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Dennis T. Smith

Member of the Firm

Background

Dennis Smith, a founding member of the firm, Chairs the firm’s policyholder practice.  Pashman Stein has obtained coverage for its clients in environmental, toxic tort, class action and D&O liability cases, as well as in a number of other areas, including the related area of entitlement to indemnification for officers, directors and employees pursuant to Corporate By-laws, Articles of Incorporation and Business Corporation Acts.  Mr. Smith also has extensive experience in commercial, estate, personal injury, insurance defense and workers’ compensation defense.  He has tried cases in both state and federal courts.

Representative Matters

  • Represents governmental agency in connection with the recovery of over $2 million dollars from an excess workers’ compensation carrier of benefits paid above a self-insured retention. The issue is whether the excess carrier, in the absence of an underlying defense obligation, is obligated to pay without having advised the insured of its policy defenses by way of a coverage position letter. The claim, based on estoppel and waiver, presents a novel issue of whether, in these circumstances, an excess carrier may avoid coverage without issuing its coverage position.
  • Represented plaintiff, Robert Sipko, in an oppressed minority shareholder suit concerning issues of oppression in a closely held corporation. This case resulted in the New Jersey Supreme Court issuing a precedential decision clarifying the State’s oppressed shareholders jurisprudence and provided needed guidance on the question of the proofs necessary to trigger the availability of remedies under the oppressed shareholder statute. The case is presently on remand.
  • Represented plaintiffs in the underlying construction case against design and building professionals seeking $5MM in damages for structural failure. As an interested party, we successfully opposed the declaratory judgment action by the masonry contractor in the underlying case seeking to disclaim coverage. Case required an in depth analysis of the “Your Work” exclusions and doctrine of “reasonable expectations” with regard to claims for property and loss of use damages under standard CGL policies. We obtained summary judgment as the court held that plaintiff’s damages were covered under the masonry contractor’s policy. The trial court and Appellate Division rejected plaintiff’s application for fees under court rule because plaintiff did not succeed in obtaining verdict against defendant contractor in underlying matter. In a case of first impression, the New Jersey Supreme Court reversed and awarded our client substantial fees as a successful claimant in the coverage action.
  • Represented life partner of decedent on issue of whether it was the decedent’s probable intent to devise real property to his life partner free of mortgage debt although the issue was not addressed in decedent’s will. The case was decided against the life partner at trial and on appeal. In a published opinion, the New Jersey Supreme Court granted certification and held that the decedent’s probable intent was to transfer the property to the life partner free of debt and thus estate was required to pay off significant mortgage amount.

Opinions

New Jersey Supreme Court

  • Kiken v. Kiken, 149 N.J. 441 (1997)(involving issue of whether decedent’s estate was obligated to pay for son’s ivy league education as provided in Judgment of Divorce.)
  • IMO Theodore M. Payne, 186 N.J. 324 (2006)(involving doctrine of probable intent as applied to interpretation of decedent’s will.)
  • Vergopia v. Shaker, 383 N.J. Super. 256 (App. Div. 2006) aff’d., 191 N.J. 217 (2007) (involving issue of whether attorney was entitled to indemnification from corporation client for costs of his defense against a wrongful discharge lawsuit.)
  • Myron Corporation v. Atlantic Mutual Insurance Company, 407 N.J. Super. 302 (App. Div.) aff’d., 203 N.J. 537 (2010 )(involving issue of whether Myron as the prevailing party in a New Jersey coverage litigation was entitled to extraterritorial counsel fees incurred in Illinois pursuant to New Jersey R. 4:42-9(a)(6).)
  • Sipko v. Koger, Inc., 214 N.J. 364 (2013) (holding that minority shareholder who is victim of illegal/fraudulent actions can seek statutory remedies in absence of finding of oppression.)
  • Occhifinto v. Olivo, 221 N.J. 443 (2015) (involving issue of whether third-party beneficiary under liability policy was entitled to recover its attorney fees as a successful claimant under N.J. Ct. R. 4:42 – 9(a)(6)

Other Significant Cases

  • LCG Investments v. Merchants Mutual Ins. Co., 2006 N.J. Super. Unpub. LEXIS 2976 (App. Div. June 2, 2006) (first New Jersey decision to address scope of debris removal provision in comprehensive Business Owner’s Policy.)
  • Myron Corporation v. Atlantic Mutual/Insurance Company, 2007 WL432624 (N.J. Super. Law Div. Jan. 22, 2007) (first New Jersey decision to address duty to defend Telephone Consumer Protection Act class action claims.)
  • Bridge Metal Industries v. Travelers Indemnity Company, 812 F. Supp. 2d 527 (S.D.N.Y. 2011) (involving coverage for Lanham Act and Unfair Competition claims in both federal and state courts.)
  • Mortgage, Inc. v. Ward & Olivio, LLP, 439 N.J. Super 202 (App. Div. 2014) (addressed issue of first impression as to whether limited liability partnership that fails to maintain malpractice insurance as required by court rule is converted into a general partnership in which all partners are jointly and severally liable for the malpractice of one partner.)
  • Parker v. Poole, 440 N.J. Super. 7 (App. Div. 2015) (addressing evidentiary issue of first impression concerning admissibility of speculative testimony by party-opponent.)

Media

  • Quoted in Law360 article “NJ High Court Could Leave More Attorneys on the Hook for Fees,” October 23, 2015.
  • Quoted in Law360 article “NJ Ruling Could Deter Insurers from Trying to Buck Defense,” May 7, 2015.
  • Quoted in Law360 article “NJ Justices to Mull Over Coverage Question for Law Firm Partners,” March 30, 2015.
  • Quoted in Law360 article “NJ Workers’ Comp Rulings Keep Plaintiffs Out of Court,” August 15, 2012.

Teaching/Seminars

Mr. Smith has lectured on litigation-related topics for the National Business Institute and the New Jersey Institute for Continuing Legal Education, including:

  • Myron Corporation v. Atlantic Mutual Insurance Corp., 203 N.J. 537 (2010), An unwarranted and Unwise Extension of Fee-Shifting? January 2011.
  • How to Litigate Your First Civil Trial in New Jersey June 2001, June 2003
  • Keys to Effective Expert Witness Examination in New Jersey March 2002
  • Litigation Case Management for the New Jersey Paralegal September 2002
  • Trying the Automobile Injury Case in New Jersey March 2003

Judicial Clerkships/Internships

  • Hon. Arthur C. Dwyer, J.S.C. General Equity Division, Passaic County 1988-1989
  • Hon. John J. Gibbons Chief Judge, Third Circuit Court of Appeals 1987

Professional/Civic Activities

  • Member, New Jersey Bar Association
  • Member, Bergen County Bar Association
  • Past Chair, District II-A Fee Arbitration Committee

Bar/Court Admissions

  • New Jersey
  • United States District Court, District of New Jersey
  • United States Court of Appeals, Third Circuit
  • United States District Court, Southern District of New York

Education

  • B.A., Fairfield University, 1985
  • J.D., Seton Hall University School of Law, 1988