Ohio Law Summaries
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.
Amended by 2009 Ohio SB 106 to change the amount of net settlement from $10,000.00 or less to $25,000.00 or less after payment of fees and expenses. Additional language added includes: “In the settlement, if the ward is a minor, the parent or parents of the minor may waive all claim for damages on account of loss of service of the minor, and that claim may be included in the settlement.”
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.
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.
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.
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.
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.
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.
Allstate Ins. Co. v. Campbell, 2010-Ohio-6312
Application of 'Inferred Intent' Doctrine to Intentional Acts Exclusion in Insurance Policy
A group of teenage boys stole a Styrofoam target deer commonly used for shooting. The boys secured a piece of wood to the target so that it would stand upright and then placed it just below the crest of a hilly, curvy two-lane road with a speed limit of 55 miles per hour. They put the target on the road after dark in a place in which drivers would be unable to see it until they were 15 to 30 yards away. The boys then waited to watch the reactions of motorists. About five minutes after they placed the foam deer in the road, Robert Roby drove over the hill. He took evasive action to avoid the decoy, but eventually lost control of his vehicle, which left the road, overturned, and came to rest in a nearby field. The accident caused serious injuries to both Roby and his passenger, Dustin Zachariah.
Roby and Zachariah filed suits against the boys, their parents, and their insurance companies, which included Allstate, Erie Insurance Exchange, Grange Mutual Casualty Co. and American Southern Insurance Company. The insurers filed declaratory judgment actions seeking a declaration that, based on “intentional acts exclusions” in their policies, they were under no duty to defend or indemnify their insureds, the juveniles and their parents.
The trial court, relying on the doctrine of inferred intent, concluded that none of the insurance policies provided coverage and none of the insurers had a duty to defend or indemnify its insureds. While the court did not find that the boys directly intended to cause harm, it inferred their intent as a matter of law, based in part on the finding that their conduct was substantially certain to result in harm. On review, the Court of Appeals reversed and remanded the case for further proceedings, concluding that the boys’ actions did not support an objective inference of intent to injure as a matter of law.
On appeal, the Supreme Court of Ohio ruled that when an insurance policy excludes coverage for intentional acts, the doctrine of inferred intent can be applied in cases other than those involving homicide or sexual molestation, thereby clarifying early application of the doctrine. However, inferred intent applies only where an insured person’s intentional act and the resulting harm are intrinsically linked, so that the act necessarily results in the harm. Thus, the Court held that inferred intent should not have been applied to grant summary judgment to the insurance companies seeking to deny coverage for damages caused by a teenage prank.
Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125 Ohio St. 3d 362, 2010-Ohio-1043, 928 N.E.2d 685
Evidence; No Contest Plea
A corporation held an insurance policy for property that was damaged in a fire and its officers were named as loss beneficiaries under the policy. The insurance company denied the claim when it determined that one of the officers intentionally started the fire. During the civil matter, the trial court used one of the corporation’s officer’s no contest plea to a criminal charge as evidence that he had set the fire and granted summary judgment for the insurance company.
The Supreme Court held that Crim R. 11(B)(2) and Evid. R. 410(A) prevented the use of convictions based on no contest pleas in an action for declaratory judgment for insurance coverage. It denied Elevators Mutual’s claim that Evid. R. 410 (A) only prevented the use of the no contest plea itself and not the use of the resulting conviction. It reasoned that the rationale for the rule is to promote plea-bargaining and the use of a no contest plea is not admissible whether it is being used offensively or defensively.
Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc., 2010-Ohio-6300
Third-Party Bus Driver Found to be Insured Under Auto Policy
The baseball coach from Bluffton University contracted with Executive Coach to provide transportation to Florida for players and coaches. Executive Coach provided a driver. During the trip, five members of the Bluffton University baseball team were killed along with the bus driver and his wife when the bus ran off of an exit ramp and crashed into the roadway below. Bluffton had a commercial automobile policy with Hartford, which defined “insured” as “[a]nyone else while using with your permission a covered ‘auto’ you own, hire, or borrow.” The issue in the case was whether the bus driver was an “insured” within the policy. The trial court found that neither the driver nor Executive Coach qualified as “insureds” under the Bluffton’s insurance policy, and the Third District Court of Appeals affirmed.
The Ohio Supreme Court reversed the Third District, concluding that Bluffton hired the bus and the driver. The bus driver had Bluffton’s permission, and thus was an “insured.” The insurers unsuccessfully argued that the driver was an “unforeseen third party,” and the Court stated “[w]e are not persuaded by the contention that the driver of a bus that Bluffton rented from a company in the business of renting busses is an unforeseen third party, when a clause in the insurance policy covers ‘any else’ driving a hired auto.”
Kaminski v. Metal & Wire Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066
Employer Intentional Torts; Workers Compensation
An employee was injured during the course of employment and received Workers’ Compensation benefits. A few months after the injury she filed an intentional tort action against her employer and argued that Ohio R.C. §2745.01, which limits intentional tort actions against an employer, violated Section 34 & 35, Article II of the Ohio constitution.
The Supreme Court found that §2745.01 was constitutional. The court interpreted Sections 34 and 35 of the Ohio constitution as a grant of authority to the General Assembly thus allowing it to legislate in the area of employer intentional torts. The court also found that Johnson v. BP Chems., Inc., (1999), 85 Ohio St. 3d 298, only invalidated the specific statute at issue and does not apply to §2745.01. The court construed the statute to mean that only injuries caused by truly intentional acts should be recognized as the basis for an intentional tort action and all others should be compensated through the Workers’ Compensation system.
Klaus v. United Equity, Inc., 125 Ohio St. 3d 279, 2010-Ohio-1014, 927 N.E.2d 1092
Reversed and Remanded With Instructions to Apply Kaminski; Stetter
The Ohio Supreme Court reversed the judgment of the court of appeals. The case was remanded to the court of appeals to apply Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-1027 and Stetter v. R.J. Corman Derailment Servs., LLC, 2010-Ohio-1029.
Sawicki v. Court of Common Pleas of Lucas City, 126 Ohio St. 3d 198, 2010-Ohio-3299, 931 N.E.2d 1082
Employee Immunity, Respondeat Superior, Private and Public Employer
The appellee filed an action alleging medical negligence against a doctor, who worked for both a public and private entity, and asserted that his private employer was also liable on the theory of respondeat superior. The trial court dismissed the claims against the doctor because he was a state employee during the alleged malpractice, but stayed the remaining respondeat superior claim against the private employer pending a ruling from the Court of Claims on whether the doctor was acting within the scope of his state employment during the appellee's treatment and was subject to personal immunity as a state employee.
The appellee then filed an action in the appellate court for a writ of procedendo to compel the appellant trial court and its judge to vacate the stay and proceed to judgment on the respondeat superior claim against the doctor's private employer. The appellate court granted the writ. The Ohio Supreme Court determined that an employee’s immunity from liability was no shield to the employer’s liability for acts under the doctrine of respondeat superior. Thus, if the doctor had committed tortious acts, but was shielded by statutory immunity, that immunity was personal, and the conduct itself remained actionable. Consequently, the private employer's argument that it could not be held liable if the doctor was personally immune failed.
Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St. 3d 280, 2010-Ohio-1029, 927 N.E.2d 1092
Employer Intentional Torts; Workers’ Compensation
An employee was injured during the course of employment and received Workers’ Compensation benefits. The employee filed an intentional tort action against her employer and argued that her claim was not completely barred by the Ohio Supreme Court’s recent narrowing of Ohio R.C. §2745.01 in Kaminski.
The Supreme Court found that although Kaminksi dramatically narrowed employer intentional torts, it did not completely abolish the common law claim. An employee can still recover if he proves the employer did the action with the intent to injure another or with the belief that it was substantially certain to occur. An employee who recovered for an intentional tort could collect an amount in excess of Workers’ Compensation benefits.
Boley v. Goodyear Tire & Rubber Co., 125 Ohio St. 3d 510, 2010-Ohio-2550, 929 N.E.2d 448
Premises Liability; Asbestos
A woman was exposed to asbestos when she laundered her husband’s work clothes in their home. The husband worked for the defendant and was exposed to asbestos-containing materials at work, which he then brought home on his clothing. The plaintiff sued the defendant alleging that it was negligent in allowing asbestos to be carried off its property. The trial court granted summary judgment in favor of the defendants reasoning that Ohio R.C. §2307.941(A)(A) barred claims of asbestos related injuries that do not occur on the premises owner’s property. The plaintiffs argued that Ohio R.C. §2307.941 (A)(1) applies only to premises liability claims and does not bar their negligence claim.
The Ohio Supreme Court found that the statute applied to all tort claims for asbestos claims brought against premises owners. Thus, pursuant to Ohio R.C. §2307.941(A) a premises owner is not liable in tort for claims arising from asbestos exposure originating from asbestos on the owner’s property, unless the exposure occurred at the owner’s property.
Estate of Graves v. Circleville, 124 Ohio St. 3d 339, 2010-Ohio-168, 922 N.E.2d 201
Political Subdivision Immunity; Police Department
A man was arrested for drunk driving, jailed, and then released later that afternoon. The police department then released the man’s car to him. The next morning, the man was involved in a car accident that killed the decedent. The estate of the decedent filed suit against the police officers claiming they had breached their duty when they released the car.
The Supreme Court held that the public duty rule adopted in Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, is not applicable in civil actions brought against employees of political subdivisions for wanton or reckless conduct. The public duty rule proscribes that because a municipality owes a duty to the general public it is not liable for a breach of that duty resulting in harm to an individual. Therefore, because the estate was alleging more than mere negligence, the officers were not able to use the public-duty rule as a defense.
