Summary of 2003 Ohio Supreme Court Cases Related to Litigation, Insurance, Torts and Damages
Prepared for the Ohio State Bar Association by the Insurance Law and Negligence Law Committees
CIVIL PROCEDURE filing by facsimile subject matter jurisdiction laches standing discovery voluntary dismissal arbitration magistrates juries jurisdiction after dismissal post-judgment interest class action promissory estoppel and unjust enrichment writ of procedendo writ of prohibition
computation of time local rules
TORTS champerty and maintenance premises liability sudden emergency defense emergency vehicle immunity
EVIDENCE motion in limine
DAMAGES INSURANCE changes to policy duty to defend employer’s intentional tort coverage who is an “insured” in UM sudden emergency and UM mitigation of damages punitive damages
TABLE OF CASES
Civil Procedure
FILING DOCUMENTS BY FACSIMILE The Ohio Supreme Court’s proposed Facsimile Filing Standards for Ohio Courts, including model rules, are printed on pages xix to xxix in the July 14, 2003, OHIO BAR. REPORTS. Courts would be permitted to adopt local rules allowing filing documents by facsimile. The document would have to include certain information such as caption and docket number. Filing would be available twenty-four hours daily, every day, and would be effective upon the date recorded by the Clerk’s facsimile machine. The burden of confirming receipt is on the sender. The number of pages allowed may be limited, and ordinary fees may be charged.
SUBJECT MATTER JURISDICTION The Ohio Legislature enacted §4116.01 et seq ORC, which prohibited public authorities from imposing certain labor requirements as a condition of performing public works. The plaintiff labor unions sued, alleging that the statute was preempted by the National Labor Relations Act, 29 USC §158. The trial court granted summary judgment for the plaintiffs. The court of appeals reversed but the Supreme Court reinstated the trial court’s judgment. (Opinion by Resnick; Moyer, Douglas, Sweeney, Pfeifer, Cook and Stratton concur.) Ohio State Bldg & Constr Trades Council vs Cuyahoga Cty Bd of Commrs, 98 Ohio St 3d 214, 2002-Ohio-7213, appeal from Cuyahoga App Westside Cellular Inc (Cellnet) buys cellular service wholesale, re-brands it, and markets it to the public on a retail basis. Cellnet filed a complaint with the PUCO against Air-Touch Cellular/Verizon, Ameritech and other companies that provide cellular telephone service, alleging discriminatory pricing against Cellnet in comparison with sales to the defendants’ affiliates. PUCO generally agreed with Cellnet. The Supreme Court affirmed. §4905.33 ORC and §4905.35 ORC, relating to unjust corporate practices, are not preempted by the federal Communications Act, 47 USC §332. (Opinion by Sweeney; Moyer, Douglas, Farmer, Pfeifer, Cook and Stratton concur.) New Par vs Pub Util Comm, 98 Ohio St 3d 277, 2002-Ohio-7245, appeal from PUCO Cincinnati SMSA LP vs Pub Util Comm, 98 Ohio St 3d 282, 2002-Ohio-7235, appeal from PUCO
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Plaintiff filed an eviction action against New Hope in municipal court, which the trial court dismissed for lack of prosecution, and the entry did not state that the dismissal was without prejudice, CR 41 (B). Plaintiff re-filed in common pleas court and the trial court entered a default judgment against New Hope, but the Court of Appeals reversed. The common pleas court did not have jurisdiction since the cause of action had been previously adjudicated by the municipal court. The Bernard Group vs New Hope Alternative Therapy Research, 153 Ohio App 3d 393, 2003-Ohio-4195 (Cuyahoga App) The federal public defender and others filed this action regarding negotiations between the city of Columbus and its police officers’ union on records retention. The union intervened and moved to dismiss based on lack of subject matter jurisdiction, asserting that collective bargaining agreements are within the exclusive jurisdiction of SERB, §4117.98 ORC. The trial court sustained the motion to dismiss and the court of appeals affirmed in part. The Supreme Court ruled that SERB does not have exclusive jurisdiction of every claim that can be framed as an unfair labor practice. The plaintiffs’ claims are based on the Public Records Act, §149.351 ORC, and not within SERB’s exclusive jurisdiction. (Opinion by Stratton; Moyer, Resnick, Sweeney, Pfeifer, Grendell and O’Connor concur.) Keller vs Columbus, 100 Ohio St 3d 192, 2003-Ohio-5599, appeal from Franklin App
LACHES Stewart Harris MD was a psychiatrist employed by ODMH. He was discharged after coworkers alleged he sexually harassed them, and the discharge was affirmed by an arbitrator under the CBA. Harris applied to the common pleas court to vacate the arbitration award. Two years later the trial court overruled ODMH’s motion for summary judgment. ODMH filed this complaint in the court of appeals for a writ of prohibition, and Harris asserted laches as a defense. The court granted the writ and the Supreme Court affirmed, finding no prejudice to Harris. The elements of laches are (a) unreasonable delay or lapse of time in asserting a right, (b) absence of an excuse for the delay, (c) knowledge (actual or constructive) of the injury or wrong, and (d) prejudice to the other party. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Cook, Stratton and O’Connor concur.) State ex rel Ohio Dept of Mental Health vs Nadel, 98 Ohio St 3d 405, 2003-Ohio-1632, appeal from Hamilton App
