I was interviewed by local General Surgeon Jeffrey Parks, M.D. yesterday on his widely-followed Buckeye Surgeon Blog on the topic of medical malpractice cases. Although it was a hostile environment, it was a good opportunity to dispel some myths about the judicial system. Thank you to Dr. Parks for the opportunity.
You can check out the full post here.
On August 17, 2011 DCSTB Partner, Tom Connick, went to trial in a case that had been pending and litigated since 2006, wherein Tom’s client, a professional real estate appraiser, was accused of participating in a predatory lending/flipping scheme, that allegedly damaged Plaintiffs in excess of one million dollars. After approximately five (5) days in trial, Tom successfully convinced the trial court to grant his client a directed verdict, i.e. dismissal, on all claims. After hearing arguments of counsel, the trial court agreed with Tom and dismissed all counts alleged against his client. The Plaintiffs appealed. Just recently, on June 21, 2012, in the case of U.S. Bank, Etc., Et Al. v. Cynthia Amir, ET Al, Slip Copy, 2012 WL 2355620, 2012-Ohio-2772, Ohio App. 8 Dist., June 21, 2012 (97438), the Ohio Eighth District Court of Appeals affirmed the trial court’s ruling in favor of Tom’s client. This is a significant Appellate victory for Tom’s client, as Plaintiffs had made a demand and alleged damages for over One Million Dollars. And, in fact, other Defendants in this case were deemed liable for over 1.8 Million Dollars. Notably, however, both at trial and on appeal, Tom successfully presented arguments showing that his client did not participate in the alleged fraudulent real estate scheme, whatsoever. This case is also significant for outlining Ohio case law related to alleged real estate appraiser liability in the context of the Ohio Consumer Sales Practices Act, Fraud and Civil Conspiracy.
Congratulations to Tom on another job well-done!!
In Havel v. Villa St. Jospeh, 2012-Ohio-552, the Ohio Supreme Court this week upheld a statute passed in 2005 that requires a trial to be split into two phases — or “bifurcated” — when a party is seeking both compensatory and punitive damages. The bifurcation of a trial requires a different jury to hear each phase of the case. The Court’s decision states that trials must be bifurcated pursuant to the statute, taking away a lower court’s discretion to decide whether bifurcation is warranted on a case-by-case basis.
Previously, pursuant to the Civil Rules of Court, judges were allowed to deny a request for bifurcation and allow a single jury to decide what amount of compensatory damages should be awarded and, at the same time, determine if the facts warranted an award of punitive damages against a defendant. This would save the courts’ and parties’ time, money and resources. Although rare, the finding of punitive damages in civil jury trials has remained one of the best methods of deterring egregious behavior of a party and preventing future occurrences.
By upholding the Constitutionality of the statute requiring bifurcation, the Havel decision will make it much more difficult to prove that punitive damages are warranted in cases.
Cleveland’s culinary renaissance is spreading to Pittsburgh. Iron Chef Michael Symon, longtime client of DCSTB partner Jim Sammon, announced this week that he is opening a new Bar Symon inside the Pittsburgh International Airport. Congratulations to Michael and his whole team ! We fully support expanding the number of places that we can get a Lola burger!
Jim Sammon undertook all aspects of the legal work for the deal, including the creation of the corporate entity, drafting and negotiating of the agreement between Chef Symon’s company (33 1/3 Management) and its partner in the venture, United Concessions Group. The venture plans to be the first of many airport concepts that spread the culinary delights of Cleveland’s finest.
DCSTB recently settled a bad faith insurance claim on the eve of trial for $3,750,000 against one of the largest insurance carriers in the world. Rob Dubyak’s corporate client initially approached him with a $22,000 commercial property damage claim for the client’s building. When the insurance company improperly investigated the claim, delayed payment of benefits, and refused to pay Rob’s client what was owed under the insurance policy, the firm filed suit for bad faith denial of benefits. Led by the efforts of Tom Connick, who has over 15 years of insurance law/litigation experience, the firm fought for our client for over two years of intense litigation. Tom and Rob took over 20 depositions, including those of claims adjusters, insurance and damage experts, and the insurance company’s claims executives. The extensive work of DCSTB exposed the inexcusable breach of contract and bad faith of the defendant. Although the insurance company maintains that it was not liable, it ultimately agreed to pay DCSTB’s client a multi-million dollar settlement. In total, DCSTB recovered approximately $4,400,000 for the client.
The case combined over 35 years of litigation experience of these two DCSTB partners. The firm was able to develop the necessary strategy to protect the client’s commercial property interests, while at the same time masterfully analyzing the insurance policy to make sure that the insurance company paid our client’s substantial damages, including for the interruption in her business and lost profits. Tom Connick focuses a large part of his practice on representing both insurers and policyholders in a variety of insurance-related legal issues, including bad faith litigation. Rob Dubyak represents many commercial property owners and has extensive commercial litigation experience and expertise in helping them in all aspects of transactions and litigation. The combined expertise of DCSTB’s attorneys make the firm uniquely suited for handling such complex litigation matters.