Lambert v. Clancy, Hamilton County Clerk of Courts, 125 Ohio St. 3d 231, 2010-Ohio-1483, 927 N.E.2d 585
Political Subdivision Immunity; Clerk of Courts
A plaintiff filed suit against the clerk of courts office when it refused to remove personal information of the plaintiff off its website. The personal information was on a traffic citation issued to the plaintiff. The Ohio Supreme Court found the plaintiff had asserted her claims against the defendant in his official capacity as an officeholder of a political subdivision and therefore the political sub-division analysis set forth in Ohio R.C. §2774.02 applied. The court also reasoned that the political subdivision immunity applied and not the employee immunity provision of §2744.03(A)(6) because the complaint alleged that the office acted recklessly, willfully, and purposefully.
Summerville v. City of Forest Park, 2010-Ohio-6280
Order Denying Motion For Summary Judgment Held to be a Final Appealable Order
A wife notified the police that her husband was in danger of killing himself. Two officers arrived to find the husband stabbing himself in the chest with a knife. The officers ordered the husband to stop and subsequently tasered him. The husband lunged at the officers with the knife, and the officers shot and killed him. The husband’s wife sued for excessive force, deliberate indifference in failing to provide medical care, and deliberate indifference in failing to train under 42 U.S.C. § 1983, as well as wrongful death under R.C. 2125.01, negligent infliction of emotional distress, and loss of consortium. The trial court granted summary judgment on the state law and medical care under 42 U.S.C. § 1983 claim, but denied the officers’ summary judgment motion with respect to the excessive force claim and the failure to train claim under 42 U.S.C. § 1983. The officers appealed, and the court of appeals dismissed the appeal of the officers, holding that the trial court’s order was not immediately appealable.
R.C. 2744.02(C) reads “[a]n 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 law is a final order.” The Court found that “[a]n order denying a motion for summary judgment in which a political subdivision or its employee sought federal qualified immunity from claims brought under Section 1983, Title 42, U.S.Code is a final, appealable order pursuant to R.C. 2744.02(C).” Thus, the denial of summary judgment was a final appealable order, and the case was reversed and remanded, with the appeal reinstated.
Banford v. Aldrich Chem. Co., 126 Ohio St. 3d 210, 2010-Ohio-2470, 932 N.E.2d 313
Nuisance Damages; Evidence
A chemical company’s factory exploded one morning and sent a shock wave into the surrounding neighborhood. Residents that lived close to the factory were forced to evacuate and were allowed to return home 24 hours later. The residents filed a nuisance claim against the company to recover damages for annoyance and discomfort. The trial court found that in order for the plaintiffs to recover for annoyance, they must demonstrate physical discomfort.
The Ohio Supreme Court upheld the trial court’s decision and found that plaintiffs must establish that the nuisance created physical discomfort to recover damages in a nuisance suit. The Court found that the trial court did not err when it instructed the jury that fear and emotional harm alone was not enough to satisfy physical discomfort for a nuisance claim. The Court also held that the trial court did not err when it restricted the plaintiff’s evidence of a nuisance to the 24 hour period the residents were separated from their home.
Beckett v. Warren, 124 Ohio St. 3d 256, 2010-Ohio-4, 921 N.E.2d 624
Negligence; Dog-Bite
A child was bitten on the head by a dog. The child’s mother filed suit against the owners of the dog. The suit involved three claims: one claim for damages under R.C. 955.28 and two common law negligence claims. The trial court required the plaintiff to choose between pursuing either the common law or statutory remedy. The court of appeals held that a party could simultaneously pursue claims under common law negligence and R.C. 955.28.
The Supreme Court held that “a plaintiff may, in the same case, pursue a claim for a dog bite injury under both R.C. 955.28 and common law negligence.”
Berry v. Javitch, Block, & Rathbone, L.L.P., 2010 Ohio 5772
Settlement Agreement; Fraud in the Inducement
Plaintiffs filed a legal malpractice action against defendant law firm. Plaintiffs and defendants negotiated a settlement agreement. Plaintiffs were represented by counsel, and agreed to dismiss with prejudice all claims against the individual attorneys and provide a full release of claims against them. The dismissal was to be held and not filed until defendant law firm completed installment payments or until a settlement agreement was reached with the insurance company. After the parties executed the judgment, plaintiff filed an action alleging fraudulent misrepresentation, fraudulent concealment, gross negligent misrepresentation, and gross negligent concealment.
The issue for the Ohio Supreme Court to resolve was “[w]hen parties to a tort claim have executed a settlement agreement and consent judgment entry, may one party subsequently institute a separate cause of action for fraud in the inducement of the settlement agreement without seeking relief from the consent judgment and rescinding the settlement agreement?” The Court answered this issue in the negative. The Court found that the proper method of relief was through Ohio Civ. R. 60(B). Thus, the Court reversed the judgment of the court of appeals.
Erwin v. Bryan, 125 Ohio St. 3d 519, 2010-Ohio-2202, 929 N.E.2d 1019
Procedure; Unknown Defendants/Ohio Civil Rule 15(D)
A plaintiff filed a wrongful death suit for her husband against several unknown defendants pursuant to Ohio Civ. R. 15(D). The plaintiff identified one of the defendants outside the statute of limitations period. To use the rule, the Ohio Supreme Court interpreted Civ. R. 15(D) to require that the plaintiff: does not know the name of the defendant; the complaint states that the defendant’s name is unknown; the complaint describes the unknown defendant sufficiently that the summons can be served on the unknown defendant; and the summons state that the defendant’s name is unknown. The Court reasoned that the plaintiff’s use of the rule was improper because she knew the name of the defendant by virtue of her employment in the hospital and she recognized the defendant when he provided care to her husband.
The Court also decided that Civ. R. 15(D) does not allow a plaintiff to amend the complaint and identify a defendant outside the statute of limitations period. Thus a plaintiff who has unknown defendants in her case must identify the defendants before the statute of limitations period runs.
Estate of Heintzelman v. Air Experts, Inc., 126 Ohio St. 3d 138, 2010-Ohio-3264, 931 N.E.2d 548
Judgment Not Binding on Party When Insurer Did Not Join as a Party in Declaratory Judgment Action
A company installed an air conditioner in a couple’s home. The air conditioner malfunctioned several times. After attempting to get the air conditioner fixed through another company, the husband was electrocuted when he was trying to repair it. The husband’s estate sued the original company that installed the air conditioner and the subsequent company that attempted to repair it for wrongful death and negligent infliction of emotional stress. Pending the case, the original company’s insurer obtained a separate declaratory judgment action against the company that declared it had no duty to provide coverage for the insured. After the husband’s estate prevailed on its claims in a jury trial it filed a supplemental complaint against the company’s insurer pursuant to Ohio R.C. 3929.06, which allows successful plaintiffs to file post-judgment suits against a tortfeasor’s insurer seeking payment. The trial court granted the insurer’s motion for summary judgment holding that pursuant to Ohio R.C. 3929.06, the husband’s estate was bound by the declaratory judgment even though it was not a party to the action.
The appellate court reversed. It held that the declaratory judgment between the insured and insurer is binding upon the plaintiff in an Ohio R.C. 3929.06 action only if the declaratory judgment action was initiated by the insured or if the plaintiff participated in the declaratory judgment action. The Ohio Supreme Court affirmed. It reasoned that the language of R.C. 3929.06 specifically states that the judgment is binding only if the holder of the policy commences an action against the insurer. Thus, because the insurer commenced the action and the plaintiffs were not involved in the action, the judgment was not binding. It also reasoned that the judgment was not binding pursuant to Ohio R.C. 2721.02 and 2721.12 because under the statute, for a judgment to be binding, the holder of the policy must file suit and all interested parties must be made parties to the action.
Jaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838, 928 N.E.2d 434
Collateral Source Rule; Write Offs
Plaintiff was involved in an auto accident with the defendant. Some of the plaintiff’s medical providers accepted a reduced payment from the plaintiff’s insurance company. The defendant argued that these write-offs should be introduced into evidence for damages and its introduction was not precluded by Ohio R.C. §2315.20.
Ohio R.C. §2315.20 states that evidence of collateral benefits is admissible unless the source of the payment has a contractual right of subrogation. This subrogation exception will generally prevent defendants from offering evidence of insurance coverage for a plaintiff’s injury. The Ohio Supreme Court found that evidence of write-offs is not precluded by R.C. §2315.20. Instead, Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362 controls, which specifies that defendants can present evidence to rebut the reasonableness of a medical charge. Thus under Robinson, defendants are allowed to show evidence of write-offs in determining the reasonableness of a medical bill.
Kincaid v. Erie Ins. Co., 2010-Ohio-6306, slip opinion.
Standing
Without first notifying defendant of expenses or requesting reimbursement, plaintiff filed suit alleging that defendant failed to compensate and reimburse him for expenses including postage, travel expenses, and actual loss of earnings that he incurred during Erie’s defense of his liability claim. The trial court granted defendant’s motion for judgment on the pleadings. The court of appeals affirmed the dismissal of the claim for unjust enrichment, but reversed the dismissal of the claims for breach of contract and bad faith and for declaratory relief, concluding that plaintiff’s policy did not require that he notify defendant of his expenses prior to filing a lawsuit demanding reimbursement.
