Check here for the latest court decisions and legislation affecting insurance law........
Associate attorney Kyle Hackett and Jerry Rolfes won an appeal from the Sixth Circuit Federal Court upholding a summary judgment in favor of an insurance company client against which an action had been filed to recover upon an almost $700,000.00 default judgment against a former tenant of the insurance company’s insured landlord/former-owner. The Plaintiff was bitten by a dog while visiting the insured rental property of the former tenant who was purchasing the property from the landlord/seller on a land contract and the tenant had already received title to the property, and he still occupied the premises, when the bite occurred. Though the Plaintiffs tried to argue the owner/former-tenant should be found as an employee or “resident employee” of the landlord/former-owner, the court disagreed with Plaintiffs’ interpretation of the language of the policy and applicable case law.
In a case arising from a fire to an apartment building, the United States Court of Appeals for the Tenth Circuit reversed the decision of the trial court, thereby vacating a jury verdict and judgment of more than $6.2 Million. Matthew J. Smith argued the case and handled the appeal. The Court of Appeals opinion focused on the Coinsurance and Law and Ordinance provisions of the insurance policy. The three-judge appellate panel unanimously decided the district court judge committed prejudicial error by excluding from the jury any reference to coinsurance. The Court reasoned that because the jury was unaware of the Coinsurance provision, the jury was unable to understand the strong incentives the policyholder and the insurer had to assert their respective valuations of the apartment complex. The Court further determined the district court judge had erred in excluding law and ordinance costs in determining the value of the apartment complex under the Coinsurance provision of the policy. The Court of Appeals vacated the judgment in its entirety and remanded the case back to the trial court for a new trial. The case caption is Boardwalk Apartments, L.C. v. State Auto Property & Casualty Ins. Co., 10th Circuit Court of Appeals, Case No. 15-3070. The Court published its opinion, which is significant as there have been relatively few federal court coinsurance decisions favorable to insurers.
- Smith, Rolfes & Skavdahl Co., L.P.A. Obtains Defense Verdict in $6.1 Million Product Liability Federal Jury Trial
On December 21, 2015, attorney John Fiocca of our Columbus office obtained a unanimous defense verdict in a product liability/personal injury case following a two week, $6.1 million federal jury trial in Youngstown. Plaintiff claimed the safety harness he was wearing while hunting deer from his tree stand and sold by the defendant was defective in manufacture and broke, causing plaintiff to fall several feet to the ground. Plaintiff sustained life threatening injuries, including multiple skull, neck, clavicle, and rib fractures; multiple spinal fractures requiring surgery; multiple brain hemorrhages; a punctured lung; permanent orthopedic and neurologic impairment; permanent and substantial physical deformity; and permanent cognitive impairment. Despite the testimony of three eyewitnesses plaintiff was wearing a safety harness at the time he was found lying in the woods, defense counsel convinced the jury the plaintiff was not wearing any safety harness at the time of the accident. Bruce Keck v. New Day Enterprises, Inc., p/k/a and/or d/b/a API Outdoors, Inc., et al. United States District Court for the Northern District of Ohio, Eastern Division, Case No. 4:13-cv-00185-BYP.
- Favorable Ruling in a Undisputed Auto Accident Personal Injury Lawsuit
Jerry Rolfes obtained in December 2013 a favorable defense verdict at jury trial in Hamilton county (Cincinnati) in an undisputed auto accident personal injury lawsuit in which the Plaintiff claimed over $105,000 in medical expenses, (in large part for a total knee replacement surgery) for her complaints of knee injury, and back/neck and shoulder soft-tissue injuries. The jury awarded to Plaintiff only slightly over $6000 of her claimed medical expenses, plus $10,000 for pain and suffering. Despite the Plaintiff’s claim of aggravation to her pre-existing knee condition, the jury excluded the knee surgery due to the evidence of her pre-existing issues. Plaintiff had demanded $150,000 but reduced their last demand to $75,000 within days of trial; defendant had expressed willingness before trial to extend up to $20,000 to which no response was made by Plaintiff.
Our law firm recently received a favorable decision in Butler County, Ohio, upholding an insurer’s right to investigate a wind loss claim and protecting the insurer’s claim file from disclosure during the investigation. During the claim investigation, the policyholder filed an application with the court to prevent the insurer from conducting its EUO or requesting documents. Instead, the policyholder requested the court first order the insurer to hand over its claim file. The plaintiff issued subpoenas for the claim managers to testify and produce their file at the injunction hearing. Following a motion hearing, the court denied the application for injunction and vacated the evidentiary hearing. The court held in part, “Under the policy, (the insured) is not entitled to the claim adjusters’ files. (The insurer) may investigate the claim pursuant to the terms of the contract.”
