Walter F. Kawalec III

Walt focuses the majority of his practice on post-trial appellate advocacy with particular emphasis in the areas of public entity liability and civil rights, insurance coverage/bad faith litigation and professional liability. He has handled several hundred appeals to date, many of which have been in representation of physicians and attorneys, in appeals connected with malpractice litigation.

In his capacity as an appellate attorney, Walt has developed extensive experience briefing and arguing cases before the Third Circuit Court of Appeals, the Supreme Courts of Pennsylvania and New Jersey, Pennsylvania's intermediate appellate courts, the Superior Court and Commonwealth Court, and New Jersey's intermediate court, the Appellate Division. As well, Walt has experience, thus far, up to the petition stage before the United States Supreme Court.

In addition to Walt's involvement in the appellate courts, he has also briefed and argued cases and motions before the Pennsylvania Board of Finance and Revenue, the Pennsylvania Courts of Common Pleas, and the New Jersey Superior Court Law Division.

Walt is a graduate of Glassboro State College and the University of Pittsburgh School of Law, where he earned his juris doctor, cum laude, in 1998. He was the recipient of the Dean's Scholarship for three years, first year moot court competition award for "Best Brief," and served as an officer in Phi Alpha Delta legal fraternity.

In 1999 Walt joined Marshall Dennehey as a member of the Appellate Group. Since that time, he has developed an proficiency in all aspects of appellate law, from legal research, brief writing and other written advocacy to oral argument, and appellate-level motion practice.

Walt's published opinions in New Jersey, Pennsylvania and the Third Circuit Court of Appeals have established and clarified important legal principles on subjects ranging from insurance coverage and remittitur, to informed consent claims in medical malpractice actions, and contributory negligence in accountant malpractice cases.

From 2002 to 2011, Walt also worked as the editor of Defense Digest—Marshall Dennehey's quarterly newsletter that updates our clients on important legal cases and issues of the day.