In a 4-3 decision, the Supreme Court reversed the appellate court, holding that plaintiff did not have standing because there was no justiciable controversy—only a possible future dispute. Because Erie was not advised of plaintiff’s claim and has not refused to pay, there is no dispute and therefore can be no claim for breach of contract or for bad faith grounded in wrongful refusal to pay. The Supreme Court concluded that until a claim has been denied, there is no actual controversy and the insured has no injury for breach of contract. What was really being sought in this case was an advisory opinion on whether an insured is entitled to insurance coverage, which a court may not issue.
Neal-Pettit v. Lahman, 125 Ohio St. 3d 327, 2010-Ohio-1829, 928 N.E.2d 421
Punitive Damages; Attorney Fees
A man was involved in an automotive crash and was injured. The driver of the other car was intoxicated and was fleeing the scene of an earlier collision. A jury awarded the man compensatory damages, punitive damages, and attorney fees against the other driver. The driver’s insurer paid the compensatory damages but denied payment of the punitive damages and attorney fees because the policy specifically excluded payment of punitive damages. The injured man filed suit against the driver’s insurer for payment of the attorney fees. The insurer argued that it was not liable to pay the attorney fees because the policy specifically excluded payment of punitive damages, the policy stated it would only pay damages arising from bodily injuries, and payment of punitive damages was against public policy.
The Ohio Supreme Court found that the policy’s exclusions for payment of punitive damages did not include attorney fees. It held that attorney fees are distinct from punitive damages. Public policy does not prevent an insurance company from covering attorney fees on behalf of an insured, even when they are awarded solely as a result of an award for punitive damages. Further, the Court held that payment of attorneys’ fees is not against public policy or prohibited by Ohio R.C. §3937.182(B).
Pennsylvania Gen. Ins. Co. v. Park-Ohio Indus., 126 Ohio St. 3d 98, 2010-Ohio-2745, 930 N.E.2d 800
Equitable Contribution Among Multiple Insurers; Failure to Notify Non-Targeted Insurers of Claim
A company was sued for asbestos related injuries. After the company settled the suit, it sought a declaratory judgment that its insurer, Penn General, owed indemnification for the claim. A year later, the company notified Penn General for the first time that other insurance policies existed for the claim. Penn General then filed the present action against several insurers seeking equitable contribution for the claim. The defendant insurers argued that they have no obligation for contribution because they were not timely notified of the claim. Penn General argued that the company’s failure to comply with the contract between the two parties should not defeat its contribution claim.
The Ohio Supreme Court declined to overrule Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 2002-Ohio-2842, and continued to follow the “all-sums” method of allocation. The all-sums approach allows an insured to seek full coverage for its claims from any single policy, out of the group of policies that has been triggered. Once the insured selects an insurer (targeted insurer) to obtain judgment, the targeted insurer is then able to file a later action against any other insurers (non-targeted insurers) to obtain contribution. The Court held that when the targeted insurer requests information from the insured regarding other policies that may also cover the claim, the insured has a duty to cooperate by identifying those policies. However, in the event that a non-targeted insurer is not timely notified of a claim, a targeted insurer’s contribution claim against the non-targeted insurer will be barred only if the failure to notify resulted in prejudice to the non-targeted insurer. The Court found that the other defendants were not prejudiced in this case because the delay occurred while the two companies moved through the all-sums procedure and the settlement was reasonable.
Pettiford v. Aggarwal, 126 Ohio St. 3d 413, 2010-Ohio-3237, 934 N.E.2d 913
Expert Affidavit That Contradicts Prior Deposition Does Not Create Factual Issue to Prevent Summary Judgment
A woman sued her doctor alleging that he negligently failed to detect a benign tumor in her lung. The plaintiff hired an expert witness to testify in support of her claim. During the expert’s deposition, he testified that he did not have an opinion whether the doctor’s act caused the plaintiff’s injuries. In response to the defendant’s motion for summary judgment, the plaintiff submitted an affidavit signed by the expert stating that the defendant’s act caused the plaintiff’s injuries. The trial court granted the defendant’s motion. The appeals court reversed and reasoned that the affidavit could create a factual issue sufficient to preclude summary judgment because the Ohio Supreme Court’s decision in Byrd v. Smith, 110 Ohio St.3d 47 only addressed contradictions made by affidavits submitted by self-interested parties in a case.
The Ohio Supreme Court reversed. It held that when the affidavit of a retained nonparty expert is submitted in opposition to a pending motion for summary judgment, and statements in the affidavit contradict testimony given by the same expert during a prior deposition, the affidavit does not create a “genuine issue of material fact” that prevents summary judgment. The Court found the rule of Byrd applied because the retained expert of a party has a close working relationship with the client and the client’s attorney. Thus, an affidavit that contradicts prior testimony will not prevent summary judgment unless the expert sufficiently explains the reason for the contradiction.
Pratte v. Stewart, 125 Ohio St. 3d 473, 2010-Ohio-1860, 929 N.E.2d 415
Statute of Limitations; Sexual Abuse
Plaintiff filed a lawsuit against defendant claiming that he had sexually abused her three times as a child. Plaintiff was thirty-three years old at the time she remembered these events. The Ohio Supreme Court found that the statute of limitations, Ohio R.C.§2305.11 applies to civil action arising from sexual abuse prior to the effective date of that statute. The court also found that a cause of action brought by a victim of childhood sexual abuse accrues upon the date on which the victim reaches the age of majority. Finally the court decided that §2305.11(C) does not contain a tolling provision for repressed memories of childhood sexual abuse.
Allstate Ins. Co. v. Eyster, 2010-Ohio-3673 (3rd District)
Liability Exclusion Applied to Exclude Claim When Defendant Was a Resident Relative
The plaintiff insurer filed a complaint for declaratory judgment against the defendant insured individuals stating that it provided personal liability automobile insurance coverage to the defendants through an insurance policy issued to them. The complaint stated that the first defendant was the father of the second and third defendant, and the first and the fourth defendant resided together. The complaint also stated that the second defendant had negligently operated an automobile resulting in bodily injury to the third defendant, who was a passenger in the vehicle. The third defendant sought recovery for her injuries from the second defendant as a result of the accident. The second defendant demanded that the plaintiff indemnify her against the third defendant's claim on the basis that such indemnification was required by the liability coverage under the policy.
The plaintiff asserted that the policy excluded liability coverage for bodily injury to any person related to an insured person by blood, marriage, or adoption and residing in that person’s household. The appellate court concluded that the plain language of the policy excluded liability coverage for the injuries sustained to a resident relative of an insured person. Also, the first and fourth defendants were both an insured person under the policy and the third defendant was a resident relative of the first and fourth defendants. Thus, the liability exclusion applied to exclude the third defendant's injury claim against the second defendant from liability coverage under the policy.
Black v. Richards, 2010-Ohio-2938 (5th District)
Home Owner’s Insurance Policy Exclusion For Intentional Acts
Two teenagers started a fire that damaged several of the plaintiff’s buildings. The plaintiff sued the teenagers and their parents for the damage. The teenagers were covered under their parent’s homeowner’s insurance policies and the insurance companies sought a declaratory judgment that it had no duty to defend or indemnify the teenagers. The trial court granted the insurance companies motion for summary judgment.
The appellate court affirmed the trial court’s ruling regarding the first insurance company. The insurer’s duty to defend or indemnify was not required because intentional acts were excluded under the policy’s “occurrence” provision. Thus, no coverage existed because from the perspective of the juvenile the fire was intentional. The court also affirmed summary judgment for the second insurance company. The court rejected the plaintiff’s argument that coverage existed because of the juvenile’s negligence in failing to fully put out the fire. Instead, it reasoned that the intentional act of setting the fire was causally related to the subsequent damage and the casual connection was not broken by the negligence in failing to put out the fire.
Cincinnati Ins. Co. v. Oblates of St. Francis de Sales, Inc., 2010-Ohio-4382 (6th District)
Archdiocese Not Entitled to Indemnification When Substantially Certain to Know
Insurer filed a complaint seeking declaratory judgment regarding its obligations to defend or indemnify Appellant Archdiocese. A priest had allegedly sexually abused claimant, and asserted that the religious organization had failed to supervise the priest and had failed to disclose the priest’s history of pedophilia to the parish members. Appellant lent money to the organization to settle with claimant.
According to Doe v. Shaffer (2000), 90 Ohio St.3d 388, 393, negligent hiring related to sexual molestation could constitute an occurrence and afford coverage. In order for appellant to be indemnified for damages it paid to claimants, the events that caused claimant’s injuries must have been caused by continuous or repeated exposure to conditions which were not expected or intended by the organization to cause such injuries. The appellate court concluded that the organization was substantially certain that the priest could continue to sexually assault boys based on prior history and his need for ongoing treatment. Therefore, the injury to claimant was expected and could not be considered accidental.
Clonch v. State Farm Mut. Auto. Ins. Co., 187 Ohio App. 3d 570, 2010-Ohio-2252, 932 N.E.2d 975 (6th District)
Coverage Existed For Driver Under Owner’s Policy Because He Was Acting as the Owner’s Agent
A girl was injured when a driver of a car failed to stop at a stop sign. The girl filed suit against the driver, the owner of the car, and the insurance company for both the driver and the owner. The insurance company denied coverage for both because the driver of the car did not own the vehicle and the vehicle’s owner was not driving.
The appellate court found that coverage existed for the girl’s injuries. It reasoned that owner’s policy covered the injuries because the owner had the right to control the vehicle and the driver was acting as her agent. The driver was acting as the owner’s agent because the two were living together, the driver had driven the vehicle previously, and the driver had his own set of keys to the vehicle.
