Frequently Cited Ohio Statues General Considerations in Insurance Claims Management  Clarification of Facts and Legal Duties Uninsured Motorist Coverage Statutory Subrogation Rights Liability and Damages Considerations Insurance Fraud

Significant Ohio Court Decisions Supreme Court Decisions Insurance Coverage Decisions UM/UIM Decisions Employment Decisions Premises Liability Decisions Governmental Immunity Other Significant Decisions

Significant Ohio Court Decisions Appellate Court Decisions Insurance Coverage Decisions UM/UIM Decisions Employment Decisions Premises Liability Decisions Governmental Immunity Other Significant Decisions

Signification Cases Pending Before the Ohio Supreme Court

 

FREQUENTLY CITED OHIO STATUTES

General Considerations in Insurance Claims Management

Ohio Administrative Code § 3901-1-54
Unfair Claims Practices
This provision is not a statute but is part of the state regulations governing insurers. It governs unfair settlement practices in the handling of property and casualty claims. Numerous minimum standards of conduct for claims representatives are set forth. It was substantially modified in November 2004.
Although the code expressly provides violations of the code may result in disciplinary action being taken by the Department of Insurance, violations do not lead to civil liability, even on first-party claims.
 

R.C. § 2111.18
Settlement of Minor’s Claims
All settlements of personal injury claims of minors must be approved by the probate court of the county where the minor resides.
If the net amount of the settlement proceeds to the minor exceeds $10,000.00, a guardianship must be established until the minor turns 18 or the balance of funds no longer exceeds $10,000.00.
 

R.C. § 3737.16
Release of, or Request for, Information Relating to Fire Loss by Insurance Company
Civil authorities investigating property fire losses (including the fire marshal, a fire department chief, local law enforcement, or the county prosecutor) may request an insurance company investigating a property fire loss to release any information in its possession concerning the loss.
 

R.C. § 4505.11
Salvage Titles
If it is economically impractical to repair a vehicle and the insurer has paid the owner an agreed sum for the purchase of the vehicle, the insurer shall obtain the title and within 30 days obtain a salvage title.
If the owner retains possession of the vehicle, the insurer cannot pay the owner to settle the claim until the owner first obtains a salvage title.
 

R.C. § 4509.53(D)
Motor Vehicle Insurance Policy Applications
The written application of insurance is part of a motor vehicle liability policy.
 
Clarification of Facts and Legal Duties
 

R.C. § 2317.48
Action for Discovery
When information and facts surrounding a case are difficult to obtain, a person claiming to have a cause of action, or a person against whom a cause of action has been filed, may bring an action for discovery. A discovery action allows such party to explore the strengths of the complaint or defense without subjecting the party to the potential penalties associated with frivolous lawsuits.
 

R.C. §§ 2721.01 et. seq.
Declaratory Judgment Actions
This chapter allows parties to file suit to have the court determine the validity of a contract and/or the rights of the parties under the contract. This is the most effective tool for resolving disputes on the availability or amount of insurance coverage available.
Effective September 24, 1999, a plaintiff who is not an insured under a policy cannot bring a declaratory judgment action against a third party’s insurer to

determine if coverage is available for a claim until or unless a final judgment has been placed of record awarding the plaintiff damages against the insured.
R.C. § 4123.01(A)(1)(c)
“Employee” Under Construction Contract
The statute sets out specific factors to determine whether a person is an “employee” under a construction contract. 
 

Uninsured Motorist Coverage
 

R.C. § 3937.18
UM/UIM Coverage
(A) Effective October 31, 2001, an insurer no longer has a duty to offer UM/UIM coverage to its insured with the sale of a policy. As a result, there will no longer be any requirement that a rejection or reduction in coverage be in writing.
(A) UIM coverage is not excess coverage.
(G) Insurers may preclude both inter-family and intra-family stacking in their policies.
(H) On wrongful death claims, any claim for a single death is subject to the per person limit on coverage.
(H) An insured has a three-year statute of limitations to assert a UM/UIM claim, assuming they did not destroy the insurer’s right of subrogation.
(K) A vehicle available for the regular use of the insured, a family member, or a fellow household member can be deemed an uninsured vehicle.
(L) These requirements only apply to policies meeting the financial responsibility requirements or to umbrella policies.

 
R.C. § 3937.44
Per Person Limits
For both liability and UM/UIM coverages, only the per person limit is available for recovery for each person suffering a bodily injury or for each decedent.
 

Statutory Subrogation Rights
 

R.C. § 2744.05
Immunity of Political Subdivisions to Subrogation Claims
Political subdivisions are immune to any subrogation claim brought by an insurer.
 

R.C. § 3937.18(E)
UM/UIM Claims
In the event of payment to an insured for an uninsured/underinsured motorist claim, the insurer making such payment is entitled to the proceeds of any settlement or judgment resulting from the exercise of the insured’s rights against a legally liable party. This right is limited by relevant insolvency proceedings.
 

R.C. § 3937.21
Subrogation
If an insurance company pays to, or on behalf of, its insured any amount later determined to be due from another insurer, it shall be subrogated to all rights of the insured against such insurer.
 

R.C. § 4123.93
Workers’ Compensation Subrogation Rights
This statute became effective April 9, 2003, and therefore applies only to injuries occurring on or after that date. It restores subrogation rights of the Ohio Bureau of Workers’ Compensation and self-insured employers. For claims where the injury occurred prior to April 9, 2003, there is no right of subrogation.
Employees now must notify the lienholder if there is a third-party who is responsible for their injuries so that there is a reasonable opportunity to assert their subrogation rights. Responsible parties include UM/UIM insurers.
If an employee is not made whole, then the statute prescribes a formula for pro-rata distribution of any recovery between the employee and lienholder.
If there is the potential for future payments by the lienholder, a portion of the recovery is to be put in an interest-bearing trust account to protect any future lien.
 
Liability and Damages Considerations
 

R.C. § 1533.181
Immunity – Recreational User Claims
The statute provides where a premises owner may be immune from claims by a recreational user of the premises.
 

R.C. §§ 2125.01 et. seq.
Wrongful Death Actions
A wrongful death action can only be brought by the executor or administrator of the decedent’s estate.
The decedent’s surviving spouse, parents, and children are rebuttably presumed to have been damaged by the death.
All other family members must prove their entitlement to damages.
 

R.C. § 2307.22
Allocation of Damages
This statute only applies to claims where the injury occurred on or after April 8, 2003. If there are multiple defendants at fault, any defendant who is more than fifty percent at fault is subject to joint and several liability for the plaintiff’s economic damages. All other at-fault defendants are liable only to the proportionate extent of their liability. All at-fault defendants are only proportionally liable for non-economic damages.
If there are multiple defendants at fault, and no one defendant is more than fifty percent at fault, then the at-fault defendants are liable only to the proportionate extent of their liability for both economic and non-economic damages. The only exception exists for intentional tortfeasors, who are still subject to joint and several liability for economic damages.
 

R.C. § 2307.25
Right of Contribution
This statute only applies to claims where the injury occurred on or after April 8, 2003. A right of contribution will exist only if two or more tortfeasors are subject to joint and several liability.
 

R.C. § 2307.28
Set-offs for Damages
This statute only applies to claims where the injury occurred on or after April 8, 2003. A non-settling defendant is entitled to a set-off from any award of damages from what a plaintiff has already recovered from any settling party. This right exists even if the settling party is not found to be liable. This overrules Fildelholtz v. Peller, (1998), 81 Ohio St. 3d 197, which required a finding the settling party was liable before a set-off could be imposed.
 
R.C. § 2307.32
Enforcement of Contribution
This statute only applies to claims where the injury occurred prior to April 8, 2003. If the injury occurred on or after that date, R.C. § 2307.25 is applicable instead.
A party has one year from the date of judgment against it to seek contribution from joint tortfeasors.
If the party settles a claim without a judgment, that party has one year from the date of settlement in which to seek contribution.
A party who enters into a good faith settlement with a plaintiff or claimant for only a portion of the plaintiff’s damages is immune to claims for contribution from other tortfeasors. The release of claims bars any contribution claims of joint tortfeasors made either before or after the date of settlement.
 

R.C. § 2307.711
Comparative Fault in Product Liability Actions
Assumption of risk is a defense in product liability claims. Depending upon the nature of the assumption of risk, it can be an absolute bar to a plaintiff’s recovery, without any comparative fault analysis, or serves as a proportionate basis for reducing damages and liability. This statute took effect in April 2005.
 

