David J. Fagnilli, Construction Attorney in Cleveland, Ohio

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; 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.

Honors & Awards

•AV Preeminent by Martindale-Hubbell
•The Best Lawyers in America, Insurance Law (2009-2026)
•Ohio Super Lawyers (2010-2020)

Classes/Seminars Taught

•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

Published Works

•'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

Summary Judgment for Insurance Broker and Two Lloyds Syndicates

We obtained a ruling granting summary judgment in favor of an insurance broker and two Lloyds syndicates in a case pending in the United States District Court for the Northern District of Ohio. The case involved a claim arising from a fall from a tree stand at a hunting camp. The plaintiff suffered spinal fractures when he fell out of the tree stand. He obtained judgment against the owner of the hunting outfitter business and then sought to recover under two policies of insurance issued to the business and a hunting club operated by the same individual. There was a stipulated judgment of $2 million, and a supplemental complaint was brought where the only issue was coverage under two $1 million policies. Accepting Marshall Dennehey’s arguments, the court granted summary judgment in favor of all defendants on the grounds that the broker had no obligations under the policies and that the policies were not written to insure commercial hunting activities or the premises where the accident occurred.

Thought Leadership

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.

Case Law Alerts

Ohio Appeals Court Affirms Class Certification in Auto Insurance Total Loss Valuation Dispute; Ohio Supreme Court Review Pending

October 1, 2025

The plaintiffs filed a class action lawsuit in the Cuyahoga County Common Pleas Court, alleging that an insurer’s use of projected sold adjustments (PSA) in calculating the actual cash value (ACV) of vehicles when settling total loss claims was arbitrary and contrary to appraisal standards and methodologies, and not based in fact. The plaintiffs filed for class certification, and the insurer opposed it. The trial court granted class certification, and the insurer appealed. The insurer argued that the trial court erred in finding that common questions predominated for the class, even though the plaintiffs cannot establish liability, standing or damages without an individualized inquiry into the actual cash value of each class member’s vehicle. On appeal, the Ohio Eighth District Court of Appeals affirmed the trial court’s decision certifying the class. The insurer has filed an appeal to the Ohio Supreme Court. The Ohio Supreme Court has not decided whether to accept jurisdiction and hear the appeal. There has been no decision on the merits of the plaintiffs’ claims. The only decision made by the trial court was the certification of the class, which was a final appealable order and appealed by the insurer. Even if class certification is affirmed by the Ohio Supreme Court, or jurisdiction is declined, a decision on the merits of the plaintiffs’ claims remains to be determined. Case Law Alerts, 4th Quarter, October 2025 is prepared by Marshall Dennehey to provide information on recent 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. Copyright 2025 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

News

98 Marshall Dennehey Attorneys Recognized in the 2026 Editions of The Best Lawyers in America and the Best Lawyers: Ones to Watch in America

August 20, 2025