Currier v. Penn-Ohio Logistics, 186 Ohio App. 3d 249, 2010-Ohio-195, 927 N.E.2d 604, (11th District)
No Coverage to Corporation That Leased Property to Employer
A man sustained injuries that ultimately resulted in his death. The complex where the man died was purchased by the defendant corporation. Plaintiff administrator of the decedent’s estate filed suit against the defendant corporation and the defendant employer. An insurance company intervened for a determination that it had no duty to defend or indemnify either defendant. “Additional insured” coverage only provides coverage for vicarious liability claims and not for independent claims of negligence. Thus, the court granted the summary judgment motion of the intervening plaintiff.
Eiben v. Grange Mut. Cas. Co., 2010-Ohio-1673 (8th District)
Insurance Coverage; No Coverage For Loss of Stolen Property at Worksite
The plaintiff bought a house at a sheriff’s sale. Later, thieves broke into the unoccupied house and stole the plaintiff’s construction materials. The plaintiff had an insurance policy that covered his primary residence and sued his insurer for the loss of his personal property in the unoccupied house. The insurance company refused to cover the loss of property at the unoccupied house.
The appellate court found that the unoccupied house was not covered under the policy. It reasoned that the policy specifically excluded coverage for the loss of property that was located in a dwelling under construction or a theft that occurred away from the plaintiff’s home unless the plaintiff was temporarily residing there.
Fenikile v. Powell, 2010-Ohio-5644 (6th District)
Proper Adjuster Sent to Pretrial Settlement Conference, Sanction Declared Too Harsh
The appellees filed a complaint against the appellant for injuries they sustained in an automobile accident in which the appellant's vehicle struck the appellees' vehicle. The appellant had a policy of insurance with an insurance company. The insurance company sent an adjuster to the pretrial settlement conference. At that conference, the trial court rendered a default judgment in favor of the appellees. The court reasoned that the adjuster who was sent did not have prior knowledge of the case and was not the adjuster assigned by the court. Thus, meaningful settlement discussion could not take place. As a result of the company's failure to send the assigned adjuster to the settlement pretrial, the trial court held the appellant in contempt of its order, which provided settlement pretrial with all trial counsel present, and ordered that the appellant's answer be stricken, resulting in a default judgment, and scheduled the matter for hearing on damages.
The appellate court agreed with the appellant and reversed the decision, finding that the trial court abused its discretion in striking the appellant's answer. There was no evidence in the record that the adjuster present at the settlement pretrial did not satisfy the purpose underlying the trial court's requirement that the assigned adjuster be present. There was no evidence that the adjuster present did not have full settlement authority and was not sufficiently familiar with the case to permit the parties to move forward with settlement discussion. Additionally, absent a record, the trial court abused its discretion in imposing so harsh and severe a sanction as the one imposed. Accordingly, the judgment was reversed and remanded.
Frazier v. American Family Ins. Co., 2010-Ohio-3733 (8th District)
Arbitration Favored When Ambiguous Language Exists in an Insurance Policy
The defendant insurer denied the plaintiff’s claim for fire loss under a home-owner’s policy of insurance and plaintiff subsequently filed a complaint. Plaintiff then filed a combined motion for declaratory relief and to compel arbitration. The trial court granted the motion and referred the matter to arbitration. The arbitration provision read as follows: “In making a claim under the property coverages, if you or we cannot agree as to the amount of liability the controversy may be settled by arbitration.” Defendant insurer claimed that the provision applied only to the amount of liability under the property damage section of the policy. Plaintiff claimed that the policy can permit arbitration of disputes over coverage and damages.
The court agreed with the plaintiff that the policy could be read to permit arbitration of disputes over coverage and damages. Considering the policy favoring arbitration and construing contract language against the drafter, the court found that the trial court properly compelled arbitration in the instant matter.
Imhoff v. Encompass Ins., 2010-Ohio-2760 (5th District)
Homeowner’s Policy Exclusion; Physical and Sexual Assaults
An elderly man suffered from Alzheimer’s, dementia, and depression. Residents of a nursing home sued the man alleging that he had physically and sexually assaulted them. The man’s homeowner’s insurer denied coverage for the injuries and to defend the man in the suit based on exclusions in the policy. The executor of the man’s estate then sued the insurer for reimbursement of the legal expenses incurred in defending the case.
The trial court granted the executor’s motion for summary judgment and found the insurer had a duty to defend the man in the sexual assault suit. The appellate court reversed. It found that the policy was unambiguous and the exclusion specifically denied coverage for the man’s alleged actions. The policy clearly stated that the parties could not expect coverage for intentional torts or criminal acts.
Konik v. Motorists Mut. Ins. Co., 2010-Ohio-1452 (11th District)
Insurance Coverage; Dog Bite
A neighbor’s dog bit a child while the child was spending the night at the homeowner neighbor’s house. The mother’s child sued the homeowner’s insurance company for coverage. The trial court found that no coverage existed for the bite because the homeowner did not meet the requirements specified in the policy for vicious dogs. The appellate court reversed because one of the requirements in the policy, “premises” was ambiguous. Thus because the language in the policy was susceptible to more than one interpretation, the court concluded the matter could not be dismissed on summary judgment.
Niemeyer v. Western Reserve Mut. Cas. Co., 2010-Ohio-1710 (3rd District)
Bus Excluded Under Policy; Livery Conveyance Exclusion
A bus carrying a baseball team crashed and injured many of its occupants. The driver of the bus was killed in the accident. The driver had an auto policy that generally excluded injuries arising out of the insured’s auto business. However the policy allowed coverage for other business purposes as long as the vehicle was not being used as a livery conveyance.
The trial court found that no coverage existed because the bus was not an “auto” as defined by the policy. The appellate court also found that no coverage existed under the policy. However, it reasoned that no coverage existed because the charter bus was being used as a “livery conveyance”. The bus was being used as a livery conveyance because it was held out to the general public as being able to be hired or rented for private use.
Novak v. State Farm Ins. Co., 2009-Ohio-6952 (9th District)
Insurance Policy Language; Settlement Without Insurer’s Consent
A woman’s condo was damaged when a pipe in her neighbor’s house burst. She filed suit against the neighbor as well as the condominium association. The association had a policy with the defendant insurer and it provided a defense for the association but not for the neighbor. The neighbor consented to settle the case with the woman but he did not receive consent from the insurer for the settlement.
The appellate court found that the insurer was not obligated to the settlement agreement. It reasoned the insurer was not obligated because the neighbor breached the agreement by consenting to settlement without the insurer’s approval. The neighbor also breached the agreement because he did not inform the insurer of possible settlement negotiations and he did not try to include the insurer in the agreement.
Pugh v. Ned Peppers, 2010-Ohio-1917 (2nd District)
Bodily Injury Exclusion Precluded Coverage
A bar’s bouncers physically assaulted two state agents in a bar. The agents sued the defendants, and the defendants filed a third party complaint against the plaintiff insurance company seeking coverage. The appellate court found that the insurance policy did not provide any coverage to the state agents’ injuries. Even if the state agents were defending themselves, the court found that their injuries would have been excluded from coverage under the exclusion for bodily injury or property damage.
Stallings v. Safe Auto Ins. Co., 2010-Ohio-677 (8th District)
Insurance Policy Interpretation; Parol Evidence Regarding Intentions of Parties Inadmissible
Plaintiff’s mother sued her insurance company because it did not provide coverage for her 15‑year-old son. The insurance company argued that the son was not covered because he was specifically excluded under the contract. The appellate court upheld the trial court’s grant of summary judgment for the insurance company. It reasoned that the four corners of the contract clearly and unambiguously listed the son as an excluded person. Since the contract clearly addressed the contested point, the mother could not introduce other evidence of her intent when she entered into the contract.
Trautman v. Union Ins. Co., 2010-Ohio-1504 (3rd District)
Insurance Policy Interpretation; Water Backup Loss
A large amount of rain caused damage to the plaintiff’s business. Her insurer paid her property damage claim but denied coverage for loss of business income because it argued that the income loss resulting from water back-up was excluded under the policy. The plaintiff argued the loss was covered under the additional endorsement she purchased, “Water Back-up and Sump Overflow.”
The appellate court found that the water back-up endorsement covered the plaintiff’s loss. The court found that although the original policy excluded the plaintiff’s claim, the endorsement changed the policy and covered the plaintiff’s loss. Also the court found that because the policy did not clearly exclude coverage for her claim of loss and extra expenses relating to that loss, the damage was covered under the policy.
Univ. Hosp. Health Sys. v. Total Technical Serv., Inc., 2010-Ohio-2606 (8th District)
Policy Coverage For Injuries of Business Invitees
A man was attending classes at a company when he injured his back. The man’s insurer paid his medical bills for the injury. Then the man’s insurer sued the company’s insurer for reimbursement of the medical bills under the policy’s no-fault medical payment clause. The trial court granted the defendant insurer’s motion for summary judgment reasoning that no coverage existed because the individual was not a named insured under the policy nor was he an intended third party beneficiary.
The appellate court affirmed. Firstly, it reasoned that no coverage existed because the man was not a named insured under the policy and the policy did not cover injuries of business invitees. Further, the plaintiff failed to provide evidence that the man was in fact its insured and that he incurred medical expenses related to being injured at the company that were actually paid by the plaintiff.