- University of Pittsburgh School of Law (J.D., cum laude, 1998)
- Rowan University (B.A., 1991)
- Pennsylvania, 1998
- U.S. Court of Appeals 3rd Circuit, 1999
- New Jersey, 2002
- Supreme Court of the United States, 2002
- U.S. District Court Eastern District of Pennsylvania, 2002
- U.S. District Court District of New Jersey, 2002
- U.S. Court of Appeals 4th Circuit, 2017
- “Reconsidering Reconsideration,” Defense Digest, Vol. 27, No. 5, December 2021
- “Walters v. YMCA, Putting Some Limitations on Stelluti v. Casapenn,” Defense Digest, Vol. 20, No. 4, December 2014
- "De Facto Appeals Eliminate Federal Jurisdiction," Defense Digest, Vol. 10, No. 4, 2004
- "Pennsylvania Superior Court Rejects Request To Void Stacked Coverage," Defense Digest, Vol. 10, No. 3, 2004
- "'Advertising Injury' in the Third Circuit: A Frog Switch and a Green Machine," Defense Digest, Vol. 9, No. 1, 2003
- "An Injury Is Not An 'Injury' If The Pain Is Non-Compensable," Defense Digest, Vol. 8, No. 2, 2002
- "Superior Court, S.I.R.'s and the Direct Action Statute: Contracts Rule, Penna. Bar Ass'n, Civil Litigation Newsletter," orig. published in the Defense Digest, 2002
- "Pennsylvania Appellate News," Defense Digest, Vol. 7, No. 1, 2001
- "Appellate Courts Refine Pennsylvania Settlement Law," Defense Digest, Vol. 6, No.1, 2000
- "Pennsylvania Appellate News," Defense Digest, Vol. 5, No. 4, 1999
- Obtained summary judgment on behalf of an obstetrician in a medical malpractice action. The plaintiff alleged that our client did not obtain the requisite informed consent from our client to undergo a trial of labor after having two prior cesarean section deliveries (“TOLAC x2”). The court found that the plaintiff’s lack of informed consent claim was without foundation as she had an awareness of the risks of TOLAC x2. Rather, the court found that her claim was premised on the assertion that the physician performing the TOLAC x2 failed to convert the TOLAC to a C-section quickly enough when complications arose. The court held that as matter of law our client had no obligation to discuss the risk that the doctor in the delivery room may wait too long to pivot to a C-section, which was the actual cause of the plaintiff’s alleged harm.
- Successfully defended a grant of summary judgment in the New Jersey Appellate Division that resulted in a published opinion. Our clients were the owner and manager of an apartment complex for seniors. The plaintiff resident had returned from walking her dog and alleged she received injuries entering the elevator. She had allowed the dog to enter first, when the doors began to close. She alleged injuries occurring when the right door struck her arm, and when she used her left arm and left side of her body to slow the doors from closing while she leapt into the elevator.
- She sued our clients and the company hired to maintain the elevator, but was unable to establish any proof of negligence. The trial judge dismissed the case, declining to apply the doctrine of res ipsa loquitur, in part, because the plaintiff could not establish the third element of the doctrine: that the injury did not result from the plaintiff’s own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published opinion, concluded that the third element is a well-established law in New Jersey and only the New Jersey Supreme Court could eliminate it, and that court has shown no inclination to do so. Because the plaintiff could not demonstrate the third prong, res ipsa was not applicable and the failure of the plaintiff to establish negligence resulted in summary judgment in the defendants’ favor.
- Successfully argued to the New Jersey Supreme Court that the grant of a new trial by the Appellate Division in medical malpractice action was erroneous, as the plaintiff failed to object to the matter at trial and could not establish plain error.
- Successfully argued to the US District Court and Third Circuit Court of Appeals that a municipalities decision close a property to the public during the removal of a significant amount of buried military ordinance did not constitute a constitutional violation or takings.
- Successfully argued that the represented municipality enacted a valid regulatory ordinance and not an improper licensing ordinance notwithstanding the use of the term “license” in the ordinance.
- Successfully briefed arbitration argument and achieved a defense result in multi-million dollar binding arbitration in construction defect case.
- Successfully persuaded the Appellate Division to reinstate multi-million dollar complaint dismissed in the Law Division.
- Successfully argued for the reversal of a dismissal of the insurance carrier's fraud complaint, which clarified the operation of the entire controversy doctrine in New Jersey.
- Successfully argued that a minor deviation on the form for rejecting the stacked limits for UIM coverage was not enough to vitiate the policy-holder's rejection of stacked coverage.
- Successfully argued that a trial court committed reversible error when, after the Appellate Division found the verdict to be excessive and remanded the case for remittitur, remitted the verdict by one cent.
- Successfully argued that parties who were found guilty of criminal tax evasion were estopped from denying their contributory negligence in a civil suit against their accountant, stemming from the preparation of those income tax returns.
- Successfully argued that the term "advertising injury" in policy was limited to claims arising out of the misappropriation of advertising ideas or style of doing business.
- Successfully argued that a plaintiff who was successful against a carrier's policyholder has no claim against the carrier for the amount of the self-insured retention of the policyholder.
- T.L. v. Goldberg, N.J., A-11-18 (N.J. 2019)
- Cona v. Tp. of Wash., 456 N.J. Super. 197, 201 (N.J. App. Div. 2018)
- Estate of Brust v. ACF Industries, LLC, 443 N.J. Super. 103 (N.J. App. Div. 2015)
- Bermudez v. Kessler Institute for Rehabilitation , 439 N.J. Super. 45 (N.J. App. Div. 2015)
- Nat'l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57 (3d Cir. 2013)
- Manahawkin Convalescent v. O'Neill, 217 N.J. 99 (N.J. 2014)
- EEOC v. Geo Group, Inc., 616 F.3d 265 (3rd Cir. 2010)
- Biber Partnership, P.C. v. Diamond Hill Joint Venture, LLC, 404 N.J. Super. 96 (App. Div. 2008)
- Allstate New Jersey Ins. Co. v. Cherry Hill Pain & Rehab. Institute, 389 N.J. Super. 130 (App.Div 2006)
- Marran v. Marran, 376 F.3d 143 (3d Cir. 2004)
- Vosk v. Encompass Ins. Co., 851 A.2d 162 (Pa. Super. 2004)
- Columbia Med. Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184 (Pa. Super. 2003)
- Tomaino v. Burman, 364 N.J. Super. 224 (App. Div. 2003)
- Green Machine v. Zurich-American Ins. Co., 313 F.3d 837 (3d Cir. 2002)
- Hohns v. Gain, 806 A.2d 16 (Pa. Super. 2002)
- Kleban v. National Union Fire Insurance Co., 771 A.2d 39 (Pa. Super. 2001)
- Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000)

Results

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Successfully Overturned $1.8 Million Judgment on Appeal in New Jersey

We successfully overturned a $1.8 million judgment on appeal in a case that involved the Laidlow exclusion in a workers’ compensation/employers liability policy. The decedent succumbed to heat exhaustion while at work, and the plaintiff alleged the death was due to working conditions the employer knew were substantially certain to lead to injury. Our client, the insurer, offered to defend the employer, but only to the extent of obtaining dismissal of the workers’ compensation claim, which was filed in the wrong forum. The insured rejected the offer, and suit for the injury and coverage claims commenced. At summary judgment, the trial court refused to apply the policy’s clear and prominent Laidlow exclusion barring all coverage for claims in the Superior Court whether alleged as negligent or intentional. The trial court entered judgment in the amount of the arbitration award and awarded defense costs for the Laidlow suit, costs of the declaratory judgment action and interest. The matter went up on appeal. After briefing, but before argument, the New Jersey Supreme Court released the Rodriguez decision, which validated our client’s position on application of the Laidlow exclusion and went even further to hold that the employer’s liability carrier has no obligation to provide a defense for the common law negligence claims filed in the Superior Court. The trial court refused to apply the principles enunciated by the appellate division in the Rodriguez decision and refused to apply the reasoning of a second unpublished appellate court decision directly on point. The trial court simply ignored the cases, reasoning they were unpublished. Prior to oral argument in our matter, the Rodriguez decision was published, and the plaintiffs abandoned the case, settling for nuisance value.