Congratulations to Tom and Rob on this phenomenal result for our client.
Whether you are an insurer or a policyholder, if you have any insurance law issue, including claims of bad faith denial of benefits, that requires legal counsel, you can contact Tom Connick directly at (216) 364-0502 or tconnick@dctblaw.com. If you need assistance with any other commercial or litigation matter, you can contact any of the attorneys at DCSTB at (216) 364-0500.
Congratulations to DCSTB Partner Tom Connick who, along with colleague and co-counsel Edward W. Cochran, recently received Final Approval of a Class Action claim against Enterprise Rent-A-Car and its subsidiary companies, brought on behalf of their client, Robert Wittbrot. In September 2008, Mr. Wittbrot, while driving a rented a car from Enterprise, was identified by a red light photo enforcement program as having run a red light. A citation was sent automatically to Enterprise as the registered vehicle owner. Before notifying Mr. Wittbrot, Enterprise automatically paid the $100.00 ticket by charging the amount to Mr. Wittbrot’s credit card, along with an additional $20.00 administrative fee. On November 13, 2008, Mr. Wittbrot received a letter from Enterprise (dated November 7, 2008) notifying him of the citation and the amount of the charges. The payment and timing of the notification did not allow Mr. Wittbrot to challenge the validity of the citation.
Enterprise’s actions violated Ohio Revised Code § 4511.092 by failing to notify the issuing authority of the name and address of the person renting the car at the time of the violation, and by unilaterally paying the ticket and charging Mr. Wittbrot an additional administrative fee of $20.00. Although Enterprise denied all liability, it agreed to a 100% refund to all Class Members who were charged the unlawful administrative fee, and further agreed to injunctive relief, which includes Enterprise agreeing to indefinitely stop charging any more administrative fees associated with camera citations. Except in very limited circumstances, Enterprise further agreed to no longer pay the citations issued to it, but instead to put the issuer of the citation on notice of the name and address of the violating renter.
Enterprise was also required to pay costs, Court approved attorney fees and a Court approved incentive fee to Mr. Wittbrot for his role in successfully challenging Enterprise’s improper practices and procedures.
If you feel that your rights and the rights of those similarly situated with you have been violated, and you want to serve as a Class Representative in a Class Action, please contact Tom Connick directly at (216) 364-0502 or tconnick@dctblaw.com for a free consultation.
The Summit County Court of Common Pleas decided last Friday to certify a class action brought by Tom Connick on behalf of a group of residents of a mobile home park who were charged excessive fees for natural gas by the owners of the park since the 1990′s. The Judge rejected arguments by the park owners that there were too many differences between the class members, such as their length of residence or whether they were current on rent to the park, to allow the case to be handled as a class action. The court held that the Plaintiff satisfied all elements under Civil Rule 23 for certification, and that the case would move forward as a class.
In a decision recently issued by the Eighth District Court of Appeals (Cuyahoga County), Hewitt v. L.E. Myers Co., 2011-Ohio-5413, the court upheld a lower court’s decision and a jury finding under the “new” employment intentional tort statute, R.C. §2745.01.
The decision is interesting as, rather than attempting to establish a “deliberate intent” intentional tort, the Plaintiff took the tact of establishing the case by use of the third part of the statute. Part C sets forth a “rebuttable presumption” of an employer intentional tort when an employer has removed an “equipment safety guard”.
In the case, the Plaintiff equated the rubber gloves (for an electrician) into an “equipment safety guard” as is called for in the Statute. The plaintiff was a second-step apprentice lineman who was electrocuted when his supervisor sent him (alone) into the bucket and told him that he “shouldn’t need no rubber gloves” when he went up to work on the lines.
The case shows the drafting problems that occur in the Ohio Legislature. For years the Legislature has been trying to draft an employment intentional tort statute that would survive Constitutional muster and other attacks. With R.C. §2745.01, they thought they had finally done just that – but they were likely wrong. The Legislature failed to provide a definition of the term “equipment safety guard” – either in the history, legislative notes or otherwise. This loophole will allow the courts to expand exactly what an “equipment safety guard” is – so as to likely eviscerate the initial two prongs of the deliberate intent statute.
Previously, the Sixth District Court of Appeals (Toledo) tried to give a limited expansion of the term, and stated – “ ‘equipment safety guard’ would be commonly understood to mean a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the machine.” (emphasis added) The Eighth District Court of Appeals in Hewitt thought that definition (which with “commonly understood” and “aspect” within it could mean virtually ANYTHING) was too “limited.”
So far, Courts have found that an employer not providing gloves, long sleeve shirts, or properly programmed machines, constitute evidence of a “deliberate removal of an equipment safety guard” to provide the rebuttable presumption under the statute.
Ultimately, this expansion and interpretation will get to the Ohio Supreme Court. However, without a legislative underpinning it will be hard for that Court to jump through the necessary legal hoops to stop this court and case-law expansion of the statute. As such, the Legislature would be wise to get their drafting pens out and start re-writing again.
