Eric A. Fitzgerald CPCU, CLU

Assistant Director, Professional Liability Department
Shareholder
Eric Fitzgerald is the Assistant Director of the Professional Liability Department.  He assists the Director in overseeing the Department’s 16 practice groups, which include approximately 150 attorneys throughout the firm. Eric also sits on the firm's Board of Directors where he is a Senior Vice President. 
 
Eric works with a wide variety of property/casualty lines, including: Professional and Miscellaneous E&O; D&O; EPL; Law Enforcement Liability; School Leaders’ E&O; CGL; Commercial Property, Excess and Umbrella; Specialty Lines; Boiler & Machinery; Inland Marine; Builders Risk; OCP’s and OCIP’s; Garagekeepers; Commercial Auto; and Worker’s Compensation.  He is rated AV® Preeminent™ by Martindale-Hubbell and has litigated many different coverage issues, including: construction defect; intellectual property; notice of claim, relation back and prior/pending exclusions in claims made policies; environmental; civil rights; product defect; liquor liability; additional insureds; policy reformation and rescission cases.   He exclusively defends insurance companies in State and Federal courts in Pennsylvania and New York.  Eric has also served as both a Mediator and an Arbitrator in insurance coverage disputes.
 
Eric obtained his Chartered Property Casualty Underwriter (CPCU) designation in 1999 . He has served as a National Governor and member of the Executive Committee of the CPCU Society and as a member of its Nominating Committee. He is currently a member of the CPCU Champions Committee. He also served as a member of the American Institute for CPCU Advisory Council where he assisted in the drafting of several of the CPCU textbooks.  He is also a member of the Philadelphia and Northeastern Pennsylvania Chapters of the CPCU Society.  He began his National CPCU Service as the Northeast Regional New Designee Representative and as the Editor of the Excess, Surplus and Specialty Lines Section Newsletter, The Specialist.  He previously served as second vice president, programs chair and publicity chair for the CPCU Society Philadelphia Chapter and on the Board of Directors of the Rochester, New York, Chapter.  He is also a CPCU course instructor.  Eric also holds the Chartered Life Underwriter ("CLU") and Associate in Reinsurance ("ARe") designations.
 
In addition to his CPCU activities, Eric is a Certified Litigation Management Professional with the Claims and Litigation Management Alliance (CLM) and he is an instructor in the CLM Claims College.  He is also a member of the Professional Liability Underwriting Society (PLUS), the Property Legal Research Bureau (PRLB) and the American College of Coverage and Extracontractual Counsel (ACCEC).
 
Prior to joining Marshall Dennehey, Eric practiced in Rochester, New York, where he provided statewide New York coverage counsel for several large national insurers. He began his career in 1993 as a judicial clerk for the New York State Supreme Court, Appellate Division, Fourth Department, where he participated in the drafting of many significant coverage decisions in New York State.
 
He is a former Chairman of the Board of Directors for "Kids Innovating Stage and Sound", a non-profit children's theater group in Wilkes-Barre, Pennsylvania.  During his term, he oversaw the relocation of the group and raised funds for the construction of a new theater.   He has also served as Secretary of the Board of Directors for the Monroe County, New York, Bar Association Foundation, and was the Chair of the Monroe County Bar Association Young Lawyers Section.   
 
Significant Representative Matters

Trial verdict for insurer in a matter regarding the reformation of a complex insurance program for a holding company with over 200 subsidiaries. Case involved testimony from senior officers from the insured corporation and the insurer and broker. Policy was reformed on behalf of the insurer to add a subsidiary and, therefore, subject to an exclusion for negligent operation of vehicle in the course of employee's duties for the employer.

Trial verdict for insurer on "assault and battery" exclusion. Court applied exclusion and found no duty to defend or indemnify after denying summary judgment earlier in the case. Decision upheld on appeal to the Pennsylvania Superior Court.

Summary judgment for insurer in a matter involving the alleged faulty construction and site selection for a multi-million dollar mining project. Court held that the insured engineer's work was not an "occurrence" and fell within the policy exclusions for professional services and work product of the insured. Court further rejected attempts by insured counsel to apply a continuous trigger theory of causation in a property damage case and held that the claim manifested prior to the inception of the policy.

