On December 28, 2023, David Lester of CRUG’s Cleveland office won a victory for CRUG’s client, the Coshocton County Memorial Hospital in the Supreme Court of Ohio, that Ohio’s four-year statute of repose for “medical claims”, set forth in R.C. 2305.113(C), applies to wrongful-death claims. In Everhart v. Coshocton County Mem. Hosp., 2023-Ohio-4670, the supreme court resolved a split in Ohio law by holding that the “broad definition of ‘medical claim’ that applies to the statute of repose clearly and unambiguously includes wrongful-death claims based on medical care, and nothing in Ohio’s statutory wrongful-death chapter negates their inclusion.” The decision can be found here: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2023/2023-Ohio-4670.pdf
David Lester of CRUG’s Cleveland office recently won a trifecta of insurance coverage cases across Ohio:
- In Turner v. Pontones (Carroll County), the insured was sued for an RV crash that resulted in the death of a passenger. Coverage was sought under a farm liability policy that contained a motor vehicle exclusion. Dave convinced the court that no exceptions existed for the exclusion and the exclusion barred coverage.
- In Newman v. Pitts (Lorain County), the insured was sued for assault and battery involving a knife, but claimed self-defense. Coverage was sought under a homeowners policy that excluded liability coverage for expected or intended injuries. Despite efforts by the plaintiff to contend that the insured only acted negligently, Dave convinced the court that the harm was intentional and therefore excluded. The insurer defended under reservation of rights, but owed no indemnity.
- In State Farm Mut. Auto. Ins. Co. v. Garcia (Cuyahoga County), the insured, an off-duty police officer, was sued for shooting and killing another driver after a verbal exchange. The insured claimed the other driver drew a gun first and the insured acted in self-defense. Coverage was sought under a homeowners policy and an auto policy. With respect to the auto policy, Dave convinced the court that the harm did not arise out of the use of the auto and therefore was excluded.
During the OACTA Annual Business Meeting & Legal Excellence Award Luncheon on Thursday, November 9, our Columbus Partner, David Orlandini accepted recognition for his contribution as a board member over the past four years. David is now honored as an OACTA Board Trustee, Past President. Congratulations David!
In Nagy v. The Fred W. Albrecht Grocery Co., Evan Palik of CRUG’s Akron Office successfully defended a grocery store in a premises liability claim brought by an employee of a contractor injured during renovations to the store.
The employee fell into an excavated trench and suffered a fractured ankle on the store’s premises. He claimed that the store actively engaged in conduct that concealed the hazard in violation of a premises owner’s common law and statutory duty. Evan prevailed in the trial court on summary judgment.
The employee appealed, but Ohio’s Ninth Appellate District affirmed and held that the employee at an inherently dangerous construction site was admittedly already aware of the excavation and as such, the excavation was open and obvious for which there is no duty to warn. In so holding, the appellate court reaffirmed the following principles of negligence and premises liability law in Ohio:
- The existence of a duty in a negligence action is a question of law for the court to determine.
- Where there is no duty or obligation of care or caution, there can be no actionable negligence.
- An owner of a construction site who merely directs an independent contractor to perform a task required by contract specifications but does not retain control over the means or manner in which that task is performed, does not owe a duty of care to an employee of a subcontractor who is subsequently injured as a result of the other contractor’s performance of the task in an unsafe manner.
- The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge.
CRUG’s David Utley and David Lester recently prevailed in the Supreme Court of Ohio in Acuity v. Progressive Specialty Ins. Co. (opinion below). In that case, the Supreme Court of Ohio upheld the right of insurers to define who is an insured under liability policies.
On October 5, 2023, the Franklin County Court of Common Pleas dismissed a lawsuit filed against CRUG’s client, TransAm Trucking, Inc., because the plaintiff had failed to sue the employee truck driver who allegedly caused the accident. The court agreed with arguments by CRUG attorneys Patrick Roche and Kurt Anderson that a claim of vicarious liability against an employer must first show that the individual employee is liable, and if the employee has not been sued and the statute of limitations expires, then the vicarious liability of the employer is likewise extinguished. The decision is GSA Transport, Inc. v. TransAm Trucking, Inc., Franklin County Common Pleas No. 21-CV-002742 (Oct. 5, 2023).
August, 2023– After four years of litigation, Beverly Adams secured a defense verdict in Jennifer Bognar, et al. v. State Farm Insurance, et al in Cuyahoga County Court of Common Pleas. The trial was on liability with the question of whether the traffic light was yellow or had already turned red. Plaintiff was making a left-hand turn. Defendant admitted to exceeding the speed limit to make the light resulting in a T-bone impact. Both vehicles were totaled. Plaintiff claimed concussion/post-concussion syndrome and four years of treatment at MetroHealth, inability to work, permanency, etc. However, the Defendant was found not negligent.
Greg Collins (Akron) and David Lester (Cleveland) recently obtained summary judgment for the Surety under a substantial Performance Bond, where the project Owner failed to comply with notice conditions of the Bond. The case is Warren Roofing & Insulating Co. v. St. Noel Parish, Lake County Court of Common Pleas, Case No. 21CV001388. The Bond required notice to the Surety of potential and actual defaults, and an agreement to pay the balance of the contract price.
Instead of complying with these requirements, the Owner unilaterally declared the Contractor in default, and entered into new contracts to repair and complete the work. The court agreed with the Surety that the Owner’s compliance with the Bond’s requirements was a condition precedent to the Surety’s obligation, the breach of which precluded recovery under the Bond.
CRUG regularly represents bond issuers in such disputes. Contact Greg or David with questions about the case or representation.
Cleveland, Ohio 44145
Akron, Ohio 44311