R.C. § 2315.18
Caps on Compensatory Damages
There are no caps on economic damages.  There are no caps on non-economic damages for “catastrophic” injuries, which are defined as “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or permanent physical functional injury that permanently prevents the injured person from being able to independently care for and perform life-sustaining activities.”  With respect to “non-catastrophic” injuries, non-economic damages are capped at the greater of $250,000.00 or three (3) times the amount of economic damages, with an absolute maximum of $350,000.00 per plaintiff or $500,000.00 per occurrence.  Thus, if an individual plaintiff incurs more than $83,333.00 in economic loss damages, the cap for non-economic damages increases from $250,000.00 to $350,000.00.
 

R.C. § 2315.19
Comparative Fault
A plaintiff’s recovery is reduced in proportion to their percentage of comparative fault. If a plaintiff is 51% or more at fault, they are barred from recovery.
For injuries occurring prior to April 8, 2003, there is joint and several liability among joint tortfeasors for economic damages. For non-economic damages there is only several liability among joint tortfeasors. If the injury occurred on or after April 8, 2003, R.C. § 2307.22 is applicable instead.
 
R.C. § 2315.20
Collateral Benefits
A defendant in a tort action may introduce evidence of certain collateral benefits for the plaintiff, with stated exceptions.  One such exception is if the source of collateral benefits has a federal, contractual or statutory right of subrogation. 
 

R.C. § 2315.21
Punitive or Exemplary Damages
Effective April, 2005, a defendant now has an absolute right to bifurcate a trial on a punitive damage claim.
Punitive damages are capped at one to two times the amount of any compensatory damage award. In the case of a small employer or private individual, punitive damages are capped at two times the amount of damages or ten percent of their net worth.
 

R.C. § 2317.02
Waiver of Physician-Patient Privilege
By filing a tort action, a plaintiff waives any physician-patient privilege and the defendant is entitled to obtain the entirety of the plaintiff’s medical records.
 

R.C. § 2745.01
Workplace Substantial Certainty Torts
This statute took effect April 7, 2005.  It reflects the latest legislative effort to codify workplace substantial certainty torts.  An employee making such a claim must now either prove the employer intended to injure them or that the employer acted with the belief that injury was substantially certain to occur.  Substantial certainty is considered a deliberate intent to cause injury, disease, or death.  The statute goes on to provide that the deliberate removal of a safety guard or any misrepresentation of a toxic or hazardous substance creates a rebuttable presumption of an intent to injure. 
 

R.C. § 3109.09 and § 3109.10
Parental Liability
Liability of the parents is limited to $10,000.00 where their child willfully damages property or commits a theft offense (R.C. § 3109.09) and where their child has assaulted someone (R.C. § 3109.10).
 

R.C. § 3929.06
Insurance Money Applied to Judgment
Once a final judgment is entered in favor of a plaintiff against a person insured against such liability, after thirty (30) days the judgment creditor may file a supplemental complaint directly against the insurer to pay the amount of the unpaid judgment against the insured.
 
R.C. § 3929.25
Extent of Liability under Policy (Valued Policy Statute)
The valued policy statute applies to any structure insured against loss by fire or lightning.  In case of a total loss the insurer shall pay the amount of the policy; however, if  the policy requires actual repair or replacement of the structure, then the amount paid shall be as prescribed by the policy.
 

R.C. § 3929.86
Fire Loss Claim – Payment of Property Taxes
Where fire damage to a structure exceeds $5,000.00, the statute sets forth procedures for payment of delinquent property taxes from the insurance proceeds. 
 

R.C. § 3937.182
No Insurance for Punitive Damages
Motor vehicle policies cannot insure against punitive damages. 
 

R.C. § 4123.741
Fellow Employee Tort Immunity
An employee may not bring suit against an employer or fellow employee for injuries sustained as a result of the negligence of the employer or fellow employee.
The injury must have occurred within the scope and course of employment and be compensable under Workers’ Compensation laws.
The statutory immunity does not apply to intentional torts.
 

R.C. § 4319.18
Liquor Liability Claims
This statute limits the scope of claims against a tavern due to actions of an intoxicated person resulting in injury to a third party.
 

R.C. § 4513.263
Seatbelt Defense
This statute became effective April 2005. A defendant may now interject evidence the plaintiff failed to wear a seatbelt. This evidence is not admissible for the purposes of establishing liability but can be utilized to establish a plaintiff’s injuries would not have occurred or not have been as severe, had a seatbelt been worn. 
 
Insurance Fraud

R.C. § 2913.47(B)(1)
Presenting Fraudulent Claims
A person commits insurance fraud if, while acting with purpose to defraud or knowing the person is facilitating a fraud, the person presents or causes to be presented any written or oral statement that is part or in support of an application for insurance or a claim for a benefit under a policy of insurance, knowing the statement, in whole or in part, is false or deceptive.
 

R.C. § 2913.47(B)(2)
Fraud in the Application or Claim for Insurance
It is illegal to assist, aid, abet, solicit, procure, or conspire with another to prepare or make any written or oral statement intended to be presented to an insurer as part or in support of an application for insurance or a claim for a benefit under a policy of insurance, knowing the statement, in whole or in part, is false or deceptive.
 

R.C. § 2913.47(C)
Penalties
First Degree Misdemeanor—Fraudulent claims in an amount less than $500.00.
Fifth Degree Felony—Fraudulent claims between $500.00 and $4,999.99.
Fourth Degree Felony—Fraudulent claims between $5,000.00 and $99,999.99.
Third Degree Felony—Fraudulent claims of $100,000.00 or more.
 

R.C. § 3904.01(T) and § 3904.03
Pretext Interviews
A “pretext interview,” as defined in R.C. § 3904.01(T), is an interview whereby a person, in an attempt to obtain information about a natural person, performs one or more of the following:
(1) Pretends to be someone else;
(2) Pretends to represent another entity;
(3) Misrepresents the true purpose of the interview; and/or
(4) Refuses to identify himself/herself.
An insurer is generally prohibited from using pretext interviews to obtain information in connection with an insurance transaction; however, a pretext interview may be undertaken to obtain information for the purpose of investigating suspected criminal activity, fraud, material misrepresentation, or a material non-disclosure in connection with an insurance claim.
 
R.C. § 3904.13
Disclosure of Personal or Privileged Information by an Insurance Carrier
An insurer is prohibited from disclosing any personal or privileged information about an individual collected or received in connection with an insurance transaction, unless the disclosure is necessary for detecting or preventing criminal activity, fraud, material misrepresentation, or a material non-disclosure in connection with an insurance action.
Disclosed information must be limited to that which is reasonably necessary to detect or prevent criminal activity, fraud, material misrepresentation, or a material non-disclosure in connection with insurance transactions.
When the above conditions are met, disclosure may be made to law enforcement or other governmental agencies to protect the interest of the insurer in preventing and/or prosecuting fraudulent claims or if the insurer reasonably believes illegal activities have already been conducted by the individual.
 

R.C. § 3911.06
False Answer in Application for Insurance
An insurer is prohibited from denying recovery under a policy of insurance on the basis the applicant gave false answers in his application, unless it is proved the answer was willfully false, fraudulently made, material, and induced the company to issue the policy.
The agent or insurance company must have no prior knowledge of the application’s falsity or fraudulent nature prior to issuing the policy of insurance.
 

R.C. § 3929.87
Time for Determination in Arson Investigation
The Fire Marshall has 90 days after a fire loss in excess of $5,000.00 to determine whether the loss was caused by arson.
 

R.C. § 3937.42 and § 3937.99
Exchange of Information with Law Enforcement and Prosecuting Agencies
An insurer has a legal obligation to notify law enforcement authorities when it has reason to suspect its insured has submitted a fraudulent motor vehicle claim.
Failure to notify the proper authorities constitutes a fourth degree misdemeanor.
 

R.C. § 3999.21
Insurance Fraud Warnings
All application and claim forms issued by an insurer must contain the following warning: Any person who, with intent to defraud or knowing he is facilitating a fraud against an insurer, submits an application or files a claim containing a false or deceptive statement is guilty of insurance fraud.
Failure to include the warning is not a valid defense for insurance fraud.
 
R.C. § 3999.31
Immunity for Providing or Receiving Information Relating to Suspected Fraudulent Insurance Acts
No person is subject to liability for libel or slander by furnishing information to the Superintendent of Insurance relating to suspected fraudulent insurance acts.  This immunity extends to any such information provided to any law enforcement official and any other person involved in the detection or prevention of fraudulent insurance acts. 
 

R.C. § 3999.41
Anti-Fraud Programs
Every insurer is now required to adopt a written anti-fraud program. This program must include procedures for detecting insurance fraud.
Additionally, this program is to identify the person(s) responsible for the anti-fraud program.
Those not yet engaged in the business of insurance must submit a written plan within ninety (90) days after beginning to engage in the business of selling insurance.
 

R.C. § 3999.42
Notice to Department of Insurance of Suspected Fraud
Requires an insurer to notify the Ohio Department of Insurance whenever it suspects insurance fraud (as established in the Theft Fraud Law under R.C. § 3917.47) involving a claim of $1,000.00 or more.