The 12th Appellate District upheld a Motion for Summary Judgment our law firm won in the Butler County Court of Common Pleas. In Whisner v. Farmers Ins. Of Columbus, Inc., Plaintiff claimed there were delays in the processing of his medical payment claim. Both the trial court and appellate court disagreed, noting Plaintiff was informed on multiple occasions of the steps he would need to follow if he wanted his claim paid, and he continually failed to follow those steps.
- Favorable Ruling in a Bad Faith and Breach of Contract Suit
Jerry Rolfes recently obtained a favorable ruling by the Adams County, Ohio Common Pleas Court upon an insurance coverage issue in a bad faith and breach of contract suit arising from the definition of “residence premises” contained in the policy. The court found in favor of the defendant insurance carrier upon our Motion for Summary and Declaratory Judgment, ruling the plaintiff/insured having moved out of his residential premises/home and renting it for a period of more than seven years before the date of the subject fire loss, combined with the insured’s failure to give any notification to his agent or the insurance carrier, allowed the court to find in favor of the carrier because of the plain language in the policy requiring the insured to use the insured premises as the primary residential dwelling of the insured. No appeal was pursued by the Plaintiff of this decision.
Tom Glassman won on a Motion for Summary Judgment in the Summit County Court of Common Pleas in a suit stemming from a double fatality auto accident. One of Plaintiff’s employees was involved in an auto accident which killed two people in West Virginia. The estates filed suit against the employer and employee. Coverage was disclaimed as the insurer determined hired and non-owned auto coverage was unavailable. Following multi-million dollar settlements of the wrongful death claims, the employer sued their insurance agent and broker, alleging they should have been provided hired and non-owned auto coverage. Summary judgment was granted in favor of both the insurer and the agent.
Attorney Jessica M. Grogan drafted a successful Motion for Summary Judgment in an action filed in the Hamilton County Common Pleas Court by a tenant against his landlord alleging liability based on common law negligence and negligence per se in failing to maintain the leased property in a safe and habitable condition as required by the Landlord Tenant Act, O.R.C. § 5321.04. This case involved a tenant who allegedly was injured when drywall fell from his kitchen ceiling. The Court determined the landlord was entitled to summary judgment because the tenant failed to demonstrate the landlord received the requisite actual or constructive notice required by Ohio law. The Court explained “[i]t is not reasonable to infer that a defective ceiling in another part of the building or, water damage that came in under the floor soaking the carpet, supports an inference… [the landlord] had notice of [the tenant’s]ceiling condition.”
Following a four day jury trial before Hon. Algenon L. Marbley in the US District Court for the Southern District of Ohio, a jury returned a verdict in favor of the defendant insurance company on all counts. Plaintiffs filed suit alleging both breach of contract and “bad faith” following denial of their insurance claim. The claim was denied under both the “intentional acts” exclusion as well the “Misrepresentation, Concealment or Fraud” provisions of the policy.
Patrick Schomaker defended the case, which by trial consisted solely on the breach of contract issue as all “bad faith” claims were eliminated via partial summary judgment (click here to view the Court’s Summary Judgment Order). There was no dispute the fire was an act of arson, but at trial plaintiffs argued any misrepresentations they may have made were not “material” to the claim, and also suggested a jealous ex-husband likely set the fire.
After 2 ½ hours of deliberation, the jury returned a verdict for the insurer on all counts.
Attorney Jeremiah Seebohm drafted a successful Motion for Summary Judgment in an action filed in the Montgomery County Common Pleas Court by a homeowner against his remediation contractor. The Court determined the insurer did not have a duty to defend or indemnify its insured for claims asserted against it for the homeowner for violations of the Ohio Consumer Sales Practices Act, the Ohio Home Sales Solicitation Act, and claims for breach of contract and tort claims for failure to provide work or services in a workmanlike manner. The Court determined failure to perform its remediation contract “in a workmanlike manner” did not result in personal injury or property damage, and as such, there was no “occurrence” which would have triggered defense or indemnification coverage.
- On May 3, 2012, Andy Sway presented on an investigation to the Legal Ethics and Professional Conduct Committee of the Ohio State Bar Association at the OSBA Annual Convention.
The final settlement demands made by the Plaintiffs at mediation were six hundred eighty-two thousand dollars ($682,000.00) for the ex-husband and seventy-five thousand dollars ($75,000.00) for the ex-wife. In response, offers of five thousand dollars ($5,000.00) were made to the ex-husband/Plaintiff and three thousand dollars ($3,000.00) to the ex-wife/plaintiff.