Westfield Ins. Co. v. R.L. Diorio Custom Homes, Inc., 187 Ohio App. 3d 377, 2010-Ohio-1007, 932 N.E.2d 369 (12th District)Commercial Insurance; No Duty to Defend or Indemnify For Poor Workmanship
A corporation was sued regarding its construction of a home on the basis the work was not performed in a workmanlike and timely manner. The corporation’s insurer defended the corporation in the suit. Later the insurer sought a declaration that it did not have to defend the corporation because no coverage existed for the claim.
The appellate court held that the insurer was not required to defend the corporation. It reasoned that the policy did not insure against claims for defective or negligent workmanship. The policy was only intended to cover risks of the insured causing damage to others and others’ property, but not to insure the work itself. The claims for faulty workmanship and delays in construction fitted within the precluded coverage of business risks.
Yates v. Estate of Ferguson, 2010-Ohio-892 (1st District)
Excess Insurer, Indemnification, Auto Accident
The defendant was the driver of a vehicle in which the plaintiff was a passenger. After being injured in an accident, the plaintiff sued the defendant driver, his insurer and the vehicle owner’s insurer. About a year later, the plaintiff later voluntarily dismissed her suit, and refiled it four months subsequent. Both the defendant insurers filed competing motions for summary judgment with the trial court, each asking the trial court to declare which insurance company had the primary duty to represent the defendant. The trial court granted summary judgment to the defendant vehicle owner’s insurer, finding that the defendant driver’s insurer had the primary defense responsibility. The appellate court held that generally the policy having a pro rata clause would pay first until its limits were exhausted and then the policy with the excess clause took effect to pay the remainder. However, under the timeline of the first lawsuit, the defendant driver’s insurer voluntarily assumed and did not tender the defense until approximately nine and one-half months after the complaint was filed and therefore, was not entitled to indemnification for defense in the first lawsuit. Conversely, the defendant driver’s insurer tendered its defense approximately one week after the filing of the second lawsuit, before any responsive pleading was filed and therefore, it was entitled to indemnification on the second lawsuit defense. Accordingly, the judgment was affirmed in part and reversed in part.
Barbee v. Allstate Ins. Co., 2010-Ohio-2016 (9th District)
Contractual Limitation For Bringing UIM Claim Unenforceable
The plaintiff was injured when two cars involved in an earlier accident drifted over and collided with the plaintiff’s automobile. Because one of the drivers was in the military, the plaintiff sued him and the other driver in federal court. Several years later, the plaintiff brought an action against his insurance company because he had underinsured motorist’s coverage that was greater than the military driver’s liability coverage. The insurance company argued the plaintiff’s claim was barred by the policy’s limitations for claims.
The appellate court affirmed the trial court’s grant of summary judgment for the plaintiff. First, it construed the contractual limitation on the policy’s claims in the light most favorable to the plaintiff because it was ambiguous. Secondly, the court found that the claim was not barred by res judicata because the plaintiffs could not have made their claims for underinsurance benefits in the federal case.
Bossin v. Groves, 2010-Ohio-664 (8th District)
Presumption of Offer; Court’s Determination
Plaintiff, who was in an accident, was an employee of the insured Viacom. Plaintiff sued the insurer of his employer, Travelers. Viacom signed a rejection of UM/UIM coverage, and the rejection letter was delivered. Under R.C. 3937.18, a signed rejection of UM/UIM coverage created a presumption that a valid offer of coverage had been made. The Ohio Supreme Court has recognized, however, that under the statute a court might still make a determination of whether a valid offer of UM/UIM coverage was, in fact, made. The holding company had executed a valid rejection of UM/UIM coverage and plaintiff was not entitled to coverage.
D’Ambrosia v. Hensinger, 2010-Ohio-1767 (10th District)
2 Year Contractual Limitation For Filing UIM Claim Upheld
The plaintiff was a passenger in a vehicle that was struck by an individual’s vehicle. The plaintiff had an insurance policy that included uninsured/underinsured motorists. The plaintiff filed suit against the individual and then amended her complaint to assert a claim for UM/UIM coverage against her insurance company. The appellate court affirmed the trial court’s grant of summary judgment for the insurance company. It reasoned that the plaintiff’s suit was barred because it exceeded the two-year contractual limitation specified in the policy. The limitations period was not tolled because the plaintiff offered no explanation as to why it took longer than two years to file her action or why it took her so long to determine the individual’s uninsured status.
Gilliland v. Nationwide Prop. & Cas. Ins. Co., 188 Ohio App.3d 621, 2010-Ohio-2512, 936 N.E.2d 524 (4th District)
Policy Coverage; Medical Providers Lien Did Not Reduce Available UIM Coverage
The plaintiff was injured in an automobile accident. The plaintiff filed suit against the driver of the other car, the driver’s insurer, and the plaintiff’s insurer under his underinsured motorists policy. Both parties agreed that the liability limit of the driver’s insurance policy was equal to the plaintiff’s underinsured motorist policy. Thus, absent some liability that reduced the amount available for payment, the plaintiff’s underinsured policy would not be triggered because it was set off completely by the driver’s policy. The trial court relied on Rucker v. Davis, Ross. App. No. 02CA2670, 2003-Ohio-3192 and found that the medical provider’s lien reduced the amount available for payment to the plaintiff and thus the plaintiff could recover under his underinsured motorist policy.
The appellate court overturned Rucker and found that the medical provider’s lien did not reduce the amount available for payment. The court reasoned that if it found that the medical provider’s lien was an expense of the insured, the plaintiff would be given a windfall. Thus the court agreed with the defendant and found that the medical provider’s lien did not reduce the amount available.
Kirshner v. Nieves, 2010-Ohio-2625 (6th District)
Two Insurers Proportionately Liable When Policy Covers Same Risk, Contains Proportionately Provision
A passenger and an operator of a vehicle were killed when the defendant ran a red light at an intersection and struck them. The defendant and the car she was driving were uninsured. Both the passenger’s and the operator’s insurers had paid the policy limits of their uninsured motorist coverage to their respective insureds. The executor of the passenger’s estate then sued the operator’s insurance company seeking additional UM coverage for the passenger. The trial court granted the operator’s insurer’s motion for summary judgment that it did not owe the passenger any coverage.
The appellate court reversed. It found that both insurers’ policies provided UM coverage as excess only, covered the same risk, and contained a proportionately provision. Thus, the rule of Buckeye Union Ins. Co. v. State Auto Mut. Ins. Co. (1977), 49 Ohio St.2d 213, applied and required that both insurers become liable in proportion to their respective coverage limits. This method guarantees that the insured will be entitled to the maximum amount of coverage afforded by each policy.
Rhoades v. State Farm Fire & Cas., Co., 2010-Ohio-4629 (5th District)
Judgment as a Matter of Law, No UIM Coverage When Insured Had Notice
The plaintiff individual was insured under two policies issued by the defendant company's affiliated insurer. The plaintiff and his wife were in an accident in which she was killed. The plaintiff then settled his claims with the under-insured tortfeasor and his own primary under-insured motorist insurer. The plaintiff made an additional UM/UIM coverage under his personal umbrella liability policy issued by the defendant. The plaintiff, individually and as the administrator of the decedent estate, filed an action against the defendant company and the defendant individual, claiming that the UM/UIM coverage arose under the personal liability policy by operation of law. Following extensive litigation, the trial court granted the defendant company's summary judgment, concluding that the plaintiff had specifically rejected UM/UIM coverage under the policy.
The original policy in the instant case did not include UM/UIM coverage due to a written rejection of such coverage at the outset. Therefore, the trial court did not err in granting summary judgment on the issue of UM/UIM coverage. Further, the plaintiff had not argued that his agent negligently failed to procure such coverage but rather that UM/UIM coverage should have been imposed by operation of law through failure to obtain an express rejection from the decedent. However, if the court were to find that no valid rejection existed as to the decedent, such coverage would have arisen by operation of law under the version of R.C. § 3937.18 in existence prior to S.B. 97. The policy renewals which occurred in 2002, 2003 and 2004 were issued under the S.B. 97 version of 3937.18 which no longer required an offer of UM/UIM coverage and further did away with the imposition of such coverage by operation of law. Additionally, the insurer included a notice with the last three renewals which advised the insured that he/she had chosen not to purchase uninsured motorists insurance, but could do so if the insured wished. This notice made clear to the insured that he or she did not have UIM coverage, effectively incorporating the provisions of S.B. 97 making the offer of UIM coverage permissive rather than mandatory. Therefore, S.B. 267 allowed the insurer to amend its policy to incorporate statutory changes and to incorporate S.B. 97 by making clear that the insured did not have UIM coverage. Consequently, the trial court decision was affirmed.
Selective Ins. Co. of America v. Arrowood Indem. Co., 2010-Ohio-557 (2nd District)
Act of Insured Co-Signing Did Not Bring Vehicle Under “Newly Acquired Vehicle” Coverage
An individual was involved in an automobile accident and injured another couple. The individual obtained financing for the vehicle by co-signing with his parents. The couple’s insurance company paid the uninsured motorist coverage and then sued the individual and his parent’s insurance company for reimbursement. The insurance company for the individual argued that no coverage existed because it was outside the terms of the insurance policy.
The trial court granted summary judgment to the plaintiff concluding that the individual’s parent’s policy provided coverage for the accident under the “newly acquired vehicle” provision in the policy. The appellate court reversed and found that co-signing on a vehicle for the purpose to obtain financing was not enough to make the co-signer the owner of the vehicle. Thus the vehicle did not fall under the “newly acquired vehicle” provision.
