claims, complex litigation and business arbitrations. David has also handled litigation concerning defamation, contractor claims, property use disputes, and commercial and business property losses. He has extensive experience negotiating favorable settlements independently and through mediation and other forms of ADR.

Additional areas of practice include insurance coverage, contract interpretation and analysis for first- and third-party claims; appellate advocacy and post-trial practice and defense of coverage disputes and bad faith lawsuits involving commercial general liability, commercial property, commercial vehicle, umbrella, auto and homeowners’ policies; and claims for environmental damage, asbestos and other toxic torts.

David is admitted to practice in all Ohio Courts, all Federal District Courts in Ohio, the Sixth Circuit Court of Appeals and the U.S. Supreme Court. David is a life member of the Eighth District Judicial Conference. He is a member of the American, Ohio State, Cleveland Metropolitan, and Lake County Bar Associations, the Defense Research Institute, the Ohio Association of Civil Trial Attorneys, the Cleveland Association of Civil Trial Attorneys, the Claims & Litigation Management Alliance, and the Justinian Forum.

A shareholder with an AV® Preeminent™ by Martindale-Hubbell rating,  David has also been selected by his peers as an "Ohio Super Lawyer" annually since 2010, as published in Cincinnati Magazine and Northern Ohio Live Magazine. Since 2009, he has been listed in The Best Lawyers in America©.

David received his B.A. from Southern California College in 1980, and his juris doctor from Cleveland-Marshall College of Law in 1985.

    • Cleveland State University College of Law (J.D., 1986)
    • Vanguard University of Southern California (B.A., 1980)
    • Ohio, 1986
    • U.S. District Court Northern District of Ohio
    • U.S. District Court Southern District of Ohio
    • U.S. Court of Appeals 6th Circuit
    • Supreme Court of the United States
    • AV® Preeminent™ by Martindale-Hubbell®
    • The Best Lawyers in America®, Insurance Law (2009-2027)
    • Ohio Super Lawyers (2010-2020)
    • American Bar Association
    • Cleveland Association of Civil Trial Attorneys
    • Cleveland Metropolitan Bar Association
    • Defense Research Institute
    • Justinian Forum
    • Ohio Association of Civil Trial Attorneys
    • Ohio State Bar Association
    • Insurer, Adjuster and Agent and Broker Liability: A - Z, National Business Institute, August 26, 2016, presenter
    • Ten Commandments of Working with Expert Witnesses, June 13, 2013, CLM Transportation Conference, panelist
    • Anatomy of a Complex CGL Claim, Additional Insureds – Ohio Anti-Indemnity Statute, Cleveland Metropolitan Bar Association, November 2, 2012
    • Insurance Law from Basic to Advanced – Claims Handling Process, Akron Bar Association October 30, 2012
    • What Civil Court Judges Want You to Know, National Business Institute, November 4, 2011, moderator
    • Ohio Tort and Insurance Case Law Update, Akron Claims Association, April 14, 2010
    • Insurance Law in Ohio, Lorman Educational Services, March 21, 2003, co-author and presenter
    • Insurance Law in Ohio: Third Party Coverage in Ohio, National Business Institute, March 14, 1996, co-author and presenter
    • "Ohio Supreme Court Holds That General Contractor’s CGL Insurer Is Not Obligated to Defend Suit Alleging Subcontractor’s Faulty Workmanship," Legal Updates for Coverage & Bad Faith, March 2019
    • Case Law Alerts, regular contributor, 2018-present
    • Ohio Construction Insurance Law; Policyholder and Insurer Perspective on Custom Agri, Bar Journal of the Cleveland Metropolitan Bar Association, February 2013, coauthor
    • A.M. Best Ohio Digest of Insurance Law, Editor 2012-present

Results

Thought Leadership

Legal Updates for Coverage & Bad Faith

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

July 27, 2026

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Legal Updates for Coverage & Bad Faith

Ohio Supreme Court Clarifies Rule on Attorney-Client Privilege and Communications Between Insurer and Its Outside Counsel

February 27, 2026

On February 26, 2026, the Ohio Supreme Court issued an opinion in Eddy v. Farmer’s Property Cas. Ins. Co., Slip Opinion No. 2026-Ohio-626, clarifying the attorney-client privilege and work product doctrine in relationship to claims for alleged bad faith against an insurer.  In a 5-2 decision, the court held that the 2007 amendments to R.C. 2317.02(A)(2), the Ohio attorney-client privilege statute, supersede the court’s prior decision in Boone v. Vanliner Ins. Co., 2001-Ohio-27.  In Boone, the court had held that: In an action alleging bad faith denial of insurance coverage, the insured is entitled to discovery claims file materials containing attorney-client communications related to the issue of coverage that were created prior to the denial of coverage. The Boone decision allowed plaintiffs to allege bad faith, and then obtain pre-suit claims file materials that might otherwise be covered by the attorney-client or work product privilege. The court’s decision in Eddy clarifies and reestablishes the attorney-client and work product privileges for insurers. The court, relying on post-Boone revisions to R.C. 2317.02, determined that those revisions abrogated the Boone decision. The court specifically held that: [P]rivileged documents may only be disclosed upon a prima facie showing of bad faith, and then only if they “are related to the attorney’s aiding or furthering an ongoing or future commission of bad faith by the client” as determined through an in camera inspection.  Questions about work-product doctrine are controlled by Civ.R. 26(B)(4): such materials may only be disclosed upon a “showing of good cause.” Eddy at ¶ 40. This issue has been extensively litigated for the past 20 years, and the Ohio Supreme Court’s decision should bring clarity to the issue and instruction for lower courts in dealing with bad faith claims and discovery issues as they relate to an insurer’s claim file materials and communication with counsel.

Firm Highlights

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.