SIGNIFICANT OHIO COURT DECISIONS
 

SUPREME COURT DECISIONS

Insurance Coverage Decisions
Safeco Ins. Co. v White, 122 Ohio St.3d 562, 2009-Ohio-3718
Interpretation of “Occurrence”
13-year-old Casey Hilmer was stabbed by 17-year-old Benjamin White.  Benjamin, who lived at home with his parents, was convicted on several criminal counts. The Whites were insured under four policies, including two Safeco policies. The Hilmers filed suit against Benjamin for battery, and against his parents for negligent supervision, negligent entrustment and negligent infliction of emotional distress. The other insurance companies agreed to indemnify the Whites under the terms of their policies, and sought to have Safeco pay its share when Safeco refused to defend or indemnify the Whites. The trial court held, and the appellate court affirmed, that Safeco must share the costs. Safeco argued that coverage is denied because the injury resulted from an intentional act by Benjamin, and is therefore not an “occurrence,” which is defined in the policy as an “accident.” Safeco also contended that “the policies explicitly exclude coverage for the intentional acts of an insured and the severability clause in both policies does not render the language in the exclusionary clauses ambiguous.”
The Supreme Court held “when a liability insurance policy defines an ‘occurrence’ as an ‘accident,’ a negligent act committed by an insured that is predicated on the commission of an intentional tort by another person, e.g. negligent hiring or negligent supervision, qualifies as an occurrence.” The Supreme Court also held policy exclusions precluding coverage for injuries expected or intended by an insured, or resulting from insureds intentional or illegal acts, “do not preclude coverage for the negligent actions of other insureds under the same policy that are predicated on the commission of those intentional acts.”

Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221
Appellate Procedure- Final Orders
Plaintiffs sued defendant Dunlap for negligence and loss of consortium after an automobile accident involving one of the plaintiffs and Dunlap.  As Dunlap was uninsured, plaintiffs also asserted claims for UM coverage under their own insurance policy and plaintiff’s employer’s insurance policies.  Plaintiffs requested an order determining the rights and responsibilities of the parties, and an award of damages.  The trial court determined the plaintiffs were entitled to UM coverage under plaintiff’s employer’s insurance policies.  The appellate court concluded such an order constituted a “final, appealable order” as defined in R.C. § 2505.02(B)(2), even though this decision conflicted with the rulings of other appellate courts.  On review, the Supreme Court held an order declaring an insured is entitled to coverage, but does not address a plaintiff’s claimed damages, is not a “final, appealable order,” even if the order includes a Civil Rule 54(B) certification.
 
UM/UIM Decisions
State Farm Mutual Automobile Ins. Co. v. Grace, 2009-Ohio-5934
Ability to Contractually Limit UM/UIM Coverage
The insured drivers filed a class action lawsuit against State Farm challenging the enforceability of nonduplication clauses, which were expressly provided in the insured’s policies. These clauses precluded payment under the uninsured/underinsured motorist (UM/UIM) coverage for medical expenses that were paid or payable under the medical payment (Med Pay) coverage in the same policies.
The Supreme Court answered in the affirmative, holding under Ohio R.C. § 3937.18, as amended by S.B. 97, the language “including but not limited to” permits an insurer to contractually preclude payment pursuant to UM/UIM coverage for medical expenses that have previously been paid under the Med Pay portion of the same policy. More generally, the plain language of the amended statute displays an express legislative intent to grant insurance providers the privilege of including terms and conditions in their policies that limit or exclude UM/UIM coverage.
 

Employment Decisions
Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601
Professional Negligence; Vicarious Liability
National Union lost a suit against Nationwide after its attorney, Richard Wuerth, from the law firm of Lane, Alton, fell ill and became incapacitated in the midst of the lawsuit. Following the loss, National Union filed a malpractice suit against Wuerth and Lane, Alton. Wuerth was removed from the case due to the passing of the statute of limitations, but National Union pursued a claim against Lane, Alton for vicarious liability. The Supreme Court held that a law firm cannot be directly liable for legal malpractice because it is the business entity under which attorneys practice law, not an entity through which attorneys practice law. Ultimately, a law firm does not engage in the practice of law, it is the attorneys who engage in the practice of law. In addition, the Supreme Court held a law firm cannot be vicariously liable for legal malpractice when no individual attorneys are liable. The only time a law firm can be vicariously liable for legal malpractice is "when one or more of its principals or associates are liable for legal malpractice."

Schelling v. Humphrey; Community Hospital of Williams County, 2009-Ohio-4175
Negligent Credentialing; Medical Malpractice
The plaintiff sued a doctor for medical malpractice and the hospital for negligent-credentialing following surgeries that were performed on the plaintiff’s feet.  “To prove a negligent-credentialing claim, a plaintiff injured by the negligence of a staff doctor must show that but for the lack of care in the selection or retention of the doctor, the doctor would not have been granted staff privileges and the plaintiff would not have been injured.”  The doctor filed for bankruptcy, and the suit against him was dismissed.  The hospital then claimed the case against them must also be dismissed because the doctor was not a party to the action and there was not a prior finding that the doctor was negligent in treating the plaintiff.
The Supreme Court acknowledged the plaintiff’s claim against the physician was impeded through no fault of her own.  The Court stated that usually a plaintiff must either make a doctor party to the case against the hospital, or obtain a prior determination that the “doctor committed medical malpractice and that the malpractice proximately caused the plaintiff’s injury.”  But, due to the unusual circumstances of this case, the Court held the plaintiff could pursue her “negligent-credentialing claim against the hospital by first proving [the doctor] was negligent and that his negligence was the proximate cause of [plaintiff’s] injury.”
 

Premises_Liability_Decisions
Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495
Premises Liability; Open and Obvious Doctrine; Building Code Violations
A 78-year-old man and his wife rented a room at the Holly Hill Motel.  To get to their room, the couple had to climb two steps that did not have handrails.  The man attempted to climb the steps with his wife’s assistance, and as he tried to make it up the second step, he fell and broke his hip.  He died three months later and his wife, as executor of his estate, brought suit against the motel for negligence.  Under the Building Code, the first step was 3.5 inches higher than permissible and the second step was 2.375 inches higher than permissible.  The motel argued that even if the step violated the Building Code, it was an open and obvious condition so it did not owe a duty of care.
The Supreme Court stated the open and obvious doctrine can be avoided “only with a per se finding of negligence.”  In Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, the Court “declined to extend negligence per se to administrative-rule violations.”  Since the Building Code is an administrative rule, it does not create a per se finding, so the open-and-obvious defense can be used.  Accordingly, the Supreme Court agreed, holding that in a premises liability action, the open-and-obvious doctrine applies even “when the condition that causes the injury violates the Ohio Basic Building Code.”

Torchik v. Boyce, 121 Ohio St.3d 440, 2009-Ohio-1248
Torts; Premises Liability; Fireman’s Rule
Plaintiff, a deputy sheriff, was injured walking down a set of deck steps when responding to a home burglar alarm.  Plaintiff sued the homeowner and contractor who built the deck; and both defendants filed motions for summary judgment, asserting plaintiff’s claims were barred by the fireman’s rule.  The fireman’s rule relieves a landowner’s duty (and thus, liability) to police officers and firefighters in most cases.  The trial court granted both defendants’ motions for summary judgment, and the appellate court affirmed that judgment.  On review, the Ohio Supreme Court held the fireman’s rule does not apply to an independent contractor’s negligence that causes injury to a police officer or firefighter acting within the scope of their official duties.
 
Governmental Immunity
Doe v. Marlington Local School District Bd. of Education, 122 Ohio St.3d 12, 2009-Ohio-1360
Political Subdivision Immunity; Negligent Operation of a Motor Vehicle
The court-appointed custodians of a minor sued the defendants after another child on a school bus sexually molested the minor.  The Board of Education raised the defense of political subdivision immunity under Ohio Revised Code Chapter 2744 and moved for summary judgment.  After the trial court denied the motion and the appellate court reversed, the Ohio Supreme Court affirmed the appellate court’s decision.  The Supreme Court held R.C. § 2744.02(B)(1)’s exception to political subdivision immunity for injuries sustained as a result of “the negligent operation of any motor vehicle” does not apply to a school district’s liability for negligent supervision of children’s conduct on a school bus.  In doing so, the Court construed the word “operation” in R.C. § 2744.02(B)(1) to encompass only the “controlling or directing the functioning of the motor vehicle itself as opposed to directing the occupants within the [vehicle].” Thus, the school district could successfully assert the defense of political subdivision immunity. Judge Pfeifer wrote a dissent stating that “operation” of a school bus under R.C. § 2744.02(B)(1) should include driving and “other activities relevant to the general purpose of the vehicle.”

Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250
Political Subdivision Immunity; Housing Authority
Plaintiffs sued defendants for the wrongful deaths of two children in a fire in an apartment owned by defendant Lorain Metropolitan Housing Authority (LMHA).  LMHA moved for summary judgment on the grounds it was a political subdivision entitled to sovereign immunity under R.C. Chapter 2744.  The trial court granted LMHA’s motion, but the Court of Appeals reversed the trial court’s decision.  On review, the Ohio Supreme Court held that because the operation of a metropolitan housing authority is considered a “government function,” a metropolitan housing authority is a “political subdivision” for the purpose of asserting sovereign immunity.  The Supreme Court remanded the case to the trial court to determine if one of the exceptions to sovereign immunity applied.

Sullivan v. Anderson Township, 122 Ohio St.3d 83, 2009-Ohio-1971
Appeals; Jurisdiction; Government Immunity
Plaintiff filed suit against Anderson Township and other defendants alleging that his property was damaged by the Township’s road-widening project.  Anderson Township answered by asserting political subdivision immunity, and then moved for a judgment on the pleadings.  The trial court granted the Township’s motion in part, and denied it in part.  Anderson Township then appealed to the First District Court of Appeals.  The First District held that it lacked jurisdiction to hear the appeal.  R.C. § 2744.02 states “an order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.”  But, for the court’s order to be considered final and appealable when a trial court disposes of less than all the claims against all the parties, Civ. R. 54(B) ordinarily requires the trial court to include a determination that “there is no just reason for delay.”  Since there was no determination included, the First District held that it did not have jurisdiction to hear the appeal.
The Supreme Court reversed, holding “an order that denies the benefit of an alleged immunity to a political subdivision is a final, appealable order under R.C. § 2744.02(C) in a multi claim, multi-party lawsuit, when it lacks the Civ. R. 54(B) certification that ‘there is no just reason for delay.’”
 

Other Significant Decisions
Eppley v. Tri-Valley Local School District Bd. of Education, 122 Ohio St.3d 56, 2009-Ohio-1970
Wrongful Death Actions; Saving Statute; Statute of Limitations
A passenger died in an automobile accident on November 26, 2003.  The passenger was a student in the Tri-Valley Local School district.  The administrator of the student’s estate filed a complaint on August 3, 2005 against the school for wrongful death.  The plaintiff dismissed the case without prejudice on September 15, 2005.  Less than a year later, on September 7, 2006, plaintiff refiled the complaint alleging the school was willful, wanton and reckless when it allowed the driver to remove the student from school premises without the permission of the student’s parents.  The wrongful death saving statute, R.C. § 2125.04, articulates the circumstances under which a plaintiff can extend the statute of limitations one year.  The school argued that the statute of limitations had run, and that R.C. § 2125.04 did not provide plaintiff with an additional year.
The Supreme Court held R.C. § 2125.04 is constitutional and grants a plaintiff an additional year “to refile an action dismissed without prejudice only if dismissal occurred after the original statute of limitations had run.”  The two-year statute of limitations for this case meant the deadline was November 26, 2005.  Thus, for the plaintiff to have been granted an additional year under R.C. § 2125.04, the dismissal needed to occur after that deadline.  Since the plaintiff dismissed his case before November 26, 2005, the court found the statute did not provide him with an additional year.

Estate of Stevic v. Bio-Medical Application of Ohio, Inc., 121 Ohio St.3d 488, 2009-Ohio-1525
Statute of Limitations; Medical Claims
In October of 2003, a patient was at the Richland County Kidney Dialysis Center for dialysis treatment.  While at the center, the patient fell, suffering various injuries.  The patient died in 2004. Almost two years after the accident, a complaint was filed alleging that employees of the center either dropped the patient or allowed him to fall from a device that was being used to move him into position for dialysis. Generally, an action for bodily injury must be brought within two years.  But, the defendant argued the claim was time-barred under R.C. § 2305.113(A), which states that certain “medical claims” are subject to a shorter one-year statute of limitations.  R.C. § 2305.113(E)(3) provides the definition for those “medical claims.” 
The Supreme Court held that to be a medical claim under R.C. § 2305.113(E)(3), and thus be subject to a one-year statute of limitations, two conditions must be met.  First, the claim must “arise out of the medical diagnosis, care, or treatment of any person.” In addition, it must be “asserted against one or more of the medical providers” enumerated in R.C. § 2305.113(E)(3).  The case was then remanded to the trial court to determine whether the two conditions were met.

Hodesh v. Korelitz, 123 Ohio St.3d 72, 2009-Ohio-4220
Disclosure of Mary Carter Agreements at Trial
Plaintiff Hodesh, injured from a surgical error, sued both Dr. Korelitz and Jewish Hospital of Cincinnati for medical malpractice. Prior to trial, Hodesh and the hospital entered into an agreement, which stated the hospital would pay Appellee at least $175,000.00 in damages but no more than $250,000.00.  On the first day of trial, Dr. Korelitz’s attorney requested disclosure of any agreements between Hodesh and the hospital. Hodesh turned over the agreement to the court, but the judge did not disclose the agreement until after trial.  At trial, the jury found for Mr. Hodesh and awarded him $0.00 from the hospital and $750,000.00 from Dr. Korelitz. Appellant contended the agreement was a Mary Carter agreement (an agreement between a plaintiff and one defendant allying them against another defendant at trial) and therefore should have been disclosed to Dr. Korelitz prior to trial. The court found the agreement was not a Mary Carter agreement because: 1) The contract gave the hospital a financial interest in incurring a lower verdict; 2) The hospital had to pay $175,000.00 even if the verdict against Korelitz exceeded $250,000.00; and 3) The judge saw no signs of collusion between Hodesh and the hospital. The judge, even though he hadn’t read the agreement, was aware Hodesh was afraid it was conclusive. As such, the judge was “looking out” for trial tactics evidencing collusion between Hodesh and the hospital. Therefore, it was not error to refrain from disclosing the agreement to Dr. Korelitz until after trial.

Martin v. Design Construction Services, Inc., 121 Ohio St.3d 66, 2009-Ohio-1
Diminution of Market Value of Property
Plaintiffs sued defendant home construction company over defects in a home stemming from faulty construction.  The jury returned a general verdict for plaintiffs, but also responded in an interrogatory that plaintiffs had not proven a diminution in the value of their home due to defendant’s construction defects.  The Ninth Circuit Court of Appeals held proof of the diminution in value of plaintiffs’ home was required for a claim of temporary damage to property, e.g., damage that can be repaired.  The Ohio Supreme Court reversed the appellate court, holding a property owner seeking recovery for temporary damages to non-commercial real estate can recover the reasonable costs of restoration without proving the damage caused a diminution (reduction) in the fair market value of the property.  Either the plaintiff or the defendant may offer evidence of diminution in the fair market value of the property as a factor bearing on the reasonableness of the cost of restoration.

Medical Mutual of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496
Patient Consent to Release Medical Information; Physician-Patient Privilege
Medical Mutual filed a civil fraud action against a physician.  The policies that were issued to the physician’s patients who were insured by Medical Mutual included language that stated “you consent to the release of medical information to Medical Mutual when you enroll and/or sign an Application” and “when you present your identification card for Covered Services, you are also giving your consent to release medical information to Medical Mutual.”  Medical Mutual filed a motion for the patient records to be turned over by the physician, who opposed the motion based on physician-patient privilege.
A consent to release “medical information is valid and waives the physician-patient privilege if it is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered.”  The physician argued the patients’ consent did not specify Medical Mutual’s attorneys as authorized to receive the information.  But, the court held “the release to Medical Mutual in this case also permits disclosure to its attorneys who are seeking disclosure on its behalf.”  Thus, in this case, disclosure to Medical Mutual’s attorneys is permitted because the physician refused to provide the medical records directly to Medical Mutual.

Minno v. Pro-Fab, Inc., 121 Ohio St.3d 464, 2009-Ohio-1247
Corporate Veil Piercing
Plaintiffs sued defendants, two “sister” corporations, alleging one of the corporations negligently failed to provide a safe work environment.  As the allegedly negligent corporation carried no general liability insurance, the plaintiffs attempted to pierce the corporate veil of the non-negligent corporation to reach that corporation’s general liability insurance.  The trial court granted the non-negligent corporation’s motion for summary judgment, but the appellate court reversed, stating the plaintiffs had presented sufficient evidence to see if the corporations were “fundamentally indistinguishable,” and thus, whether plaintiffs could pierce the corporate veil under Belvedere Condominium Unit Owners’ Ass’n. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274.  The Ohio Supreme Court reversed the appellate court, holding that when two corporations have common individual shareholders, but neither corporation has any ownership interest in the other corporation, a plaintiff cannot pierce the corporate veil of the second corporation for the misdeeds of the first corporation.