STANDING The workers compensation law excluded from coverage employees whose injury was proximately caused by being intoxicated or under the influence of a controlled substance, §4123.54 ORC. The statute was amended in 2001 to provide that where chemical testing revealed certain levels of alcohol or drugs, there was a rebuttable presumption of proximate causation. The amendment further provided that if the employee refused to submit to testing, there was a rebuttable presumption of intoxication being the proximate cause of the injury. The AFL-CIO and UAW filed this action in mandamus, prohibition and quo warranto with the Supreme Court challenging the constitutionality of the mandatory testing clause. The Supreme Court ruled that granting writs of mandamus and prohibition to determine the constitutionality of statutes will remain extraordinary and limited to exceptional circumstances that demand early resolution. The Court ruled the plaintiffs had standing since the issue was of great importance and interest to the public, and therefore the issues could be resolved in a form of action that involves no rights or obligations peculiar to the named parties. (Opinion by Pfeifer; Douglas, Resnick and Sweeney concur; Moyer, Cook and Stratton dissent.) State ex rel AFL-CIO vs Ohio Bur Workers Comp, 97 Ohio St 3d 504, 2002-Ohio-6717, in mandamus
DISCOVERY Denny Ross was charged with aggravated murder, murder, rape, kidnapping, tampering with evidence and abuse of a corpse. The respondent court submitted questionnaires to the jury pool requesting information including medical history, criminal records and religious beliefs. The relator newspaper was denied copies of the forms and filed this complaint in mandamus in the court of appeals under §149.43 ORC and the First Amendment. The court of appeals denied release of the juror questionnaires and the list of jurors’ names and address as not being “public records,” but did allow release of the actual juror’s names and addresses prior to the close of the case. The Supreme Court affirmed. State ex rel Beacon Journal Pub Co v Bond, 98 Ohio St 3d 146, 2002-Ohio-7117, appeal from Summit App
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The US Department of Justice investigated the Cincinnati police department, and submitted a proposed settlement to Cincinnati. The relator newspaper was denied a copy of the proposal by the respondent city, and filed this complaint in mandamus in the court of appeals. Cincinnati argued, inter alia, that the federal Freedom of Information Act, 5 USC §551(1) and 552(f), precluded release. The court denied the writ but the Supreme Court reversed. FOIA does not apply to non-federal agencies or officers. State ex rel Cincinnati Enquirer etc vs Dupuis, 98 Ohio St 3d 126, 2002-Ohio 7041, appeal from Hamilton App Sharon Pickel and George Pfaff, licensed independent social workers, consulted with the Nye family in regard to a dependent child proceeding. The trial court allowed both Pickel and Pfaff to testify, over Karen Nye’s objection. The court ruled that Nye did not have a client-clinician relationship with Pickel, and that Pfaff conducted an assessment pursuant to a court order and not for Nye’s treatment, so the privilege did not apply. The court of appeals affirmed, ruling that the therapist-client privilege applies only to communications made in the course of treatment. The Supreme Court ruled that the statutory privileges in former §4732.10 ORC and former §2317.02 (G) ORC did not apply to the reports or testimony of a psychologist and a licensed independent social worker in regard to reports generated for forensic purposes only and do not concern communications made in the course of treatment. Nye’s communications made to Pickel were treatment-focused and privileged, but Pfaff’s testimony was not within the privilege. (Opinion by Moyer; Resnick, Sweeney, Pfeifer, Vukovich, Stratton and O’Connor concur.) In re Jones, 99 Ohio St 3d 203, 2003-Ohio-3182, cert by Franklin App The Ohio Supreme Court is considering amendments to the Rules of Civil Procedure relating to interrogatories to parties, CR 33, and requests for admission, CR 36. The proposals would delete the requirements that the party seeking such written discovery leave at least one inch of space after each inquiry, to allow a response. Instead, the responding party shall quote the discovery request immediately preceding each response. The text of the proposed changes and the Staff Notes are printed in the October 13, 2003, issue of OHIO BAR REPORTS (2003 #41), beginning at page xxxix. If approved, the new Rules will become effective July 1, 2004. Attorney John Potts represented Donald Lentz in civil and criminal forfeiture actions filed by the State related to alleged money laundering. The prosecutor served Potts with a subpoena duces tecum for documents related to legal fees Lentz paid to Potts. Potts filed a motion to quash on his own behalf and for his client. The trial court ordered Potts to submit the documents for an in camera inspection, Crim R 17 (C). Potts appeared but without the documents; the trial court found him in contempt and the court of appeals affirmed, but the Supreme Court reversed and remanded. In order to require production prior to trial, the moving party must show that (a) the documents are evidentiary and relevant, (b) they are not otherwise procurable reasonably in advance of trial by exercise of due diligence, (c) the party cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial, and (d) the application is made in good faith and is not intended as a general fishing expedition. If the trial court finds that the documents meet the Nixon test and a party claims a privilege, the trial court must conduct an in camera inspection. (Opinion by Moyer; Ford, Sweeney, Pfeifer, Petree, Stratton and O’Connor concur.) In re Subpoena Duces Tecum Served Upon Atty Potts, 100 Ohio St 3d 97, 2003-Ohio-5234, appeal from Lucas App
VOLUNTARY DISMISSAL Nawaz Ahmed filed a complaint in the court of appeals for a writ of prohibition to prevent the judge of the Probate Court from interfering with his rights in regard to a probate matter. The judge filed a motion to dismiss, and Ahmed voluntarily dismissed his action, CR 41 (A). The court of appeals then sustained the judge’s motion to dismiss. The Supreme Court reversed. Once Ahmed filed his voluntary dismissal, the court of appeals lacked jurisdiction to consider Ahmed’s claims or the judge’s motion. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton and O’Connor concur.) State ex rel Ahmed vs Costine, 99 Ohio St 3d 212, 2003-Ohio-3080, appeal from Belmont App