Favorable Decision Obtained from the Court of Appeals for the Third Circuit

We received a favorable decision from the Court of Appeals for the Third Circuit in a First Amendment case. The circuit court affirmed the District of New Jersey’s denial of a preliminary injunction in which the plaintiff claimed that federal and local officials violated her First Amendment rights through censorship and retaliation after she posted comments on Facebook. In a published decision, the Third Circuit agreed with our arguments that the plaintiff lacked standing since she could not demonstrate a substantial risk of future harm specific to our client, the former chief of police of North Hanover, NJ, as well as the other co-defendants.

Thought Leadership

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Defense Digest

Reconsidering Reconsideration

December 1, 2021

Key Points: The standards applicable to reconsideration vary depending on whether it is a motion from an interlocutory order or a final order. Reconsideration of final orders is a much harder standard, whereas reconsideration of interlocutory orders only requires consideration of the court’s “sound discretion” and the “interest of justice.” Parties who want to seek interlocutory appeal after requesting reconsideration should take special care to file a timely motion for reconsideration so as not to miss the time limit for petition for interlocutory appeal. Let us take a moment to reconsider reconsideration. In a recent case before the New Jersey Appellate Division, Lawson v. Dewar, 256 A.3d 388 (N.J. Super. App. Div. 2021), the court took the opportunity to clarify the different standards that apply to reconsideration. In Lawson, the plaintiff filed suit against a municipality and a number of police officers, alleging the officers used excessive force when arresting him. After a case management conference, the plaintiff moved for an additional extension of discovery, the right to take certain depositions, reconsideration of an order barring a witness from testifying after the witness failed to appear for a subpoenaed deposition, leave to file an amended complaint, and for the defendant to turn over all use-of-force reports. On May 14, 2020, the court denied most of the relief sought, and the plaintiff filed a motion for reconsideration. While the reconsideration motion was pending, the venue of the case was changed from Somerset to Middlesex County. The parties argued the reconsideration motion, and the Middlesex County judge denied it. The plaintiff filed a petition for leave to appeal, which the Appellate Division granted. On appeal, the Appellate Division first set out the legal principles that the Middlesex County judge invoked, including the coordinate-jurisdiction rule, which cautions against reversing the decisions of coequal members of the judiciary, and the law-of-the-case doctrine, that cautions against reconsidering decisions that have already been determined in the case. It also noted that the Middlesex County judge found that the reconsideration motion presented no new facts; that the plaintiff failed to show that the Somerset County judge acted in an arbitrary, capricious or unreasonable manner; that the initial decision was not based on a palpably incorrect or irrational basis; and that the previous judge did not fail to appreciate the significance of probative, competent evidence. The Appellate Division then took the opportunity to clarify the rules that apply to the two general species of reconsideration: reconsideration of an interlocutory order and reconsideration of a final order or judgment. The New Jersey Rules of Court and case law treat each differently, but they are often confused. The court noted that the principles the Middlesex County judge discussed apply to a motion for reconsideration from a final order. In that situation, Rule 4:49-2 applies, and a party must file within 20 days. Further, the standard that the Middlesex Court described—usually credited to the case of Cummings v. Bahr, 685 A.2d 60 (N.J. Super. App. Div. 1996)—applies. In motions for reconsideration after a final order, a party must demonstrate that the judge who issued the order sought to be reconsidered decided it in an arbitrary, capricious or unreasonable manner; that the decision was based on a palpably incorrect or irrational basis; or that the judge failed to appreciate the significance of probative, competent evidence. However, on motions for reconsideration of interlocutory orders, by contrast, the same standard does not apply. Rule 4:42-2 governs reconsideration of interlocutory orders and provides a far more liberal approach. Until a final order is issued, the “interest of justice” and the judge’s “sound discretion” guide reconsideration of an interlocutory order. Moreover, there is no time limit to reconsider interlocutory orders. Additionally, the Appellate Division restated that neither the coordinate-jurisdiction rule nor law-of-the-case doctrine apply to interlocutory reconsideration motions and should correct errors made by other judges when justice requires. The Lawson court, however, did not address an important consideration regarding reconsideration. While there is no time limit to petition for reconsideration of an interlocutory order, if a party wants to seek an immediate appeal of an interlocutory order, a 20-day time limit applies. A motion for reconsideration tolls that time limit, but only if the reconsideration motion is filed within 20 days. Therefore, while there is no time limit for filing a reconsideration motion on an interlocutory order, a party wishing to file a motion for interlocutory appeal after filing for reconsideration must file the reconsideration motion within 20 days or they may be out of time to seek interlocutory appeal. *Walt is a shareholder in our Mount Laurel, New Jersey, office and is a member of our Appellate Advocacy and Post-Trial Practice Group. He can be reached at 856.414.6024 or wfkawalec@mdwcg.com. Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.