Mynes v. Brooks, 2009-Ohio-5946
Arbitration Agreement; Final, Appealable Orders
Mr. and Mrs. Mynes filed suit claiming they purchased a home containing mold and structural defects that were knowingly concealed or negligently undiscovered and unreported.  There was a contract between the Myneses and the home inspectors which contained an arbitration provision.  The trial court declined to stay the matter pending arbitration, and ordered the home inspectors to participate in the lawsuit.  The Court of Appeals dismissed the appeal of the home inspectors on jurisdictional grounds because although the trial court’s order was “final” under R.C. § 2711.02(C), it did not meet the requirements of Civ.R. 54(B).
The Supreme Court held that under R.C. § 2711.02(C), a party is permitted to appeal the granting or denial of “a stay of trial pending arbitration, even when the order makes no determination pursuant to Civ.R 54(B).”  Therefore, the court reversed the decision of the Court of Appeals.

Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626
Negligence- Punitive Damages; Self-Defense
Plaintiff Paul Niskanen left a Giant Eagle store without paying, and began putting the bags in his car.  The store manager followed Mr. Niskanen and tried to stop him.  An altercation ensued, in which four men eventually pinned Mr. Niskanen to the ground and restrained him.  Shortly thereafter, the police arrived and asked the men to get off Mr. Niskanen.  At this point, it was discovered that Mr. Niskanen did not have a pulse.  He was later pronounced dead, and the cause of death was asphyxiation.  Mr. Niskanen’s mother brought suit against Giant Eagle, and her causes of action were based only in negligence.  A jury found that Giant Eagle was negligent in failing to properly train its employees, but that Mr. Niskanen was most at fault for his injuries.  Therefore, no compensatory damages were awarded.
The Supreme Court held that “punitive damages are available in negligence actions only if compensatory damages are awarded.”  The Court also held that self-defense can be raised “as an affirmative defense to a negligence cause of action.”  But, whether it applies will be “determined on a case-by-case basis by examining whether the evidence supports the defense.”

Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030
Damages; Caps on Noneconomic Compensatory Damages Against a Political Subdivision
Two plaintiffs each won a jury verdict against the city of Cleveland, and each was awarded $400,000.00 in compensatory damages.  Cleveland submitted a motion to have the compensatory damages reduced for each plaintiff pursuant to R.C. § 2744.05(C)(1), which states there is a $250,000.00 limit on damages awarded against political subdivisions that do not represent actual loss to an injured party (noneconomic compensatory damages).  The plaintiffs responded, claiming the statute violated their right to a jury trial and the Equal Protection Clause of the United States Constitution.
The Ohio Supreme Court stated that a jury’s fact-finding is not intruded upon when a court applies R.C. § 2744.05(C)(1).  The Court also declared that the statute is not unreasonable or arbitrary in its application “to persons suffering non-catastrophic injuries.”  Accordingly, the Court held R.C. § 2744.05(C)(1) does not violate either a plaintiff’s right to a jury trial or the Equal Protection Clause.

Olympic Holding Co. v. ACE Limited, 122 Ohio St.3d 89, 2009-Ohio-2057
Statute of Frauds; Promissory Estoppel
Plaintiff and defendants were involved in contractual negotiations to enter into a joint venture.  After the defendants informed the plaintiff they would not proceed with the agreement, the plaintiff filed suit.  Defendant filed a motion for summary judgment that claimed the agreement did not satisfy the statute of frauds, R.C. § 1335.05.
The Supreme Court held “a party may not use promissory estoppel to bar the opposing party from asserting the affirmative defense of the statute of frauds, which requires that an enforceable contract be in writing and signed by the party to be charged, but may pursue promissory estoppel as a separate remedy for damages.”  It also held a joint-venture agreement is unenforceable if it does not satisfy the statute of frauds, so it “cannot impose any fiduciary duties on the parties.”

Roe v. Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973
Confidential Medical Records
The Roes sought to obtain nonparty medical records from Planned Parenthood of suspected abuse and abortions performed on minors.  They intended to use this evidence in their claim against Planned Parenthood for not reporting child abuse after their 14-year-old daughter received an abortion. The Roes cited to Biddle, claiming the disclosure would further a counter-veiling interest and thus outweighs the patients’ need for confidentiality. The Supreme Court found that although the Roes had identifying information removed from the medical records, it did not change the records’ status as confidential and privileged. The Court also held the test in Biddle only applies as a defense to the tort of unauthorized disclosure of medical information, and does not create a right to discover confidential medical records of nonparties in a private lawsuit.

Sisk & Assoc., Inc. v. Commt. to Elect Timothy Grendell, 2009-Ohio-5591
Voluntary Dismissals; Service of a Complaint
Plaintiff filed a complaint on September 23, 2004, but failed to obtain service on the defendant within one year, so plaintiff voluntarily dismissed the complaint.  Plaintiff re-filed the complaint on October 19, 2005, but again failed to serve the defendant within one year.  Plaintiff then requested the clerk to serve the defendant on March 26, 2007, which was outside of the one-year time limit.  The Supreme Court held the “instruction for a clerk to attempt service of a complaint that was filed more than a year prior... by operation of law is a notice of dismissal of the claims....”  Since the plaintiff had previously voluntarily dismissed a complaint which made the same claims, the second notice of dismissal resulted in a dismissal of the claims with prejudice.

West Broad Chiropractic v American Family Ins., 122 Ohio St.3d 497, 2009-Ohio-3506
Assignment of Future Settlement Proceeds
After being injured in an automobile accident, non-party Kristy Norregard assigned her right to proceeds from a prospective settlement or judgment to appellant, West Broad Chiropractic when she received treatment there following her injury. Norregard executed an assignment to West Broad that stated West Broad was to be paid from the settlement before she received any settlement proceeds. West Broad notified American Family Ins. and requested to be included as a co-endorser on any disbursement check, or issued a separate check.  But, the notice did not specify the amount due to West Broad.  American Family Ins. disbursed all of the proceeds from the settlement directly to Norregard. The 10th District Court of Appeals refused to enforce the assignment of the proceeds and held “Norregard had no enforceable rights against AFI under R.C. § 3929.06 until she obtained a judgment.” The Supreme Court held a person injured in an accident “may not assign the right to future prospective proceeds of a settlement if the right does not exist at the time of the assignment” when such person “has not yet established liability for the accident and a present right to settlement proceeds.” Additionally, this Court held R.C. § 3929.06 “precludes an assignee of prospective settlement proceeds from bringing a direct action against a third-party insurer after the insurer distributed settlement proceeds.”

APPELLATE COURT DECISIONS
 

Insurance Coverage Decisions
 

Alexander v. Yackee, 2009-Ohio-1387
Insurance Policy Mistakes; Partnerships
Plaintiff and his father owned an apartment building.  The father paid the mortgage and made the business decisions, while plaintiff did all the maintenance and repairs.  Due to costs, the father cancelled the previous insurance policy and took out a general liability policy on the property.  The insurance agent mistakenly listed the father and his wife as the named insureds.  Before the new insurance was secured, a fire destroyed the building.  Plaintiff owner filed suit, alleging he was not properly notified of cancellation of property insurance and not properly named on the new policy.  The trial court granted summary judgment for the agency and agent.  The appellate court also found since there was a partnership, and the father’s knowledge of the insurance issues was imputed to the plaintiff owner.  Therefore, the appellate court affirmed the trial court’s ruling.

Auto Owners Mut. Ins. Co. v. Kendrick, 2009-Ohio-2169
Res Judicata; Breach of Contract and Insurance Policy
The insurance company brought an action for declaratory judgment that it had no duty to defend or cover an insured under a commercial general liability policy in an underlying suit against the insured.  The trial court granted summary judgment to the insurer. A trustee of the bankrupt estates of the parties who sued the insured appealed.  Damages were awarded in the underlying case against the insured for breach of contract.  The trustee agreed that the policy did not cover breach of contract claims based on the insured’s workmanship, but argued coverage was provided under an exception to an exclusion for work done by subcontractors, and most of the work was done by subcontractors.  On appeal, the court found that after damages were awarded in the underlying breach of contract case, the only matter pending was a determination of those damages since there were no other pending claims against the insured or his subcontractors.  Under the doctrine of res judicata, the trustee could not raise fact issues regarding the subcontractors’ failure to adequately perform their work.  The breach of contract claim was not an “occurrence” under the general liability policy, so the insured was not entitled to coverage.

Cawrse v. Allstate Ins. Co., 2009-Ohio-2843
Insured’s Burden of Proof
Plaintiff claimed that his estranged daughter vandalized and caused damage to his vehicle when he lent it to her.  The trial court found that the insurer never investigated the reported vandalism, and therefore held in favor of the insured, awarding him damages.  The appellate court found the trial court erred, because the forensic mechanic’s report, submitted by the insurer, proved the insurer investigated the claim and found the damages to the car were not related to a collision.  Therefore, the insured failed to meet his burden of proof, as there was no other evidence to support his claim. 