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ARBITRATION In a dispute between the general contractor Corona-Kokosing and its subcontractor Sidley, an arbitration panel made an award to Sidley against Corona, but determined that it did not have jurisdiction over Corona’s claims against Sidley. Corona then sued Sidley, and moved to vacate the arbitration award, §2711.10 ORC, or to stay it. The trial court confirmed the award, but sustained Corona’s motion to stay journalization of the award. Sidley filed this action in the court of appeals, seeking execution. The court of appeals affirmed the award but denied the writs. The Supreme Court allowed the writs to require the trial court to journalize the award. Once arbitration is completed, a court has no jurisdiction except to confirm and enter judgment, or vacate, modify or correct an award, or enforce the judgment. However, once judgment was entered, the trial court has authority, CR 54 (B), to stay execution. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur.) State ex rel R W Sidley Inc vs Crawford, 100 Ohio St 3d 113, 2003-Ohio-5101, appeal from Franklin App Shawn Maestle and Bonnie Simons sued Best Buy and Bank One regarding finance and interest charges, and requested class certification. The defendants moved to stay the case pending arbitration, §2711.02 ORC and the federal Arbitration Act, 9 USC §3. The trial court denied the motion, finding the arbitration clause did not apply to the plaintiffs. The court of appeals reversed since the trial court had not held a hearing under §2711.03 ORC, but the Supreme Court disagreed. A party seeking to enforce an arbitration clause may choose to move for a stay of the civil proceedings, §2711.02 ORC, and/or may petition for an order for the parties to proceed to arbitration (and a hearing), §2711.03 ORC. The hearing provided in §2711.03 ORC does not apply to a §2711.02 ORC motion. Maestle vs Best Buy Co, 100 Ohio St 3d 330, 2003-Ohio-6465, certified by Cuyahoga App Boardman Township patrolman Andre Leon was discharged for violating BT’s civil service residency requirements. His union appealed under the CBA and the arbitrator reduced the discharge to a suspension without pay, provided he relocate his residence within sixty days. Leon appealed the arbitration award to the court of common pleas, §2711.10 ORC. The court dismissed the application since Leon was not a party to the arbitration and lacked standing, and the court of appeals and Supreme Court affirmed. The court analyzed the legal concepts, involving contract law, labor relations and union representation. The court ruled that when an employee’s discharge or grievance is arbitrated between an employer and a union under the terms of a CBA, the aggrieved employee does not have standing to appeal the award, §2711.10 ORC, unless the CBA expressly give the employee an independent right to submit disputes to arbitration. Leon vs Boardman Twp, 100 Ohio St 3d 335, 2003-Ohio-6466, appeal from Mahoning App
MAGISTRATES In a child support hearing between Mark Gordon and his former wife Stephanie Gordon, the magistrate notified the parties by telephone what his decision would be. Mark filed an objection with the trial court a month before the magistrate’s report was filed. The trial court ruled that no objection had been filed within fourteen days of the report and adopted the report. The court of appeals affirmed that the objection was untimely but certified the question. The Supreme Court reversed. CR 53 (E) does not specify that prematurely filed objections are untimely, although a premature filing may not meet the responsiveness requirements of the Rule. (Opinion by Resnick; Moyer, Sweeney, Pfeifer, Christley, Stratton and O’Connor concur.) Gordon vs Gordon, 98 Ohio St 3d 334, 2003-Ohio-1069, certified by Warren App
JURIES Michael Fisher was tried for felonious assault with a firearm. The trial court permitted the jurors to submit questions to the bailiff, which would be reviewed by the court and counsel out of the hearing of the jury, and the court would read the allowable questions to the witness. The jurors submitted twenty-three questions to six of the eight witnesses; the trial court disallowed five questions and rephrased two. Fisher appealed his conviction, citing the juror questioning. The court of appeals and the Supreme Court affirmed. This practice and this method are allowed by Ohio and federal law and Constitutions. (Opinion by Moyer; Resnick, Sweeney, Pfeifer, Christley, Stratton and O’Connor concur.) State vs Fisher, 99 Ohio St 3d 127, 2003-Ohio-2761, certified by Franklin App
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JURISDICTION AFTER DISMISSAL Applied Performance Technologies Inc sued its former employee Eric Conkle for breach of a non-competition agreement. Upon agreement of the parties, the trial court entered a protective order. APT dismissed the case, but two months later moved for a court order for Conkle to show why he should not be held in contempt in regard to an alleged breach of the order. Conkle moved to dismiss the motion, based on lack of jurisdiction following dismissal, but the trial court overruled the motion. Conkle filed this complaint for mandamus and prohibition against the trial court. The court of appeals dismissed the action and the Supreme Court affirmed. Courts may consider collateral issues like criminal contempt even after the case in which the contempt arose has been terminated. A protective order that on its face survives the underlying litigation continues to be effective even after the underlying case has been dismissed. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur.) State ex rel Conkle vs Sadler, 99 Ohio St 3d 402, 2003-Ohio-4124, appeal from Franklin App Allstate Insurance sued Hydromatic Pumps. During trial the court found Allstate’s attorney Brian Benbow in contempt for misconduct in front of a jury, and advised him that he could purge the direct contempt by payment of a $500 fine. That day, the jury returned a defense verdict and the trial court entered judgment and dismissed Allstate’s complaint with prejudice. When Benbow did not pay the fine, the trial court issued a citation for him to appear. Benbow filed this complaint in prohibition. The court of appeals dismissed the complaint and the Supreme Court affirmed. Even when a court has unconditionally dismissed a case, it retains jurisdiction to consider the collateral issue of criminal contempt. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur.) State ex rel Benbow vs Runyan, 99 Ohio St 3d 410, 2003-Ohio-4127, appeal from Ashland App Nawaz Ahmed filed a complaint in the court of appeals for a writ of prohibition against the Probate Court, then voluntarily dismissed the complaint. Two months later the court of appeals dismissed the complaint, CR 12. Ahmed then filed several motions, including motions for contempt and sanctions. The court of appeals ruled that it had no further jurisdiction. The Supreme Court reversed. Trial courts may consider collateral issues like criminal contempt and CR 11 sanctions despite a dismissal. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur.) State ex rel Ahmed vs Costine, 100 Ohio St 3d 36, 2003-Ohio-4776, appeal from Belmont App
POST-JUDGMENT INTEREST Steven Judy sued BMV for excessive license reinstatement charges. The trial court granted summary judgment in his favor and awarded post-judgment interest. The court of appeals reversed the interest award but the Supreme Court reinstated the interest. The State is liable for post-judgment interest under §1343.03 (A) ORC. (Opinion by Moyer; Sweeney, Pfeifer, Walters and Wise concur; Carr and Stratton dissent.) Judy vs Ohio Bur of Motor Vehicles, 100 Ohio St 3d 122, 2003-Ohio-5277, appeal from Lucas App
CLASS ACTIONS Twelve lawsuits were filed by mortgagors against their respective lenders regarding failure to record satisfaction of residential mortgages within ninety days, in violation of §5301.36 ORC. The trial court sustained the plaintiffs’ motions to certify a class in each action. The court of appeals reversed but the Supreme Court reinstated the class certification. There are seven prerequisites to class certification, CR 23: (a) an identifiable class with an unambiguous definition, (b) the named plaintiff must be a member of the class, (c) joinder is impractical because of numerosity, (d) there are questions of law or fact common to the class, (e) the named plaintiff’s claims or defenses must be typical for the class, (f) the named plaintiffs must fairly and adequately protect the interests of the class, and (g) one of the three CR 23 (B) requirements must be satisfied. (Opinion by Sweeney; Moyer, Douglas, Resnick and Pfeifer concur; Cook and Stratton dissent.) In re Consol Mtge Satisfaction Cases, 97 Ohio St 3d 465, 2002-Ohio-6720, appeal from Hamilton App
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PROMISSORY ESTOPPEL and UNJUST ENRICHMENT Springboro selected Michael Shampton to operate the restaurant on its city golf course and began negotiation of a fifteen-year lease. In the meantime, Springboro and Shampton agreed to a temporary lease, each party having a right to cancel on thirty days’ notice. After seventeen months, Springboro terminated the lease. Shampton sued, alleging promissory estoppel. The jury returned a verdict for Shampton and the court of appeals affirmed, but the Supreme Court reversed. Ohio has adopted the Restatement of the Law 2d Contracts (1981), §90, which states “a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person, and which does induce such action or forbearance, is binding if injustice can be avoided only by enforcement of the promise.” The detrimental reliance must be reasonable; in this case, Shampton knew, or should have known, that the city manager was not authorized to enter into a lease without approval of the city council. (Opinion by Sweeney; Moyer, Resnick, Whitmore, Stratton and O’Connor concur; Pfeifer dissents.) Shampton vs Springboro, 98 Ohio St 3d 457, 2003-Ohio-1913, appeal from Warren App
WRIT OF PROCEDENDO In a dispute between the general contractor Corona-Kokosing and its subcontractor Sidley, an arbitration panel made an award to Sidley against Corona but ruled it did not have jurisdiction over Corona’s claims against Sidley. Corona then sued Sidley, and moved to vacate the arbitration award or to stay it. The trial court granted Sidley’s motion to confirm the award, but sustained Corona’s motion to stay journalization of the award. Sidley sued for a writ of procedendo to order the trial court to enter judgment. The court of appeals denied the writ but the Supreme Court reversed. Procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment, or has erroneously stayed the proceedings. Upon granting an order confirming, modifying, correcting or vacating an arbitration award, the court must enter judgment. [The trial court has authority to stay execution, CR 54 (B).] (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur.) State ex rel R W Sidley Inc vs Crawford, 100 Ohio St 3d 113, 2003-Ohio-5101, appeal from Franklin App