West American Ins. Co. v. State Farm Mut. Auto. Ins. Co., 2010-Ohio-6311
Passenger Did Not Qualify as “Insured”
An individual passenger was injured when an uninsured motorist struck the vehicle. The passenger's mother had an automobile insurance policy with the plaintiff company containing uninsured motorist coverage and the driver's vehicle was insured by the defendant company, which also provided uninsured motorist coverage. The passenger claimed uninsured motorist coverage under both policies. The defendant company denied the passenger's claim because it contended that she did not qualify as an insured under the uninsured motorist coverage of the policy. The plaintiff then filed suit against the defendant company and defendant individual to recover the monies it had paid in settlement of the passenger's uninsured motorist claim. The plaintiff subsequently moved for and was granted a default judgment against the defendant individual. Later, the trial court granted summary judgment to the plaintiff and denied the defendant company's motion for summary judgment.
The appellate court found that the defendant company's policy excluded from its definition of an insured any person who was insured for uninsured motorist coverage under another policy. The Ohio Supreme Court has unequivocally held that an automobile insurer may define the class of individuals who qualify as insureds. Because the plaintiff insured the passenger for uninsured motorist coverage, she did not qualify as an insured under the defendant company's policy. The plaintiff, as the passenger's subrogee, was not entitled to recover uninsured motorist coverage from the defendant company. The judgment was reversed.
Whitaker v. Jones, 2010-Ohio-668 (1st District)
Plaintiffs Not Required to Reimburse Insurer When Insurer Did Not Sue Plaintiff
Plaintiff was a car accident victim who sued the tortfeasor and plaintiff’s own UM/UIM insurer. The insurer filed a subrogation cross claim against the tortfeasor, but not a counter claim against the plaintiff. Plaintiff won, and the court directed plaintiff to reimburse the insurer for medical bills. The Court of Appeals held that the plaintiff could not be required to reimburse because the insurer did not file a counter claim against the plaintiff.
Cottrill v. Thermo Electron N. Am., L.L.C., 2010-Ohio-2238 (4th District)
Negligence Action Precluded; Workers Compensation
A corporation entered into a contract with an agency that provided temporary employees. One of the temporary employees was injured during her course of employment at the corporation’s facility. The employee sued the corporation alleging the exclusive remedy of Workers’ Compensation system did not protect the corporation because she was only an employee of the agency.
The appellate court found that the corporation was the plaintiff’s employer for the purposes of the Workers’ Compensation system. Thus, Ohio R.C. §4123.74 precluded liability on behalf of the corporation because it gave an exclusive remedy in Workers’ Compensation to injured employees. The corporation was the plaintiff’s employer because its agents trained the plaintiff, assigned the task to the plaintiff, and the temporary employer did not control the plaintiff’s tasks at all.
Klaus v. United Equity, Inc., 2010-Ohio-3549 (3rd District)
Miscommunication of Employees Did Not Rise to Level of Intentional Employee Tort
This case was remanded by the Ohio Supreme Court, which instructed the 3rd District to apply Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-1027 and Stetter v. R.J. Corman Derailment Servs., LLC, 2010-Ohio-1029. The plaintiff was injured while working for the defendant corporation. The injury resulted in his hand being amputated due to activation of the power by one of the defendant's employees. The plaintiff then filed a complaint against the defendant employer alleging an employer intentional tort as a result of the injuries he sustained. The court found that there was nothing demonstrating that the defendant employer committed a tortious act with the specific intent to injure the plaintiff. Rather, the plaintiff's injury was the result of a miscommunication between the defendant's employees, an unfortunate accident, but not an employer intentional tort.
Taylor v. Belmont Cmty. Hosp., 2010-Ohio-3986 (7th District)
Limiting Vicarious Liability of Hospital
The plaintiff arrived at the defendant hospital after injuring her knee. She was x-rayed and allegedly released prematurely by a physician, and while being transferred in a wheelchair, two nurses dropped her. Two surgeries and long-time nursing care were required thereafter.
The defendant successfully moved for summary judgment, alleging that a hospital could not commit medical malpractice, and was not vicariously liable unless its agents were primarily liable. The defendant also contended that the defendant's agents were not liable because they were never sued, relying on National Union Fire Ins. Co. of Pittsburgh, P.A. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601. The appellate court found that Wuerth was inapplicable since, as to the partner in Wuerth, his relationship with the law-firm was not that of employer-employee. Rather, each partner was a part owner. Thus, Wuerth was wholly distinguishable from the traditional employer-employee relationship existing in the instant case.
Wagner v. Ohio State Univ. Med. Ctr., 188 Ohio App. 3d 65, 2010-Ohio-2561, 934 N.E.2d 394 (10th District)
Liability of Hospital For Doctors; Negligent Retention; Apparent Authority Agency Theory
A man was being treated for chronic pancreatitis at a medical center. During the man’s treatment, a physician conducting research received permission by the man to withdraw a spinal fluid sample. Instead of withdrawing spinal fluid, he withdrew morphine from the plaintiff’s pump to feed his own drug habit. The physician had previously stole medicine from patients and the center revoked the doctor’s license but continued to allow him to conduct research at the facility. The plaintiff sued the medical center under vicariously liability and negligent retention theories.
The appellate court overturned the trial court’s grant of summary judgment for the defendant. It reasoned that an issue of fact remained regarding the plaintiff’s negligent retention claim because it was reasonably foreseeable that the physician would steal pain medicine from the plaintiff because of his behavior in the past. Further, the court found that an issue of fact remained if the center was vicariously liable for the physician because he was the center’s agent. The plaintiff had introduced evidence that the physician was acting with apparent authority of the center as a faculty member when he misrepresented an intention to conduct research on behalf of the center.
Chovan v. Dehoff Agency, Inc., 2010-Ohio-1646 (5th District)
Duties Owed to Licensees; Definition of Invitee Does Not Include Employee on Leased Property
A woman fell on a rut in the asphalt when she was walking to lunch. She was working at a facility rented out by her employer. The woman sued the owner of the facility alleging negligence. The appellate court held that the woman was a licensee on the premises. The woman was a licensee because, although she received a direct benefit by being on the premises through her employment, the landlord received a direct benefit only from her employer who paid rent and not directly from the woman herself. Therefore, the landlord was not liable because there was no evidence of willful, wanton, or malicious conduct. Also the court found that the rut was open and obvious such that the woman should have discovered its existence on her own.
Crossman v. Smith Clinic, 2010-Ohio-3552 (3rd District)
Open and Obvious Danger, Snow Covered Parking Lot, No Evidence Defendant Was Aware
The plaintiff fell in a parking lot, which was covered with snow, and her knee struck a manhole cover before she entered the defendant's clinic. Later, the plaintiff filed a complaint against the defendant. The defendant successfully filed a motion for summary judgment. The appellate court determined that the plaintiff's testimony indicated that she was not completely sure what caused her fall and failed to establish the duty element of her claim. The snow and existence of the curb were open and obvious hazards, of which the plaintiff was aware. Further, she failed to establish that the drainage depression was significantly dangerous or that the defendant had superior knowledge of the conditions in the parking lot. Plaintiff failed to present any contrasting measurements or photos of other drains to substantiate her claim, nor did she present any evidence of what constituted a reasonable drainage depression or how much of a deviation from a standard would be considered dangerous. Plaintiff also failed to present evidence that the defendant was aware of any such dangerous condition, and the decision was affirmed.
Hartman v. Meijer Stores LP, 2010-Ohio-5311 (12th District)
Defendant Store Not Liable When Store Had no Knowledge of Condition
The plaintiff wife was struck in the head, neck, and shoulder when the picture frames in the defendant store fell from the top-shelf and landed on her. The defendant filed a motion for summary judgment, arguing that the plaintiff's claims were barred by the open and obvious doctrine. It also stated that it had no notice of the instability of the frames on the top shelf. The trial court granted summary judgment to the defendant, finding that it had not breached its duty. The appellate court concluded that the plaintiffs failed to provide any evidence to suggest that the defendant had actual notice of the possibility that the frames could fall from the top shelf. Also, the plaintiffs stated that they were unaware of any of the defendant's employees being in or near the aisle where the picture frames were located and they were also unable to state when the defendant's employee was last near the picture frame aisle. Thus, the defendant had no knowledge that the picture frame could create a hazard. Consequently, the trial court did not err in granting the defendant's motion. The judgment was affirmed.
Hill v. Western Reserve Catering Ltd., 2010-Ohio-2896 (8th District)
Ramp and Darkness Were Open and Obvious
The plaintiff fell down a ramp and sustained injuries at the defendant’s restaurant. The plaintiff sued alleging that the defendant’s negligence directly and proximately caused her injuries. The trial court granted summary judgment to the defendant holding that the ramp was an open and obvious condition. The court of appeals affirmed. It reasoned that the fact the steps were dimly lit and uniform in color went only to the visibility of the steps but did not negate the obviousness of the hazard. The court found that darkness is always a warning of danger and it can never be discarded. Thus, the open and obvious nature of the darkness negated the defendant’s duty to warn of the ramp.
Hissong v. Miller, 186 Ohio App. 3d 345, 2010-Ohio-961, 927 N.E.2d 1161 (2nd District)
Open and Obvious; Step-in-the-Dark Rule; Retail Store
A customer visited defendant’s footwear store and asked to use the restroom. Upon following the clerk’s instructions, the customer entered into a room that was completely dark and fell down stairs that descended immediately.