 
Erie Ins. Co. v. Paradise, 2009-Ohio-4005 
Permissive Use
Ms. Paradise was involved in an accident while using a truck owned by Terry Gates.  Her passenger was killed in the accident.  Terry’s son, Danny, was Ms. Paradise’s boyfriend.  Terry had given permission to Danny to drive the truck with the understanding Danny would buy the truck.  Terry specifically told Danny no one else could drive the truck.  Danny had initially told Ms. Paradise she could drive the truck for emergency purposes only; however, when Danny began commuting to Michigan for his work, he became aware Ms. Paradise would sometimes use the truck.  Terry, the owner of the truck, later learned from other relatives Ms. Paradise was driving the truck, at which point he called his son, Danny, to remind him no one else was to drive the truck.  Under these facts, the court determined Terry Gates, the vehicle owner, had not impliedly consented to Ms. Paradise’s operation of the truck.  The court ruled Ms. Paradise was not an insured under the terms of the auto liability policy issued to Terry Gates.

Jackson v. Pub. Entities Pool of Ohio, 2009-Ohio-1772
Insurance Policy Language; Insurance Coverage; Summary Judgment
The victim of a car accident sued the driver of the car, her insurer, the city’s insurer and a self-insured pool comprised of various political agencies and subdivisions.  The trial court granted summary judgment in favor of the victim’s insurer, but denied summary judgment for the city’s insurer.  The appellate court affirmed, because pursuant to R.C. § 2744.08, the coverage afforded by the joint self-insurance pool was in the nature of insurance coverage.

Roeser v. State Farm Ins. Cos., 2009-Ohio-3395
Insurance Coverage Decision
An auto mechanic, the insured, was hit while driving a vehicle he had just repaired.  The mechanic’s insurer argued underinsured coverage was excluded because it did not insure the vehicle and the vehicle was provided for the mechanic’s “regular use.”  The appellate court focused on the five “signpost” analytical framework for whether a vehicle is provided for an insured’s regular use: 1) whether the vehicle was available most of the time to the insured; 2) whether the insured made more than mere occasional use of the vehicle; 3) whether the insured needed to obtain permission to use the vehicle; 4) whether there was an express purpose conditioning the use of the vehicle; or 5) whether the vehicle was being used in an area where its use would be expected.
Applying this test to the facts, the court found the mechanic was entitled to coverage.  First, neither this vehicle nor any other vehicle at the dealership was available to the mechanic most of the time.  Second, the mechanic’s use of the vehicle was, at best, occasional.  Third, the mechanic’s use of the vehicle, or any other owned by the dealership, was within the scope of his duties as a mechanic.  Last, there was nothing to suggest the mechanic was on a folic or detour for his own purposes.
 
UM/UIM Decisions
 

Allen v. Binckett, 2009-Ohio-2969
Settlement; Insurance Contracts; Conflict of Interest; “Make Whole” Rule
Plaintiffs sued for personal injury and loss of consortium arising from an automobile collision against defendant driver and their insurance company for UM/UIM coverage.  The insurer filed a cross-claim against the other driver.  At mediation, the parties entered into a settlement that encompassed the insurance company’s subrogation/reimbursement interest, but left the validity of that interest for judicial determination.  Plaintiffs dismissed their UM/UIM claim against the insurer and the insurer dismissed its cross-claim against the other driver as a result of the mediation.  The issue of whether the insurance company was entitled to the funds pursuant to the subrogation and/or reimbursement provisions of its policy was litigated.  The trial court found that the insurer had a valid claim.  Plaintiffs appealed, arguing that the insurer had a conflict of interest since it insured both drivers.  The appellate court held there was no conflict of interest, because it was the plaintiffs who made the insurer a party in the case, and they shouldn’t be permitted to disregard the terms of the insurance contract without any action by the insurer.  The plaintiffs also argued the trial court erred in not applying the “make whole rule.”  The appellate court found that the voluntary settlement is persuasive evidence of the value of the insured’s losses.

Mosley v. Personal Serv. Ins., 2009-Ohio-419
UM Coverage; Hit and Run Testimonial Evidence
Insured plaintiff alleged that she swerved off the road and hit a telephone pole to avoid a van traveling towards her.  She later submitted a UM claim that was denied on the grounds that she had failed to comply with the policy requirement to provide independent evidence that the negligence of an unidentified driver caused her accident.  In the lawsuit, the insured presented testimony of a firefighter who stated that after the accident, a van drove through the scene at a high rate of speed and nearly struck several firefighters.  The trial court denied a directed verdict, and the appellate court affirmed.  The courts held while the descriptions of the van given by the insured and the firefighter witness were not exact, they were similar enough.  Further, the fact there was no evidence of when the van drove by the scene did not mean that the testimony could not support the insured’s claim.

Shenyey v. Glasgow et al., 2009-Ohio-1366
Duplication Clauses in Uninsured Motorists Coverage
The plaintiff was involved in an accident with the uninsured defendant and claimed and recovered medical expenses under his medical payments coverage with State Farm Mutual Auto Ins. Co. in the amount of $14,000.00.  Plaintiff then sought to recover the same $14,000.00 under his UM policy, which State Farm did not pay.
The court found the non-duplication clause within the UM policy is valid under the October 1, 2003, amendments to R.C. § 3937.18, which permits policies with UM coverage to limit or exclude coverage under specific circumstances.  The plaintiff recovered his full amount of medical expenses, the goal of insurance, and was not allowed to recover double payment under the UM coverage. 
 

Employment Decisions
 

Wendel v. Omni Mfg., Inc., 2009-Ohio-912
Employer Intentional Tort
The plaintiff was injured while repairing a stamping press, which he believed to be in the “off” position.  The press was, however, on, and pulled the plaintiff into the machine, causing serious injuries.  The plaintiff alleged his employer was substantially certain serious bodily harm could occur.
The Court of Appeals did not find the defendant employer had committed a “substantially certain” employer-employee intentional tort. The defendant employer had in place extensive “lockout” and “tag” procedures for the repair process, and provided these lockouts and tags to the plaintiff employee.  Simply knowing a dangerous condition exists during the course of employment is not evidence enough to demonstrate an employer was intentionally or substantially certain that serious harm would occur.
 

Premises Liability Decisions

Burckholter v. Dentistry For You, 2009-Ohio-1654
Slip and Fall During Winter Accumulation
The plaintiff slipped and fell, injuring her back, after exiting her car for a dentist appointment at the defendant’s office.  The parking lot had been plowed, with piles of snow in the four corners of the lot.  The plaintiff saw these piles, and was aware of the possibility of melting and refreezing.  The trial court found the defendant did not create a dangerous or hazardous condition, but the melting and refreezing of the snow piles was a natural and obvious condition, under which no duty was owed.
The Court of Appeals agreed.  In Ohio, there is generally no duty of a business owner to its patrons when snow and ice has naturally accumulated.  The court found plowing a parking lot does not necessarily make the condition unnatural, where a duty would arise.  Further, the defendant did not have superior knowledge that plowing the lot would create a hazard, as the plaintiff was aware of the natural condition of snow melting and refreezing.  Therefore, summary judgment in favor of the defendant was appropriate, as no duty was owed to the plaintiff.

Frano v. Red Robin International, Inc., 2009-Ohio-685
Open and Obvious Doctrine
A restaurant patron sued for personal injuries she sustained from tripping and falling on a step leading from a booth where she had been seated.  The booth was elevated on a six inch platform.  She was initially aware of this, but during the course of her meal, she forgot about the platform and tripped and fell as she was leaving.  The trial court granted summary judgment for the defendant restaurant, finding that the condition was open and obvious and therefore the restaurant had no duty to warn.  On appeal, the court found the fact the patron forgot about the step did not create an issue of fact.  It was undisputed that the patron saw and was aware of the step before entering the booth.  She also testified there was nothing to distract her as she was leaving, and so there were no attendant circumstances that would have created a fact issue.  Further, the court found the restaurant was not negligent for seating the patron at a platform booth, because there was no evidence it should have foreseen any danger to her by doing so.  Therefore, the appellate court affirmed summary judgment.
 

Governmental Immunity

Holbrook v. Brandenburg, 2009-Ohio-2320 
Sovereign Immunity; Summary Judgment
Defendant’s house was built in the drainage path above the plaintiff’s house.  Defendant blocked the culvert pipes from the road to stop the natural drainage which caused flooding and damage to the plaintiff’s house.  In addition to suing the defendant neighbors, plaintiff sued Bethel Township for negligently maintaining a drainage system and allowing the neighbors to tamper with the system.  The lower court granted summary judgment, holding the township had sovereign immunity.  The appellate court reversed, however, finding that whether the township’s decision to ignore years of complaints and requests by the plaintiff constituted the exercise of “judgment or discretion” was a question of fact.  Further, the court held that whether or not that judgment or discretion was malicious, in bad faith, or was wanton and/or reckless was also a question of fact.