WRIT OF PROHIBITION The Supreme Court granted the State’s application for a writ of prohibition to prevent the court of common pleas from exercising further jurisdiction in the DeRolph v State school-funding case. In order to be entitled to the writ, the relator must establish that (a) the trial court is about to exercise judicial or quasi-judicial power, (b) the exercise of such power is not authorized by law, and (c) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. In cases of patent and unambiguous lack of jurisdiction, the third element does not need to be proved because the availability of alternate remedies like appeal would be immaterial. (Opinion by Stratton; Moyer, Pfeifer, Cook and O’Connor concur, Resnick and Sweeney dissent.) State ex rel State vs Lewis, 99 Ohio St 3d 97, 2003-Ohio-2476, in prohibition Lima Correctional Institution employees and their union sued the Ohio Department of Rehabilitation & Correction, claiming that the planned closing of LCI violated the CBA. The Supreme Court granted ODRC’s application for a writ of prohibition against the court of common pleas issuing a temporary restraining order against ODRC. SERB has exclusive jurisdiction of the labor claims. (Per curiam; Moyer, Resnick, Cook, Stratton and O’Connor concur; Sweeney and Pfeifer dissent.) State ex rel Wilkerson vs Reed, 99 Ohio St 3d 106, 2003-Ohio-2506, in prohibition In a dispute between the general contractor Corona-Kokosing and its subcontractor Sidley, an arbitration panel made an award to Sidley against Corona but ruled it did not have jurisdiction over Corona’s claims against Sidley. Corona then sued Sidley, and moved to vacate the arbitration award or to stay it. The trial court granted Sidley’s motion to confirm the award, but sustained Corona’s motion to stay journalization of the award. Sidley filed this action in the court of appeals for a writ of prohibition against the trial court staying execution. The court of appeals denied the writ but the Supreme Court reversed in part. Prohibition is appropriate when a lower court patently and unambiguously lacks jurisdiction. A court has no discretion under §2711.09 ORC and §2711.12 ORC when an arbitration award is not vacated, modified or corrected. Once arbitration is completed, a court has no jurisdiction except to confirm and enter judgment, or vacate, modify or correct an award, or enforce the judgment. However, once award was journalized, the trial court has authority, CR 54 (B), to stay execution. (Per curiam; Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur.) State ex rel R W Sidley Inc vs Crawford, 100 Ohio St 3d 113, 2003-Ohio-5101, appeal from Franklin App
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COMPUTATION OF TIME In a child support hearing between Mark Gordon and his former wife Stephanie Gordon, the magistrate notified the parties by telephone what his decision would be. Mark filed an objection with the trial court a month before the magistrate’s report was filed. The trial court ruled that no objection had been filed within fourteen days of the report and adopted the report. The court of appeals affirmed that the objection was untimely but certified the question. The Supreme Court reversed. CR 53 (E) does not specify that prematurely filed objections are untimely, although a premature filing may not meet the responsiveness requirements of the Rule. (Opinion by Resnick; Moyer, Sweeney, Pfeifer, Christly, Stratton and O’Connor concur.) Gordon vs Gordon, 98 Ohio St 3d 334, 2003-Ohio-1069, certified by Warren App
LOCAL RULES Henry Hooten sued his insurer Safe Auto for coverage. Safe Auto filed a motion for summary judgment. Two weeks later Hooten filed a motion, CR 56 (F), for a continuance of the hearing on the motion; Hooten did not request oral arguments or indicate an intent to file a response to the motion. Two weeks later the trial court overruled Hooten’s motion, and granted summary judgment to Safe Auto. The court of appeals reversed, but certified to the Supreme Court the question of whether a trial court, before ruling on a motion for summary judgment, must either (a) set an oral or non-oral hearing date or (b) establish a cut-off date for opposing parties to submit responsive material. The Supreme Court ruled that a trial court does not need to notify the parties of a consideration date or deadline for submitting materials, if a local rule provides sufficient notice. Here, the local rule stated that motions will not be set for oral argument unless certain procedures are followed, and the local rules are consistent with CR 7 and Fed R Civ P 78. A local rule must be read in conjunction with the Civil Rules, and cannot conflict in practice with the Civil Rules. (Opinion by Resnick; Moyer, Sweeney, Pfeifer, Grady, Stratton and O’Connor concur.) Hooten vs Safe Auto Ins, 100 Ohio St 3d 8, 2003-Ohio-4829, certified by Hamilton App
MOTION IN LIMINE
Evidence
Carolyn Vaught was treated by Peter Brooks MD at CC for chronic right knee pain. Two surgeries were unsuccessful, and further surgery by another physician showed a deficiency in Brooks’ work. Vaught sued for medical malpractice. CC and Brooks did not submit an expert list as required by the local rules; in its final pre-trial brief a week before trial, CC listed Brooks as the treating physician and expert witness. The trial court sustained Vaught’s motion in limine and the jury returned a verdict for her. The court of appeals and the Supreme Court affirmed. The local rules, and CR 26, require a party to make a good faith effort to submit a written expert report once a court has established a deadline. CC and Brooks did not identify Brooks as their expert, even when he was deposed. (Opinion by Resnick; Moyer, Sweeney, Pfeifer, Brogan and O’Connor concur; Stratton dissents.) Vaught vs Cleveland Clinic Found, 98 Ohio St 3d 485, 2003-Ohio-2181, appeal from Cuyahoga App
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CHANGES TO POLICY
Insurance Coverage
PTC employee Virginia Ramsey fell off a loading dock at work and was injured. She sued PTC for an employer’s intentional tort, related to failure to install a guardrail, and the jury returned a verdict in her favor. PTC’s insurer Cincinnati Insurance denied coverage for indemnification, asserting that the “Ohio Stop-Gap Employer’s Liability Coverage” had been deleted prior to the loss. The trial court granted summary judgment against PTC and the court of appeals and Supreme Court affirmed. Cincinnati notified PTC of the change in advance and it was countersigned by PTC’s agent a year prior to the loss, although PTC did not sign the change until two days after the loss. A principal may ratify the acts of its agent performed beyond the agent’s scope of authority, and such ratification relates back to the time of performance of the acts and binds the principal from that time. (Opinion by O’Connor; Moyer, Resnick, Sweeney, Slaby and Stratton concur; Pfeifer dissents.) Penn Traffic Co vs AIU Ins Co, 99 Ohio St 3d 227, 2003-Ohio-3371, appeal and cert by Pike App