Summary judgment for insurer applying "interrelated businesses" exclusion in a directors & officers' liability claim. Court held that criminal "check kiting scheme" by necessity utilized the checking accounts of an uninsured business as well as the insured business and triggered the exclusion as a matter of law.

Summary judgment for insurer on issue of whether plaintiff was a dual employee of two affiliated corporations and subject to "employers liability" exclusion. After reviewing factual testimony from company officers, Court agreed that insured company was a dual employer of the plaintiff although his W-2s and employment file were with an affiliated company.

Summary judgment for insurer enforcing insured's UIM stacking waiver. Court found that the statute requiring issuance of an "important notice" did not provide a statutory remedy for an insurer's failure to issue the notice and that the waiver was, therefore, valid despite statutory violation.

Summary judgment for insurer finding no ambiguity in blank retroactive date on claims made policy. Court applied regulation defining retroactive date to hold that a blank date equated inception date, not full prior acts.

Judgment on the pleadings for insurer on duty to indemnify real estate appraiser in "sub prime" litigation complaint. The Court held that the allegations of fraud and conspiracy were not negligent wrongful acts under the professional liability policy.

Classes/Seminars Taught

Tear it Up and Start Over – The New Generation of AFAs, CLM Annual Conference, Orlando, FL, March 2019

Coverage Issues in Pennsylvania School Claims, 2018

Best Practices for Coverage Position Letters, 2018

Coverage Issues for Defective Workmanship Claims in NY, PA and NJ, 2017

Jurisdictional Hotspots for Policy Limit Time Demands, 2016

Insurance 101 for Workers' Compensation Policies, 2016

Generally Acting Professional – Coordination of General Liability and Professional Liability Policies, 2016

Underwriters Under Fire: Best Practices for Underwriter Testimony and Production of Underwriting Files in Litigation, 2016

Coverage Position Letters in PA, NY and NJ, 2016

EPL 101, Merchants Insurance Group, April 19, 2016

Additional Insureds and Related Issues

Best Practices for Handling Split Claim Files, 2015

Professional Services Exclusions

Best Practices in Maintaining Claims Files

Coverage Issues Arising out of Faulty Workmanship Claims

Coverage Issues Arising out of Employers Liability Coverages

Coverage Issues Arising out of Municipal Professional Liability Policies

Cross-over Uninsured/Underinsured Motorists Claims in PA and NY

Negotiation Techniques

Priority of Coverage in Rental Vehicle Claims

Intentional Acts/Occurrence

Course Instructor - CPCU 6 "The Legal Environment of Insurance"

Published Works

"Have Reservations? 10 Tips For Coverage Position Letters," Litigation Management, Spring 2012

"Co-Author: Commonly Litigated Coverage Issues Involving Personal Automobile Policies," Insurance Law Handbook, New York State Bar Association, 2000 

"Infant Switch Spotlights Risk at Hospitals," National Underwriter, October 5, 1998

"Contributing Author: Procedural Issues Unique to a Product Liability Lawsuit (Supplement)," Products Liability in New York - Strategies and Practice, 1999

Contributing Author: "Strategies and Tactics in the Wake of Tort Reform (Supplement), Preparing for and Trying the Civil Lawsuit," 1999

Admissions
New York
1994
Pennsylvania
1994
U.S. District Court Eastern District of Pennsylvania
U.S. District Court Middle District of Pennsylvania
U.S. District Court Western District of Pennsylvania
U.S. District Court Western District of New York
U.S. Court of Appeals 3rd Circuit
Education
University at Buffalo School of Law, SUNY (J.D., 1993)
University of Rochester (B.A., cum laude, 1989)
Honors & awards
AV® Preeminent™ by Martindale-Hubbell®
Buffalo Moot Court Board
Litigation Management Institute, Graduate 2012 (CLMP)
Associations & memberships
CPCU Society, Philadelphia Chapter
Chartered Property Casualty Underwriters (CPCU) Society
Defense Research Institute
Northeastern Pennsylvania Chapter
Professional Liability Underwriting Society (PLUS)
Claims and Litigation Management Alliance (CLM)
Property Legal Research Bureau (PRLB)
American College of Coverage and Extracontractual Counsel (ACCEC)
Year joined
2000