Lucchesi v. Fischer, 2008-Ohio-5934
Edge Drops and Public Roads; Summary Judgment and Res Judicata
A negligence action was brought on behalf of decedent Lucchesi who was killed in a car accident when the driver swerved to avoid an oncoming car.  The accident was allegedly caused by an “edge drop” or drop-off edge at the shoulder or berm of the road.  The Administrator of the Estate sued the Clermont County Board of Commissioners, claiming it was negligent for failing to keep the road "open, in repair and free from nuisance."  The appellate court affirmed summary judgment for the Board on the ground of political subdivision immunity.  The court held the exception to immunity for failure to keep “public roads” in repair did not apply, because the edge drop was a part of the shoulder or berm, which the legislation did not intend to be considered part of the public road.  The court further held the trial court’s denial of the Board’s first motion for immunity was not a final judgment rendered on the merits of the negligence action, and therefore res judicata did not preclude the trial court from granting the Board’s second motion.

Mitchell v. Blue Ash, 2009-Ohio-1887
Immunity and Recreational Users
The plaintiff attended a fireworks display on property owned by the defendant municipality.  During the display, the plaintiff’s hand was on a fence with a gate operated by rolling across the top of the fence.  An employee of the defendant opened the gate, injuring the plaintiff’s finger.  The trial court granted the defendant immunity.
The Court of Appeals agreed. Under R.C. § 1533.181, “recreational users” who have permission to use a premises for recreational purposes without paying a fee are owed no duty of care by the tenant or owner of the land.  The court found the plaintiff was at the premises for the recreational enjoyment of the fireworks, and therefore not owed any duty of reasonable care by the defendant’s employees.
 
Spain v. Village of Bentleyville, 2009-Ohio-3898
Governmental Immunity
A pedestrian was walking down the road when he was struck by a police vehicle operated by a police officer.  Generally, a political subdivision is not civilly liable for the negligent acts of its employees acting in connection with a government function.  However, an exception to this sovereign immunity applies when an employee engaged in the scope of his or her employment negligently operates a motor vehicle, causing injury.  It is a full defense to this liability if a member of the police department was operating the vehicle was responding to an “emergency call” and the operation of the vehicle did not constitute willful or wanton misconduct.  “Emergency call” is defined as “a call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace office.”  The court refused to extend this definition to include the performance of basic patrol duties, which the officer in question was performing at the time of the incident.

Stanton-King v. Montgomery Cty. Bd. of Commrs., 2009-Ohio-428
Slip and Fall; Governmental Immunity
The plaintiff slipped and fell in an above ground parking lot owned and maintained by the defendant.  The plaintiff alleged the defendant was negligent in maintaining the parking garage, which led to her fall and injuries.  The defendant argued the plaintiff was a licensee while in the garage, and, therefore, sovereign immunity barred a claim against the defendant.  The plaintiff asserted she was a business invitee at the time of the fall, disallowing an immunity claim.
The Court of Appeals remanded the case back to the trial court, finding the trial court did not properly determine the status of the plaintiff as either a licensee or invitee.  Without a determination of status, the Court of Appeals found the sovereign immunity doctrine could not be applied and analyzed.

Swint v. Auld, 2008-Ohio-5381
Appeals; Governmental Immunity; Jurisdiction
The Village of Golf Manor appealed the trial court’s denial of governmental immunity under Civ.R. 12(B)(6) when it was sued for a police officer’s actions during a dog attack.  The trial court did not include a Civ.R. 54(B) certification in its decision.  The appellate court dismissed the appeal for lack of jurisdiction.  Although the court found that pursuant to R.C. § 2744.02(C) the trial court’s order was a final decision, it did not automatically follow that it was an appealable decision.  The court followed Sullivan v. Anderson Twp., 2008-Ohio-1438, holding a court has no jurisdiction to hear an appeal from a judgment of fewer than all the claims or all the parties in a multi-claim, multi-party case in the absence of the trial court’s determination of all claims.  The trial court stated that the case had been dismissed “other than on the merits and without prejudice” on the grounds that an appeal would “indefinitely stay further proceedings.”  Further, the trial court held the case could be reactivated upon either party’s motion for good cause shown or upon order of the Appellate Court.  Golf Manor therefore asserted there were no other claims or parties below.  However, the appellate court held the dismissal was not legitimate since there is no civil rule allowing a court to dismiss a case because an appeal will indefinitely stay further proceedings, and no rule allows a trial court to dismiss a case subject to reactivation.  Therefore, the appeal was dismissed.
 

Other Significant Decisions

Adkins v. Estate of Place, 2009-Ohio-526
Actual Authority Required for Settlement
The attorney for an injured plaintiff mistakenly believed his client instructed him to accept a settlement offer, which he did. The party offering settlement attempted to enforce the settlement while plaintiff appealed and attempted to move to trial. The court held an attorney who is without specific authorization has no implied power by virtue of his general retainer to compromise and settle his client’s claim or cause of action. Furthermore, an attorney’s authority to negotiate does not imply the authority to enter into a settlement agreement.  Defense attorneys should be aware that simply because a plaintiff’s attorney is negotiating does not mean the attorney has the actual authority to settle the claim.

Bouher v. Aramark Servs., 2009-Ohio-1597
Product Liability; Consumer Expectation Test; Failure to Warn; Summary Judgment
Plaintiff used a FETCO coffee maker to get hot water for brewing tea at work as she had done many times before.  She suffered second degree burns when her finger pressed through the cup and stuck, causing her to shake her hand and splash the hot water onto her.  The trial court denied summary judgment under the consumer expectation test, because the degree of burns the plaintiff suffered is enough to raise a factual issue as to whether the water was unreasonably hot.  The appellate court reversed, granting summary judgment because plaintiff presented no evidence to show there was a material issue of fact regarding a defective design of the coffee maker and the temperature of the water was below industry standard.  Further, the appellate court found the hot water was an open and obvious risk, therefore there was no failure to warn.  The court’s decision overruled Nadel v. Burger King (1997), 119 Ohio App. 3d 578.

Cargile v. Barrow, 2009-Ohio-371
Discovery of Medical Records
The plaintiff filed an action for personal injuries in an automobile accident.  The defendant requested the release of all the plaintiff’s medical records for the previous five years.  The plaintiff refused, claiming doctor-client privilege, and that some of the records were not related to the accident. 
The trial court ordered the release of all records, without review.  The appellate court reversed, and determined when there is a dispute over whether a medical record is sufficiently related to a pending civil action, the judge must review the medical record to determine if the record is privileged before ordering the release of the record.

 
Hanners v. Ho Wah Genting Wire & Cable SDN BHD, 2009-Ohio-6481
Bifurcation of Punitive Damages Claims in a Tort Action
R.C. § 2315.21(B) provides in a tort action tried to a jury in which a plaintiff makes claims for compensatory and punitive damages, upon the motion of any party, the trial of the tort action shall be bifurcated.  The trial court refused to apply the statute, and instead applied Civil Rule 42(B), which gives the court discretion to bifurcate.  The court of appeals reversed the decision of the trial court, and held in a tort action tried to a jury, upon the motion of any party, the trial of the action for compensatory damages must be bifurcated from the punitive damages action.  The court of appeals also held where a trial court denies a defendant’s motion to bifurcate the plaintiff’s claims for compensatory damages from the claims for punitive damages in a tort action, the decision of the trial court is a final, appealable order.

Jacques v. Manton, 2009-Ohio-1468 
Collateral Source Rule
This case arose as a personal injury action following a traffic accident.  At trial, the defendant attempted to introduce evidence the plaintiff’s medical providers accepted reduced payments pursuant to a contract with the plaintiff’s insurer that reduced the reasonable value of his medical expenses.  The lower court denied the request to introduce this evidence under R.C. § 2315.20, which states in relevant part that “(A) In any tort action, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the damages that result from an injury, death, or loss to person or property that is the subject of the claim upon which the action is based, except if the source of collateral benefits has a * * * contractual right of subrogation * * *."  Because the source of medical payments the defendant attempted to introduce into evidence was subject to the contractual right of subrogation, the appellate court held the application of the collateral source rule is governed by R.C. § 2315.20 and affirmed the trial court’s decision.  Specifically, the court refused to apply Robinson v. Bates, because the accident occurred after the effective date of R.C. § 2315.20.
The Ohio Supreme Court has accepted jurisdiction of this case, and its decision is pending. 