DUTY TO DEFEND Roger Hastings sold his house to Jeffrey Anders, who sued him for failing to disclose defects in the structure. Hasting’s insurer CIC refused to provide a defense under homeowners and personal umbrella policies. Lee Reno sold his house to Jeffrey Cooper, who sued him for failing to disclose termite infestation. Reno’s homeowners insurer Guide One refused to provide a defense. CIC and Guide One filed declaratory judgment actions, and the trial courts granted summary judgments to the insurers. The court of appeals and the Supreme Court affirmed. Insurance policies covering personal injuries arising out of property damage do not provide coverage to homeowners who are sued for their negligent failure to disclose to purchasers damage that occurred during the seller’s occupancy. For liability coverage to exist, the property damage must arise out of an “occurrence,” which is an accident resulting in property damage. In these cases, the claims relate to the nondisclosure of damage, not to liability for the damage itself. (Opinion by Moyer; Resnick, Sweeney, Pfeifer, McMonagle, Stratton and O’Connor concur.) Cincinnati Ins Co vs Hastings, 99 Ohio St 3d 156, 2003-Ohio-3048, certified by Greene App COVERAGE FOR EMPLOYER’S TORTS PTC employee Virginia Ramsey fell off a loading dock at work and was injured. She sued PTC for an employer’s intentional tort, related to failure to install a guardrail, and the jury returned a verdict in her favor. PTC’s insurers denied coverage for indemnification. The trial court granted summary judgment to Cincinnati Insurance and the court of appeals and Supreme Court affirmed. The commercial general liability form provided coverage for liability arising from an “occurrence,: defined as an accident including continuous or repeated exposure to substantially the same general harmful conditions. The policy excluded bodily injury expected or intended from PTC’s point of view, and excluded bodily injury to PTC’s employees arising out of and in the course of employment. Intentional torts committed by an employer are outside the employment relationship and therefore not subject to workers compensation immunity, Blankenship v Cincinnati Milacron Corp, 69 Ohio St 2d 608 (1982). However, an injured employee may make a workers compensation claim and also sue her employer, Jones v VIP Dev Corp, 15 Ohio St 3d 90 (1984), and the intentional tort also arises out of and in the course of employment. A CGL policy that excludes coverage for injury to an employee arising out of or in the course of employment does not provide coverage for a substantially-certain-tooccur intentional tort claim. An endorsement provided additional coverage, but excluded bodily injury expected or intended from PTC’s viewpoint and exclude the coverage for this claim, Fyffe v Jeno’s Inc, 59 Ohio St 3d 115 (1991). (Opinion by O’Connor; Moyer, Resnick, Sweeney, Pfeifer, Slaby and Stratton concur.) Penn Traffic Co vs AIU Ins Co, 99 Ohio St 3d 227, 2003-Ohio-3371, appeal and cert by Pike App
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WHO IS AN “INSURED” IN UM COVERAGE Jason Galatis died in a 1994 auto accident caused by his driver Shawn Butler. Galatis’ estate settled with Butler and with Galatis’ parents’ UM insurer. Galatis’ father was employed by Oliver Printing, which had commercial auto and commercial general liability policies from Westfield. Galatis’ mother was employed by Quagliata’s Restaurants Inc, which had commercial auto and commercial general liability policies from Aetna. In 2000 the estate made UM claims against all four policies. The trial court ruled that all four policies had applicable UM coverage, but granted summary judgment against the estate based on late notice and breach of subrogation rights. While an appeal was pending, the estate settled with Westfield. The court of appeals affirmed the judgment in favor of Aetna on the basis that the policy had seven specific named individuals as insureds, and the ambiguity found in Scott-Pontzer v Liberty Mut Fire Ins, 85 Ohio St 3d 660 (1999), was not present. The Supreme Court affirmed. The court limited Scott-Pontzer to situations where the injured person was an employee of the policyholder and in the course and scope of employment, applying King v Nationwide Ins, 35 Ohio St 3d 208 (1988). The court overruled Ezawa v Yasuda Fire & Marine Ins, 86 Ohio St 3d 557 (1999). (Opinion by O’Connor; Moyer, DeGenaro and Stratton concur; Resnick, Sweeney and Pfeifer dissent.) Westfield Ins vs Galatis, 100 Ohio St 3d 216, 2003-Ohio-5849, certified by Summit App In re Uninsured and Underinsured Motorist Coverage Cases, 100 Ohio St 3d 302, 2003-Ohio-5888
NO UM IF SUDDEN EMERGENCY DEFENSE APPLIES Nino Gobbo was in a multi-car collision, but was found to be not at fault due to the sudden emergency doctrine. The Supreme Court noted that this precluded recovery from auto liability and uninsured motorist insurance coverages, since Gobbo was not at fault. (Opinion by Resnick; Moyer, Sweeney, Walters and Stratton; Pfeifer and O’Connor dissent.) Roman vs Estate of Gobbo, 99 Ohio St 3d 260, 2003-Ohio-3655, appeal from Cuyahoga App
CHAMPERTY AND MAINTENANCE
Torts