I represent an appraiser who was accused of inflating the value of a home in Cleveland to secure a mortgage. The home was subject to foreclosure, and the homeowner sued several parties, including my client, alleging that the parties were involved in a predatory lending scheme. Although my client appraised the home at its proper market value, he was sued for fraud, civil conspiracy, violation of the Ohio Corrupt Practices Act (Ohio’s version of the federal RICO Act), and violation of the Ohio Consumer Sales Practices Act.
After over five years of discovery and motion practice, the case went to trial last week. I successfully persuaded the Court to exclude evidence and testimony offered by the Plaintiff, including the testimony of Plaintiff’s expert appraiser, who failed to provide an opinion of a comparative market value of the subject house as of the date my client performed his appraisal. Without such comparative evidence, I argued, the expert’s opinion had no evidentiary value. The Court agreed. I also established through four days of cross-examination of the Plaintiff’s witnesses that there was no evidence to support the claims against my client.
At the close of the Plaintiff’s case, the trial judge granted my motion for a Directed Verdict, holding that my client was entitled to a judgment as a matter of law. Under Ohio Civil Rule 50, the judge evaluated all of the evidence presented in a light most favorable to the Plaintiff. Even under that standard, it was held that a reasonable jury could only find in my client’s favor.
I will continue to handle this case through any appeal.
I defend property appraisers on a regular basis. One of the issues that always arises in cases alleging negligence against an appraiser is the applicable statute of limitations and the date the injury accrued. Until recently there has been a conflict of opinions within Ohio’s appellate districts as to when a claim for negligence accrues related to the professional negligence of a property appraiser. The Ohio Supreme Court just resolved that conflict in the case of Flagstar Bank, F.S.B v. Airline Union’s Mortgage Company, et al, Slip Opinion No. 2011-Ohio-1961.
In 2008, Flagstar Bank sued an appraiser who, in 2001 and 2002, issued appraisals on three properties for a non-party bank that later sold the properties to Flagstar. These properties went into foreclosure during the recent real estate debacle currently plaguing the country. In resolving the conflict in Ohio as to when an action for professional negligence against appraisers accrues, the Ohio Supreme Court held in Flagstar that “[a] cause of action for professional negligence against a property appraiser accrues on the date that the negligent act is committed, and the four-year statute of limitations commences on that date.”
Notably, the court expressly rejected the “discovery-rule” and the “delayed damages rule.” Under these rules, a plaintiff’s action does not accrue, and the statute of limitations does not begin to run, until the plaintiff knows, or reasonably should have known, that he or she has been injured by the conduct of the defendant (discovery rule), or has actually incurred damages to complete the elements required to bring a cause of action for negligence (delayed damages rule). Now, under Ohio law, a professional negligence claim against an appraiser accrues, and the four-year statute of limitations commences, on the date the appraiser performs any alleged negligent appraisal work.
Recently, the Ohio Eighth District Court of Appeals ruled in favor of my client, The City of Cleveland Department of Port Control, dismissing a slip and fall case brought by a woman who fell in a puddle of water in the open air parking garage adjacent to the Cleveland Hopkins International Airport terminal. The woman claimed that she was distracted by other pedestrians as she entered the Airport, and therefore did not notice the puddle. During her deposition, however, the woman admitted that she saw the puddle of water and even tried avoiding it because she knew she could slip and fall. The trial court dismissed the claim under Ohio’s “Open and Obvious” Doctrine, which holds that a property owner has no duty to protect people from dangers that are so obvious and apparent that they may be expected to discover them and protect themselves. Plaintiff appealed the trial court’s ruling, alleging that her claim was not barred by the Doctrine because of “attendant circumstances,” which in this case she alleged were the other patrons who distracted her attention. The appellate court disagreed, holding that “[t]he evidence in the present case does not support a finding of attendant circumstances. Rather, the evidence demonstrates that it was O’Brien’s own disregard of the condition, after observing the puddle and appreciating the potential risk of falling if she walked through it, that resulted in her fall.”
Decedents who died in 2010 or have already died in 2011 or will die later this year have a $5 million estate tax exclusion. This will be indexed for inflation for deaths after 2011. The maximum estate tax rate on estates that exceed the estate tax exclusion amount is 35%. The applicable exclusion for 2010 gifts was $1 million. The gift tax rate was 35%. For gifts after 2010, the gift tax has been reunified with the estate tax with an applicable exclusion of $5 million and top rates of 35%. This change now allows individuals who had previously used up all of their gift tax exclusion amount to make additional gifts beginning in 2011. This, along with the IRS rate factors which are currently extremely low, will open up many planning opportunities for individuals wishing to do additional gift planning.
The general rule is that only individuals over the age of majority (18) are capable of entering into contracts. However, contracts entered into by minors are not automatically void. They are voidable at the minors election. See Ohio Rev Code Sec. 3109.o1. A minor must disaffirm any such contract upon reaching the age of majority or within a reasonable time thereafter considering the circumstances of each particular case.
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