In a July, 2011 week long jury trial, Jerry Rolfes obtained a favorable verdict in Hamilton County Common Pleas Court of a combined total of slightly over eight thousand, three hundred dollars ($8,300.00) for two Plaintiffs who alleged soft-tissue injury in a sideswipe two vehicle accident. The ex-husband/plaintiff claimed in excess of forty-eight thousand, nine hundred dollars ($48,900.00) in chiropractic treatment and expenses. The ex-wife/plaintiff claimed over seventeen thousand, one hundred dollars ($17,100.00) in chiropractic expenses, in addition to other emergency room and hospital/doctor treatment expenses.
The jury found credibility an issue, and determined the chiropractic treatment/expenses to be excessive. It accordingly awarded the ex-husband four thousand, seven hundred thirty-six dollars and twenty-two cents ($4,736.22) and the ex-wife three thousand, six hundred fifteen dollars and sixty-five cents ($3,615.65) above the respective ten thousand dollar ($10,000.00) and approximately seven thousand, five hundred dollar ($7,500.00) amounts which had been paid on behalf of the Plaintiffs as PIP benefits under their Kentucky auto coverage. The PIP carrier had intervened as a Plaintiff in the suit.
- Michigan Trial Court Decision on Whether Arson Constitutes Vandalism
- Kentucky Supreme Court Decision on Basic Reparations Benefits
- Kentucky Supreme Court Decision on Excess Insurance Clauses
- Kentucky Supreme Court Decision on UM/UIM Coverage
- Kentucky Supreme Court Decision on Open and Obvious Doctrine
- UPDATE - Amendments to the Kentucky Mine Subsidence Reinsurance Plan
- Michigan Supreme Court Decision on No-Fault Threshold
- Ohio Supreme Court Decision on Recoverability of Attorney-Fee under an Insurance Policy
- Ohio Supreme Court Decision on Equitable Contribution
- Ohio Supreme Court Decision on Admissibility of Evidence of Medical Bill "Write-Offs"
- Summary Judgment Obtained in Suit for Wrongful Death of Young Man in Residential Premises Fire
Jerry Rolfes and Gary Hall obtained summary judgment in June 2010 in a wrongful death suit in Clermont County Common Pleas Court arising from a residential premises fire that tragically resulted in the August 2007 death of a young adult man. The suit had alleged negligence of the homeowners who had removed several smoke detectors for remodeling/painting or had failed to maintain other hardwired units. Focusing in part upon the law applicable to social hosts and their guests, the trial court found no breach of any applicable duty, and also found a lack of any evidence of causation being established by plaintiff's human factors and fire protection engineering experts or otherwise. Plaintiff chose to not pursue any appeal of the summary judgment decision.
- Summary Judgment Granted in Premises Liability Suit Arising from the Death of a Child
Matthew Smith and Tom Glassman obtained summary judgment in favor of the owner and manager of an apartment complex in a Franklin County premises liability case arising from the October 2006 death of a 23-month boy who was killed when he came into contact with a super-duty, dual-wheeled pickup truck on a driveway/parking area in the apartment complex. The pickup truck belonged to a pizza delivery man who parked the vehicle approximately 20 feet away from a playground in the apartment complex while he delivered a pizza. The child was playing on the playground minutes before the pizza delivery man arrived and parked his pickup truck. The adults responsible for supervising the child did not witness his departure from the playground or his approach to the pickup truck. The child, who somehow came to be underneath the pickup truck, was crushed when the pizza delivery man returned to his vehicle and began to drive away. Plaintiff alleged that the playground was unsafe because it was immediately-adjacent to driveway/parking areas and it was not enclosed by a fence. Plaintiff asserted claims against the apartment complex defendants for wrongful death, survivorship, and punitive damages. The trial court granted summary judgment to the apartment complex defendants on the grounds that the positioning of and lack of fencing around the playground in question were open and obvious conditions on the premises which the defendants had no duty to warn persons of or against. Attorneys Smith and Glassman will be pleased to discuss this case, general issues of premises liability, or their handling of other significant tort cases, with interested persons.
- Summary Judgment Granted in Bad Faith Suit Claiming Mold Damage to Home
Tom Glassman of our firm won a motion for summary judgment on behalf of Farmers Insurance of Columbus, Inc. in a bad faith suit in the Stark County Court of Common Pleas. The homeowners alleged their mold claim was not properly handled, leading them to lose their home and file for bankruptcy. The trial court dismissed both the bad faith claims and breach of contract claims.
- Summary Judgment Granted in Hotel Drowning Suit
Gary Hall of our firm won a motion for summary judgment in the United States District Court for the Southern District of Ohio, resulting in the dismissal of a wrongful death suit stemming from a drowning incident at our clients’ hotel. Plaintiffs alleged multiple violations of the Ohio Administrative Code, and those allegations were rejected by the application of the open and obvious defense.