Roberta Rancman was injured in an auto accident and sued the at-fault driver. Rancman solicited ISF to advance funds against her pending claim. Future Settlement Funding Corporation advanced $6,000, and Rancman was obliged to repay $16,800 if the case settled within one year, $22,200 if the case settled in twelve to eighteen months, and $27,600 if the case settled in eighteen to twenty-four months. However, she owed nothing if she did not make a recovery. She was advanced an additional $1,000 in return for repayment of $2,800. Rancman then settled within a year for $100,000, and offered to repay the principal amount plus 8% annual interest. Rancman then sued ISF and FSF for recission and a finding that they committed an unfair sales practice. The trial court found violation of usury law and the Small Loan Act, §1321.01 et seq ORC, and ordered repayment of the loaned amount at 8% annual interest. The court of appeals ruled that since neither ISF nor FSF were licensed, the loans were void, §1321.02 ORC, prohibiting collection of any principal, interest or charges. The Supreme Court affirmed, finding the advances were void as champerty and maintenance, regardless of whether they were loans or investments. Maintenance is assistance to a litigant in pursuing or defending a lawsuit by someone who does not have a bona fide interest in the case. Champerty is a form of maintenance in which a non-party undertakes to further another’s interest in a suit in exchange for part of the litigated matter if a favorable result ensues. Historically, champertors and maintainors were attorneys, and DR 5-103 regulates these practices, but does not abolish the common law. (Opinion by O’Connor; Moyer, Resnick, Sweeney, Pfeifer, Christley and Stratton concur.) Rancman vs Interim Settlement Funding Corp, 99 Ohio St 3d 121, 2003-Ohio-2721, appeal from Summit App
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PREMISES LIABILITY Paul Armstrong entered the defendant’s store through the exit and tripped over the bracket of the shopping cart guardrail. He sued, the trial court granted summary judgment for BB based on an open and obvious danger, and the court of appeals and Supreme Court affirmed. The open and obvious doctrine states that an owner of premises owes no duty to persons entering the premises regarding dangers that are open and obvious. It is not concerned with causation, it stems from the landowner’s duty: the fact that the condition is open and obvious absolves the landowner from liability. It applies to owners and occupiers of premises, but not to independent contractors. Comparative negligence is not applicable nor does it limit the open and obvious doctrine. Ohio does not follow Restatement of the Law 2d, Torts (1965), §343A, which applies liability when the landowner should have anticipated harm caused by obvious dangers. (Opinion by Sweeney; Moyer, Resnick, Wise, Stratton and O’Connor concur; Pfeifer dissents.) Armstrong vs Best Buy Co Inc, 99 Ohio St 3d 79, 2003-Ohio-2573, appeal from and cert by Lorain App
DEFENSE: SUDDEN EMERGENCY Nino Gobbo’s car collided with several other cars and he was pronounced dead at the scene. The plaintiffs sued Gobbo’s estate. The jury returned a defense verdict based on sudden medical emergency, finding that Gobbo suffered a fatal heart attack prior to the collisions. The court of appeals and the Supreme Court affirmed. The sudden medical emergency defense, or the unforeseen unconsciousness defense, is a complete defense to alleged negligence, although the defendant has the burden of proving the defense. When a driver is suddenly stricken by a period of unconsciousness which he has no reason to anticipate, and which renders it impossible for him to control his car, he is not chargeable with negligence for failure to control the car. (Opinion by Resnick; Moyer, Sweeney, Pfeifer, Walters, Stratton and O’Connor concur.) Roman vs Estate of Gobbo, 99 Ohio St 3d 260, 2003-Ohio-3655, appeal from Cuyahoga App
IMMUNITY: EMERGENCY VEHICLES Cleveland police officer Daniel Connors witnessed a suspected drug sale and pursued the suspect’s car on a parallel route, not using lights or sirens. He stopped at an intersection and then moved forward, and was struck broadside by James Colbert. Colbert sued. The trial court granted summary judgment for Cleveland, and the court of appeals and Supreme Court affirmed. Statutory immunity applies to negligent operation (in the absence of willful or wanton misconduct) of a motor vehicle by a police officer responding to an emergency call. The term emergency call is defined as a call to duty, §2744.01 (A) ORC; it includes an obligatory task, conduct service or function required of police officers. This investigation of a suspected drug sale comes qualifies as a call to duty and therefore as an emergency call. (Opinion by Stratton; Resnick, Sweeney and O’Connor concur; Moyer, Pfeifer and Wise dissent.) Colbert vs Cleveland, 99 Ohio St 3d 215, 2003-Ohio-3319, appeal from Cuyahoga App
MITIGATION OF DAMAGES
Damages
Frenchtown leased space in its mall to Lemstone to operate a bookstore. Frenchtown later leased space to a competitor of Lemstone. Lemstone abandoned the location about six months prior to the end of the lease. Lemstone did not pay further rent and Frenchtown did not re-lease the location. Frenchtown then sued Lemstone for unpaid rent and related expenses, and Lemstone raised a defense of failure to mitigate damages. The trial court granted summary judgment to Frenchtown. The court of appeals reversed, ruling that Frenchtown, as a commercial lessor, had a duty to mitigate damages. The Supreme Court affirmed. At common law, leases were treated as transfers or conveyances of real property; a landlord had no duty under property law to mitigate damages. Modern leases are more than simple property interest transfers; they have contractual qualities and arise from a bargained-for relationship. The modern trend is to apply contract law, requiring a reasonable effort by the landlord to mitigate damages. Mitigation of damages, or the doctrine of unavoidable consequences, place an injured party in as good a position had the contract not been breached, at the least cost to the defaulting party. (Opinion by O’Connor; Moyer, Resnick, Sweeney, Pfeifer, Bryant and Stratton concur.) Frenchtown Square Partnership vs Lemstone, 99 Ohio St 3d 254, 2003-Ohio-3648, appeal from Mahoning App