The appellate court found that summary judgment for the defendant was improper based on the fact that the stairs were an open and obvious hazard. It reasoned that it was the jury’s job to apply the community conscience in this matter and decide if the plaintiff should have watched where she stepped or if the clerk had a duty to warn the customer of the steps. Further, the court found that the step-in-the-dark rule, that provides that a plaintiff who intentionally steps into the dark without knowledge of what the darkness might conceal is guilty of contributory negligence, did not permit summary judgment for the defendant in this case. The court reasoned that the customer’s step into the dark was reasonable because the customer acted on the clerk’s instructions.
Johnson v. Regal Cinemas, Inc., 2010-Ohio-1761 (8th District)
Open and Obvious; Movie Theatre
Plaintiff fell in a movie theatre’s walkway while a movie was being played. Plaintiff alleged that the movie theatre did not properly notify her that the walkway changed from a ramp into stairs and that the walkway was poorly lit.
The appeals court upheld summary judgment for the movie theatre because the stairs and the darkness of the movie theatre were an open and obvious condition. Further the court found that the poor lighting, the crowded theater, and the consistent carpet pattern were not attendant circumstances because it is common for movie theaters to be dark and crowded and the plaintiff did not look at the carpet.
Mayle v. Ohio Dep't of Rehab. & Corr., 2010-Ohio-2774 (10th District)
Open and Obvious; Attendant Circumstances; Liability For Injuries of Prison Inmates
A prison inmate was injured when he was crossing on a detoured path. The path was made out of plywood boards that were covering an uneven grassy area. The plaintiff sued the Department of Corrections. The plaintiff alleged that because of the custodial relationship between the state and its prison inmates, the state had a duty to exercise reasonable care to prevent prisoners who are in its custody from being injured by dangerous conditions.
The appellate court found that the defendant did have a duty to protect the plaintiff but the defendant’s duty was removed because the dangers of the boards were an open and obvious hazard. The court determined the hazard was open and obvious because the boards were on uneven ground, the plaintiff had traversed the walkway previously, and nothing blocked the plaintiff’s view of the boards.
McDonald v. Martin, 2010-Ohio-5083 (10th District)
Verbal Warning of Broken Step Sufficient; Plumber’s First Hand Knowledge of Condition
The plaintiff was a plumber who the defendant asked to look at a sink in the basement. She warned him that one of the steps was broken. After several trips up and down the stairs, the broken stair gave causing the plaintiff to fall. The plaintiff along with his wife sued the defendant alleging negligence and loss of consortium. The trial court granted summary judgment in the defendant's favor concluding that the duty of care that the defendant owed to the plaintiff was to warn him of any potential dangers, which the defendant fulfilled and which plaintiff acknowledged. The plaintiff argued that the defendant's verbal warning was not sufficient to discharge her duty to warn him of a defective step on the staircase to her basement. The appellate court concluded that in addition to the plaintiff's acknowledgment of the defendant's warning, he also went up and down the stairs on more than one occasion, which meant that his knowledge regarding the potential hazard was perhaps close, if not equal, to the landowner's. The judgment was affirmed.
Mondi v. Stan Hywet Hall & Gardens, Inc., 2010-Ohio-2740 (9th District)
Open and Obvious; Rock Wall Pathway
A woman was walking through a display at the defendant’s facility when her foot struck a rock wall. She broke two toes. The woman sued the defendant alleging it breached its duties owed to her because it didn’t warn her of the hazard. The trial court granted the defendant’s motion for summary judgment because the danger was open and obvious. The appellate court affirmed. It reasoned the wall was an open and obvious hazard because the path was sufficiently wide enough to allow people to pass through and nothing blocked the woman’s view of the wall. Further, the natural rough texture of the rock wall along with the serpentine design of the walkway was an obvious danger that she would have seen had she looked.
Mullins v. Grosz, 2010-Ohio-3844 (10th District)
No Duty of Landlord to Install Handrail; Tenant Aware But Never Requested
The plaintiff filed a complaint seeking damages for injuries he sustained after falling off the porch of a home he rented from the defendant individual. The plaintiff alleged causes of action for common-law negligence and negligence per se arising from the defendant's failure to install a handrail or gating in the front porch area. The defendant filed a motion for summary judgment, asserting that he owed no duty to the plaintiff because the plaintiff had equal knowledge of the lack of a handrail or gating in the area and the proximity of the hill in relation to the porch. Following extensive litigation, the court granted the defendant's motion for summary judgment.
The appellate court concluded that the plaintiff, in his response to the defendant's summary judgment, failed to provide any evidence that the defendant had breached any applicable building, housing, health or safety code. The plaintiff lived nine years in the house preceding the accident, but he never requested nor did the defendant ever agree to install a handrail in the porch area nor did the plaintiff assert that any applicable housing and safety codes required a handrail in the porch area. The judgment was affirmed.
Nader v. Carlyle Condominiums, 2010-Ohio-4359 (8th District)
No Duty at Pool; Surveillance Cameras at a Swimming Pool do Not Create a Duty
Decedent was a condominium resident who drowned in a swimming pool located at the condominium complex. She swam daily in this pool. The administrator of decedent’s estate filed suit against the condominium complex. The administrator agreed that although a swimming pool was an open and obvious danger for which defendant had no duty to warn, defendant created a duty by having closed circuit surveillance cameras at the pool. The court found that if decedent had any belief that the surveillance cameras were present to protect her from the dangers of swimming in the pool, this belief would have been negated by the several signs posted near the pool that had stated no lifeguards were present and warned swimmers to swim at their own risk. The condominium complex had not created any duty.
Price v. Frederick C. Smith Clinic, 2010-Ohio-4551 (3rd District)
Automatic Doors Not an Open and Obvious Danger, Previous Injury
Plaintiff was struck by an automatic sliding door at the defendant clinic, knocking her down which resulted in a broken leg. The court disagreed with defendant’s argument, holding that the doors were not an open an obvious danger. Automatic doors are common today, and most expect that an automatic door will not close in on someone. To the contrary, it is expected that automatic doors are equipped with safety mechanisms and will stop when someone is in between them. The record showed that other individuals had been injured by the doors and that the defendant did not take steps to improve the doors. Thus, defendant was found to have breached its duty.
Snyder v. Meyers, 2010-Ohio-4092 (5th District)
Reasonable Inspection of Premises, Hay Drop Cover in Barn
Appellant visited the home of appellees to purchase a hay rake. In order for the hay rake to be moved from the barn, a heavy roll of carpet had to be moved. As appellant was assisting in moving the roll of carpet by “duck walking” the roll forward, the carpet caught a hook on a hay drop cover, dislodging the cover. The hay drop opened and appellant fell through the hay drop onto the concrete floor below, sustaining back and neck injuries. Appellant filed suit against the property owners and the trust.
The court concluded that appellant was an invitee and that a premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of hidden dangers. Although a reasonable inspection would have disclosed the existence of the hay drop, the danger posed by the hay drop would not have been reasonably discoverable because the cover was on the hay drop and was dislodged only immediately before the appellant fell through the hay drop. A reasonable inspection of the premises would not include sliding a heavy roll of carpet over the hay drop cover to see if the carpet would catch on the hook and dislodge the cover.
Studniarz v. Sears Roebuck & Co., 2010-Ohio-3049 (11th District)
Duty Owed to Business Invitee; Clothes Hangers
The plaintiff was shopping in the defendant’s store when a bar on a clothes hanger sprang open and struck him in the eye. The plaintiff sued, alleging that the defendant failed to warn the plaintiff of the dangerous hanger. The trial court granted summary judgment for the defendant. The appellate court affirmed and found that the defendant had no duty to warn its business invitees because it did not have actual or constructive knowledge of the danger. Actual knowledge was not shown because the plaintiff presented no evidence that the defendant received previous complaints or was aware of the danger. Further, the plaintiff did not present any evidence of constructive knowledge of the hazard. The plaintiff’s own expert testified that a person holding a hanger and inspecting it would not have known of the potential danger of the hanger.
Watson v. Lamb, 2010-Ohio-5006 (8th District)
Bank Used Necessary Safety Measures, Bicyclist Traveling in Excessive Speed
The defendant bank's building directly abutted the public sidewalk adjacent to a road and the driveway, which permitted the patrons to exit the bank’s drive-through ATM. The defendant bank erected a stop sign with an attached parabolic mirror where the driveway intersected the sidewalk. The mirror permitted drivers to view pedestrian traffic on the sidewalk. The plaintiff, who was riding a bicycle on the sidewalk, collided with the defendant individual's vehicle at the driveway and sustained injuries. The plaintiff filed a complaint against the defendant individual and the defendant bank, alleging negligence. The defendant individual cross-claimed that the plaintiff's injury was caused due to the bank’s negligence. Thereafter, the defendant bank successfully filed a motion for summary judgment in the trial court. The plaintiff then filed a Civ. R. 41(A) notice of voluntary dismissal as to the defendant individual. On consolidation, the appellate court concluded that the defendant bank took necessary safety measures by placing a stop sign and mirror where the driveway exit and sidewalk intersected in order to make the egress reasonably safe. Thus, the defendant bank did not create the obstruction nor did it breach its duty to provide a reasonably safe egress for the benefit of its patrons. Also, had the plaintiff been riding at the speed of an ordinary walk, the defendant individual would either have seen him in the mirror or he would have seen her car as it crossed the driveway. The judgment was affirmed.
Zitron v. Sweep-A-Lot, 2010-Ohio-2733 (10th District)
Open and Obvious; Grocery Store Walkway
A woman was crossing a sidewalk at the defendant’s store when she tripped on a hose and injured herself. A contractor was using the hose to clean the sidewalks. The plaintiff sued the store and the contractor alleging negligence. The trial court granted summary judgment for both the defendants. The appellate court affirmed. It found that the contractor was not liable because the hose was observable and the hazard posed by the hose was open and obvious. Further, it found that although the trial court might have erred in excluding the plaintiff’s entire deposition errata sheet, any error was harmless because the changes would not have had any effect on the trial court’s decision that the hose was observable and obvious.