McCoy v. Murray, 2009-Ohio-1658
Sudden Medical Emergency
The defendant was driving a motor vehicle when he suffered sudden loss of vision and consciousness, and was determined to have suffered a heart attack.  His vehicle ran off the road and into the plaintiffs’ kitchen.  The plaintiffs brought suit, but lost on summary judgment, due to the sudden emergency doctrine that alleviated the defendant’s liability to the plaintiffs.  The issue was brought to appeal.
The Court of Appeals agreed, dismissing the plaintiffs’ argument that the defendant had a history of heart issues that would lead to a heart attack.  The court did not agree that a family history of heart attacks and other factors made a heart attack foreseeable.  There was no positive way for the defendant to have foreseen a heart attack to occur at any given moment, much less while he was driving a motor vehicle.  Therefore, the sudden emergency doctrine created a bar from liability for the defendant. 
 
McDougal v. Ditmore, 2009-Ohio-2019
Settlement; Loss of Jurisdiction
One of the plaintiffs in a personal injury dispute and the attorney signed a settlement agreement that required the plaintiff to pay a medical lien held by an insurance company from the proceeds of the settlement.  An agreed order of dismissal with prejudice was filed.  The plaintiff failed to pay the lien from the settlement proceeds, and so the appellee filed a motion to enforce the settlement.  The trial court granted this motion.  The appellate court held that since the trial court unconditionally dismissed the case, it no longer had jurisdiction to take any further action, including the enforcement of the settlement agreement.  Therefore, the trial court’s judgment was void and the appellate court vacated the judgment.

Portsmouth Ins. Agency v. Med. Mut. of Ohio, 2009-Ohio-941
Indemnification after Settled Claims
An insurance agency and insurance company were sued in a medical malpractice case.  The insurance company settled and then sought indemnification from the insurance agency because there was evidence the agent wrongly completed the application.  The trial court did not allow indemnification.
The Court of Appeals, however, held there were issues of material fact.  Indemnity is allowed in Ohio after a party settles a lawsuit instead of litigating as long as: 1) proper and timely notice is given to the indemnitor; 2) the non-settling party was legally liable to respond; and 3) the settlement was fair and reasonable.  The court found the settlement to be fair, so issues remained as to whether the insurance agency was legally liable to respond to the suit. 

Ray v. Ramada Inn N., 2009-Ohio-1278
Expert Testimony
Plaintiff sued the defendant for injuries sustained from slipping and falling on defendant’s hotel premises.  Initially, the trial court granted summary judgment against him.  On the initial appeal, the ruling was reversed and the matter remanded.  In the second trial, the court relied on R.C. § 2743.43 in determining that plaintiff’s expert could not testify while his medical license was suspended.  Therefore, due to his lack of expert testimony, a stipulated directed verdict was entered against the plaintiff.  On appeal, the court held the trial court abused its discretion by relying on R.C. § 2743.43, because it was only applicable in medical malpractice actions.  Instead, the court should have determined whether plaintiff’s expert was qualified to testify under Evid. R. 702.

Segedy v. Cardiothoracic and Vascular Surgery of Akron, Inc., 2009-Ohio-2460
Impeachment of Expert Witness
This was a wrongful death action against a heart surgeon.  The plaintiff’s expert witness testified the defendant released the patient from the operating room before she was stable, proximately causing her death.  On cross-examination, the witness admitted there was no way to be medically certain that the deceased would have lived if she had been kept in the operating room longer.
The court stated in order for an expert witness’s testimony to be considered “recanted” and not available to the jury to use in its decision, the witness must publically withdraw or definitively repudiate his prior testimony.  The court found the cross-examination did not lead the witness to formally repudiate any prior statements, as the witness refused to speculate about whether the deceased would have lived.  Therefore, no reversible error was found.

Stark Commons, Ltd. V. Landry’s Seafood House – Ohio, Inc., 2009-Ohio-3847
Declaratory Judgments; Attorney Fees
In a lessor/lessee dispute, the lessor brought a declaratory judgment action.  The trial court granted summary judgment to the lessor on the declaratory judgment action.  In a separate action, a judgment for damages due to breach of lease was entered for the lessor.  The award of attorney fees was at issue on appeal.  The appellate court held that the award of attorney fees was not ripe for determination in the breach of lease action as the attorneys fee award was based on the declaratory judgment action.  Furthermore, the award of attorney fees in a declaratory judgment action was improper as the Declaratory Judgment Statute, R.C. § 2721.16(A), bars attorney fees and none of the statute’s exceptions applied.

State ex rel. Findlay Industries v. Industrial Commission of Ohio, 2009-Ohio-1674
Failure to Object to Magistrate’s Conclusions of Law
Plaintiff filed a complaint in mandamus in the Tenth District Court of Appeals regarding a woman’s application for disability compensation.  The matter was referred to a magistrate who issued a decision including findings of fact and conclusions of law.  The plaintiff filed no objections to the magistrate’s report, and the appellate court accepted the decision as its own.  On appeal, the plaintiff’s arguments arose from the magistrate’s conclusions of law, but since plaintiff did not object to those conclusions, the court could proceed no further and affirmed.

Wolfe v. Priano, 2009-Ohio-2208
Dismissal and Refiling
Plaintiffs voluntarily dismissed and refiled their medical malpractice action against the defendants, a physician and a medical practice.  The trial court dismissed the case without prejudice, and the plaintiffs refiled again.  The trial court then granted summary judgment for the defendants.  The appellate court affirmed, finding that R.C. § 2305.19 only allowed plaintiffs to refile their claim once after voluntarily dismissing it.  No authority supported plaintiffs’ argument that the legislature had eliminated this rule.  The fact that the complaint was dismissed without prejudice only meant that it had no res judicata effect, but did not allow the plaintiffs to refile.  As a matter of law, the plaintiffs were barred from filing their action a third time.

 
Wooten v. Westfield Ins. Co., 2009-Ohio-494
Discovery; Medical Records; Limitations
Plaintiff sued for injuries suffered in a motor vehicle accident.  During discovery, she refused to sign medical release authorizations and filed a motion for a protective order.  On appeal, the court held that the trial court erred in denying the motion.  The authorizations were blanket ones that sought “all” of the plaintiffs’ medical and pharmaceutical records with no limitation beyond time.  R.C. § 2317.02(B)(3)(a) limits discovery in personal injury cases to medical records causally or historically related to the physical or mental injuries relevant to the case.  Under Civ. R. 26(C), the trial court had authority to order an in camera inspection of the medical records at issue.  Therefore, on remand, the appellate court ordered the trial court to conduct an in camera inspection of the medical records requested to determine whether they were discoverable.
 

 

SIGNIFICANT CASES PENDING BEFORE THE OHIO SUPREME COURT

Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc.
Denial of Coverage After a No Contest Plea to Arson
The Supreme Court is being asked to determine whether an insured’s no contest plea to arson, which resulted in a conviction, can be relied upon to deny coverage for the property loss claim and negate a claim of bad faith for denying coverage.

Estate of Heintzelman v. Air Experts, Inc.
Default Judgment
This appeal addresses the issue of whether a default judgment in a declaratory judgment action precludes recovery by the claimant in a supplemental complaint if the claimant was not a party to the declaratory judgment action.

Jaques v. Manton
Applicability of Robinson v. Bates
This appeal addresses the issue of whether Robinson v. Bates applies following the enactment of R.C. § 2315.20, which prohibits the introduction of the amount a medical provider accepted as payment from a collateral source which had a right of subrogation.

Kiminski v. Metal & Wire Products Co.
Constitutionality of R.C. 2745.01
This appeal asks the Supreme Court to review the constitutionality of R.C. § 2745.01, which codifies workplace intentional tort claims. 

Klaus v. United Equity, Inc. 
Interpretation of “Deliberate Intent” in R.C. 2745.01
This appeal seeks an interpretation of the phrase “deliberate intent” found in R.C. § 2745.01(B), which concerns workplace intentional tort claims.

Neal-Pettit v. Lahman
Punitive Damages and Attorneys Fees
This appeal concerns whether an insurance policy is liable to pay for an award of attorney fees, which is accompanied by a punitive damages judgment, even though the policy excludes coverage for punitive damages, fines, or penalties.

 
Pennsylvania Gen. Ins. Co. v. Park-Ohio Industries, Inc.
“All Sums” Approach to Apportioning Coverage
The Supreme Court is being asked to determine whether the targeted insurer can obtain contribution from the non-targeted insurer when the terms and conditions of the non-targeted insurer’s policy were unfulfilled.

Stetter v. R.J. Corman Derailment Servs.
Constitutionality of R.C. § 2745.01
This is a companion case to Kiminski, and also asks the Supreme Court to review the constitutionality of R.C. § 2745.01.