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PUNITIVE DAMAGES Curtis Campbell was sued by Todd Ospital’s estate and Robert Slusher for injuries resulting from an auto collision. His auto insurer State Farm did not accept a demand for policy limits, and the verdict was in excess of limits. After appeals, State Farm paid the entire verdict. Campbell then sued State Farm for bad faith. The jury awarded $2.6 million compensatory damages (reduced by the trial court to $1 million) and $145 million punitive damages. The U S Supreme Court reversed, ruling that in general punitive damages should not exceed two, three or four times the compensatory damages. State Farm Ins vs Campbell, 538 US ___, 2003 LEXIS 2713
CASES Armstrong vs Best Buy Co Inc, 99 Ohio St 3d 79, 2003-Ohio-2573 ................................................................................10 Cincinnati Ins Co vs Hastings, 99 Ohio St 3d 156, 2003-Ohio-3048 ................................................................................. 8 Cincinnati SMSA LP vs Pub Util Comm, 98 Ohio St 3d 282, 2002-Ohio-7235 ................................................................ 1 Colbert vs Cleveland, 99 Ohio St 3d 215, 2003-Ohio-3319 ..............................................................................................10 Frenchtown Square Partnership vs Lemstone, 99 Ohio St 3d 254, 2003-Ohio-3648 ........................................................10 Gordon vs Gordon, 98 Ohio St 3d 334, 2003-Ohio-1069................................................................................................4, 7 Hooten vs Safe Auto Ins, 100 Ohio St 3d 8, 2003-Ohio-4829 ........................................................................................... 7 In re Consol Mtge Satisfaction Cases, 97 Ohio St 3d 465, 2002-Ohio-6720 ..................................................................... 5 In re Jones, 99 Ohio St 3d 203, 2003-Ohio-3182 ............................................................................................................... 3 In re Subpoena Duces Tecum Served Upon Atty Potts, 100 Ohio St 3d 97, 2003-Ohio-5234 .......................................... 3 In re Uninsured and Underinsured Motorist Coverage Cases, 100 Ohio St 3d 302, 2003-Ohio-5888 ............................... 9 Judy vs Ohio Bur of Motor Vehicles, 100 Ohio St 3d 122, 2003-Ohio-5277 .................................................................... 5 Keller vs Columbus, 100 Ohio St 3d 192, 2003-Ohio-5599............................................................................................... 2 Leon vs Boardman Twp, 100 Ohio St 3d 335, 2003-Ohio-6466 ........................................................................................ 4 Maestle vs Best Buy Co, 100 Ohio St 3d 330, 2003-Ohio-6465 ........................................................................................ 4 New Par vs Pub Util Comm, 98 Ohio St 3d 277, 2002-Ohio-7245 .................................................................................... 1 Ohio State Bldg & Constr Trades Council vs Cuyahoga Cty Bd of Commrs, 98 Ohio St 3d 214, 2002-Ohio-7213 ......... 1 Penn Traffic Co vs AIU Ins Co, 99 Ohio St 3d 227, 2003-Ohio-3371 ............................................................................... 8 R W Sidley Inc vs Crawford, 100 Ohio St 3d 113, 2003-Ohio-5101 ..............................................................................4, 6 Rancman vs Interim Settlement Funding Corp, 99 Ohio St 3d 121, 2003-Ohio-2721 ....................................................... 9 Roman vs Estate of Gobbo, 99 Ohio St 3d 260, 2003-Ohio-3655.................................................................................9, 10 Shampton vs Springboro, 98 Ohio St 3d 457, 2003-Ohio-1913 ......................................................................................... 6 State ex rel AFL-CIO vs Ohio Bur Workers Comp, 97 Ohio St 3d 504, 2002-Ohio-6717 ................................................ 2 State ex rel Ahmed vs Costine, 100 Ohio St 3d 36, 2003-Ohio-4776 ................................................................................ 5 State ex rel Ahmed vs Costine, 99 Ohio St 3d 212, 2003-Ohio-3080 ................................................................................ 3 State ex rel Beacon Journal Pub Co v Bond, 98 Ohio St 3d 146, 2002-Ohio-7117 ........................................................... 2 State ex rel Benbow vs Runyan, 99 Ohio St 3d 410, 2003-Ohio-4127 .............................................................................. 5 State ex rel Cincinnati Enquirer etc vs Dupuis, 98 Ohio St 3d 126, 2002-Ohio 7041 ........................................................ 3 State ex rel Conkle vs Sadler, 99 Ohio St 3d 402, 2003-Ohio-4124 .................................................................................. 5 State ex rel Ohio Dept of Mental Health vs Nadel, 98 Ohio St 3d 405, 2003-Ohio-1632 .................................................. 2 State ex rel R W Sidley Inc vs Crawford, 100 Ohio St 3d 113, 2003-Ohio-5101 ...........................................................4, 6 State ex rel State vs Lewis, 99 Ohio St 3d 97, 2003-Ohio-2476 ........................................................................................ 6 State ex rel Wilkerson vs Reed, 99 Ohio St 3d 106, 2003-Ohio-2506 ............................................................................... 6 State Farm Ins vs Campbell, 538 US ___, 2003 LEXIS 2713 ............................................................................................11 State vs Fisher, 99 Ohio St 3d 127, 2003-Ohio-2761 ......................................................................................................... 4 Vaught vs Cleveland Clinic Found, 98 Ohio St 3d 485, 2003-Ohio-2181 ......................................................................... 7 Westfield Ins vs Galatis, 100 Ohio St 3d 216, 2003-Ohio-5849 ........................................................................................ 9
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