Bucey v. Carlisle, 2010-Ohio-2262 (1st District)
Political Subdivision Immunity; Public School Employees
A former student alleged that a principal had pursued an inappropriate relationship with her while she was a student and later raped her. She also alleged that school employees had been negligent or reckless in their hiring and retention of the principal.
The appellate court found that the school employees were immune from liability under Ohio R.C. §2744.02 because the staffing of a public school with an administrator was fundamental to the provision of a system of public education. The court found that the staffing of a public school did not fall into the proprietary function exception to immunity under R.C. §2744.02 (B)(2).
Dub v. City of Beachwood, 2010-Ohio-5135 (8th District)
No Duty to Further Assist Passenger Beyond Limits of Transportation Van
The plaintiff individual injured herself while exiting the defendant city's transportation van. The plaintiff sued the defendant city, alleging that the driver was negligent in failing to assist her from exiting the van. The trial court granted the defendant's motion for summary judgment. The appellate court concluded that in no part of her testimony or complaint did the plaintiff indicate that she fell as a result of the driver’s negligent operation of the vehicle, rather the defendant argued that the driver failed to assist her in exiting the van once the van stopped. Also, the specific injury in the instant case occurred when the van was no longer moving and the driver was not operating the van. Thus, the defendant was entitled to immunity as no doctrine of immunity applied. Further, the record provided that one of the van's service policies stated the information that the passengers should bring an escort if they were in need of personal assistance and the information, which was stated in a brochure was given to every resident who registered for the service. Furthermore, the plaintiff did not slip on the steps of the van, but she slipped on the ice as she placed her foot on the pavement. Therefore, the plaintiff did not show any negligence on the part of the defendant. Accordingly, the judgment was affirmed.
Estate of Finley v. Cleveland Metroparks, 2010-Ohio-4013 937, N.E.2d 645 (8th District)
Exception to Immunity Did Not Apply When Government Entity Was Not on Notice
Plaintiff was riding a motorcycle with his wife when a tree fell onto the roadway in a Cleveland Metropark, and plaintiff and his wife hit the tree. Plaintiff sustained injuries and his wife died as a result of the crash. Plaintiff sued the park alleging that the park was negligent in maintaining the roads and premises. Cleveland Metropark filed motion for summary judgment asserting that it was immune.
The court found that the exception to immunity under R.C. 2744.02(B)(3) did not apply as there was no evidence presented that the defendant park was on notice of the obstruction in the roadway. The defendant park was responsible for more than 21,000 acres of park property, most of which was wooded terrain, and there was no evidence that it had acted in a reckless manner in its implementation of vegetation maintenance. Therefore, the defendant park was immune from liability under the Political Subdivision Tort Liability Act.
Johnson v. Ashtabula County Joint Voc. Sch., 2010-Ohio-3054 (11th District)
Political Subdivision Immunity; Public School; Welding Class
A minor was injured at school in a welding class when a service panel that he was attempting to repair exploded. The minor’s parents sued the school alleging that it negligently maintained the panel. The trial court granted the school’s motion for summary judgment reasoning that it was immune from liability under Ohio R.C. §2744.02(A).
The appellate court reversed. It found that §2744.02(B)(4) exception for immunity for injuries that occurred on the grounds of a political subdivision that might have been caused by the negligence of the political subdivision’s own employees precluded summary judgment. It reasoned this exception applied because the plaintiff’s expert testified that the panel was improperly fused, the school’s employees did not ever remember re-fusing the panel, and the school recognized the panels were dangerous. Further, the court found that the §2744.03(A)(3)’s immunity for policy making, planning, or enforcement powers did not give immunity to the school simply because the school board approved a general maintenance plan and the employees carried out that plan.
Longly v. Thailing, 2010-Ohio-5012 (8th District)
Plaintiff Had Reason to Know of Potential City Immunity
The plaintiff was traveling on an interstate highway. As a police officer attempted to reenter the freeway, his car struck the rear of her vehicle as she traveled in the right lane. The trial court granted the defendants' motion for summary judgment as to her claims against the officer as an individual, but denied the motion as to her claims against the city. The city appealed and the appellate court reversed the trial court’s denial of summary judgment, concluding that sovereign immunity protected the city from liability. As a result, the plaintiff amended her complaint and added a claim for uninsured motorist coverage against her automobile insurance company, the defendant in the instant appeal.
Although the plaintiff argued that she could not file her UM claim until the appellate court determined that the city was protected by sovereign immunity, the trial court granted the defendant insurer's motion for summary judgment because the complaint was filed more than three years after the accident. The appellate court found that the faulty logic in the plaintiff's argument was her contention that the city was not immune until the instant court deemed it so. The city, however, was always immune under the facts of the case. The plaintiff was aware of the possibility that the city was protected by sovereign immunity because that defense was raised in the answer well before the three-year expiration time. The judgment was affirmed.
Marchant v. Gouge, 187 Ohio App. 3d 551, 2010-Ohio-2273, 932 N.E.2d 960 (5th District)
Political Subdivision Immunity; Police Cruiser Struck Pedestrian
A police cruiser struck an individual while he was crossing the street. The individual subsequently died. The trial court found that both the police officer and the county were entitled to political subdivision immunity under Ohio R. C. §2744.22.
The appellate court upheld the trial court’s grant of immunity. It found that the statute did not restrict emergency calls to officers who were specifically dispatched to a situation. In considering whether the call was an emergency situation, the trial court was correct in only considering three factors: (1) whether the officer was on active duty; (2) whether he was driving in response to a dispatch; and (3) whether he had lights and siren activated. Also the court found the officer’s conduct was not reckless even though he was speeding because the evening was clear and the cruiser’s lights and sirens were activated.
O’Connor v. City of Fremont, 2010-Ohio-4159 (6th District)
Claimed Damages Related to Municipal Pool Did Not Fall Within Immunity Exception
Appellant minor was swimming at a municipal recreational swimming pool and fell from the diving board and sustained an injury. The appellant sued the city, alleging negligence in design, operation, supervision, and maintenance of the swimming pool and its diving board. The trial court granted summary judgment to the city, agreeing that sovereign immunity applied. The appellate court affirmed that the claimed negligence damages did not fall within the R.C. 2744.02(B)(4) sovereign immunity exception.
Schultz v. Univ. of Cincinnati Coll. of Med., 2010-Ohio-2071 (10th District)
State Employee Immunity For Medical Malpractice; Scope of Employment
A doctor was appointed as a professor at the University’s College of Medicine. The doctor also provided clinical care to patients at a hospital through his private practice group. The plaintiff sued the doctor after he performed surgery on the plaintiff. The appellate court found that the doctor was entitled to personal immunity under Ohio R. C. §9.86 and §2743.02. The doctor satisfied the first requirement of immunity because his employment as a full-time professor at the University of Cincinnati made him a state employee despite his involvement with his own personal practice group. Secondly, the doctor was acting within his scope of employment because he was furthering the education of a neurosurgical resident during the treatment of the plaintiff.
- Other Significant Decisions
Akbik v. Erie Ins. Group, 2010-Ohio-1535 (7th District)
Cancellation of Policy Allowed When Insurer Accepted Late Payments
A pedestrian was struck by an automobile and was seriously hurt. The pedestrian sued the automobile driver’s insurance company for coverage for his injuries. The insurance company denied coverage because it had cancelled the driver’s policy due to late payments. The plaintiff argued that because the insurance company accepted the driver’s late payments previously, it could not cancel the policy until the date upon which the payment became due. The appellate court found that the insurance policy expressly stated it had the right to cancel the policy even though it accepted her late payments. Therefore, because the insurance company complied with the terms of the policy in canceling the policy, the plaintiff’s injury was not covered.
Akers v. Saulsbury, 2010-Ohio-4965 (5th District)
U.S. Postal Service Worker Not Negligent; Plaintiff Did Not Have the Right of Way
While delivering mail, the plaintiff employee of the United States Postal Service was operating her vehicle on the berm, placing mail in the mailboxes. As the plaintiff proceeded along the berm, the defendant made a left turn into a private drive in front of the plaintiff's vehicle and the two vehicles collided. The plaintiff along with her husband sued the defendant and others. The appellate court concluded that evidence showed that the plaintiff did not have the right-of-way and the defendant was not negligent in the operation of her vehicle. Thus, the trial court did not err in entering judgment on the jury’s verdict.
Am. Int’l Recovery v. Allstate Ins. Co., 2009-Ohio-6508 (11th District)
Expert Testimony Not Needed to Explain Insurer’s Duty to Timely Notify Insured of Cancellation Date
A man was driving a vehicle that he did not own and was involved in an automobile accident. The accident injured another person. Earlier, the vehicle’s owner had requested that its insurer suspend coverage on a future date. Instead, the insurer suspended coverage immediately without the owner’s knowledge. The insurer of the injured person sued the insurer of the vehicle’s owner. The trial court granted the vehicle owner’s insurer’s motion for directed verdict because the injured person’s insurer did present expert testimony on the duty of an insurance agent.
The appellate court reversed. It found that the defendant should have told the vehicle’s owner that coverage no longer existed the day after the insured spoke with the defendant. It held that the duty of the defendant was so apparent that it was within the comprehension of laymen and did not requi