Archive for category: News

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CRUG Wins a Trifecta of Insurance Coverage Cases Across Ohio

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.

 

 

 

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David Orlandini Awarded at OACTA 2023 Annual Conference

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!

Dave Orlandini

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Premises Liability Victory

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.
Evan J. Palik

Evan J. Palik

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CRUG Supreme Court Win:  Win for Liability Insurers

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.

A car accident resulted in multiple liability policies being potentially implicated for the tortfeasor.  One of the policies limited who qualified as an insured to drivers who did not have liability coverage elsewhere.  The other policy did not use such increasingly common policy language.  In the ensuing declaratory judgment action on the interaction of the policies, the trial court ruled that the first policy did not apply, but the Eleventh Appellate District reversed on the grounds that such policy language constituted an “escape clause” that the court of appeals flatly refused to enforce.  As a result, both policies were implicated.  On further appeal, the Supreme Court of Ohio reversed and found that only the second policy applied.
See opinion: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2023/2023-Ohio-3780.pdf
David G. Utley (L), David L. Lester (R)
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CRUG Wins Dismissal of Trucking Lawsuit

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).

 

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Beverly Adams Wins Disputed Liability Auto Accident

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.

Beverly A. Adams

Beverly Adams

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CRUG Wins Summary Judgment in Performance Bond Case

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.   

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8 CRUG ATTORNEYS RECEIVE 2024 RANKING FROM BEST LAWYERS IN AMERICA®

August 17, 2023- CRUG is proud to announce that the milestone 30th edition of The Best Lawyers in America® for 2024 has been publicly released and 8 lawyers from Collins, Roche, Utley & Garner have been recognized.

 

 

 

 

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Statue of Repose Victory

In Martins Ferry City School Dist. Bd. of Edn. v. Colaianni Constr., Inc., 2023-Ohio-2285 (7th Dist.) Evan Palik, CRUG’s Akron Office, successfully defended a roofing contractor in a claim brought by a school district for breach of construction contract.  Evan won summary judgment in the trial court on the basis that the district’s claims were barred by Ohio’s statute of repose that bars claims against contractors asserted ten years after the date of substantial completion of a construction project.  The district appealed arguing that the statute of repose does not apply because the cause of action had not yet accrued, that the contractor engaged in fraud which is not limited by the statute of repose, and that the contractor provided express warranties beyond the ten year statutory limitation.
The appellate court affirmed holding that the repose period begins to run when a specific event occurs (here substantial completion), regardless of whether a cause of action has accrued or whether any injury has resulted.  The court further held that the fraud exception to the application of the statute of repose does not apply in the absence of a substantive cause of action for fraud, plead with particularity pursuant to Civ.R. 9(B).  And lastly, the court held that no express warranty for workmanship by the contractor can be found in the contract documents.
Evan J. Palik

Evan J. Palik

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Court of Appeals Decision In Waiver of 12(B) Defenses

July 13, 2023 – Collins, Roche, Utley & Garner and its partner, Kurt Anderson, successfully secured the dismissal of a legal malpractice lawsuit because the plaintiff’s attorney failed to timely secure service of process upon the defendant client.

In Michael Mellon v. Aaron A. O’Brien, Esq., et al., 2023-Ohio-2393, the 8th District Court of agreed that the plaintiff, Michael Mellon, never properly commenced the malpractice suit against his former attorney, Aaron O’Brien, because Mellon’s attorney admittedly failed to obtain proper service of summons upon O’Brien within one year of filing the suit, as required by statute. Although the certified mail summons was never delivered, O’Brien had coincidentally learned about the suit from an acquaintance who had noted it on the court’s docket. O’Brien retained Anderson, who filed an answer asserting the defense of failure of service. Despite the answer, and despite notice from the clerk of courts that certified mail service had not been returned, Mellon’s counsel made no further efforts at service. Once the 1-year statutory deadline for service passed, Anderson requested that the suit be dismissed. Because service was never perfected, and because both the original statute of limitations and the Ohio Savings Statute had both expired, the trial judge agreed that the filed lawsuit never properly initiated and could not be resurrected in any way. The Court of Appeals affirmed the dismissal, finding that O’Brien’s participation in the lawsuit did not waive service because O’Brien’s answer preserved the defense from the outset. Nice win that highlights the importance of always preserving the defense of failure of service (or any other 12(B) defense), especially if there are additional grounds that could be asserted as an early 12(B) motion to dismiss.