Learned Treatise – Necessity for Publication
Peat v. Univ. Hosp. Health Sys. Bedford Med. Ctr., (2005) 159 Ohio App.3d. 638
The Eighth District Court of Appeals interpreted Evidence Rule 706 which is entitled “Learned Treatises for Impeachment.” The Court specifically held that publication of the learned treatise is a precondition to introduction of the learned treatise at trial. The Court stated in paragraphs 13 through 15 of its opinion, the following:
“Thus, in order for the writing to be considered admissible for impeachment, it must be a ‘published’ writing. The rules of evidence do not define ‘published’ in this context. Therefore, we look to its ordinary meaning. Black’s Law Dictionary defines ‘publish’ as ‘[t]o make public; to circulate; to make known to people in general. To issue; to put into circulation.’ Moreover, ‘publication’ is defined as ‘[t]he act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. An advising of the public; a making known of something to them for a purpose.’
Ohio courts have had the opportunity to define ‘publish’ and ‘publication’ in other contexts. (citations omitted) (‘publication’ pursuant to Webster’s Dictionary was defined as ‘the act of publishing,’ and ‘publish’ meant ‘to make generally known’) (citation omitted) (‘publish’ pursuant to Black’s Law Dictionary was defined as ‘to place before the public as though in mass media’) (citations omitted) (‘publish’ pursuant to Webster’s Third New International Dictionary is defined as ‘to put out an edition or circulate it to the public’).
It is undisputed that the Guidelines were an internal document of the University of Kentucky’s Department of Emergency Medicine. There was no evidence demonstrating that the Guidelines were ‘published’ under the common and ordinary meaning of the word because they were not circulated to the public or put before public scrutiny.”
On that basis, the Court held that the Guidelines were inadmissible at trial.
Stipulations of Counsel – Enforceability
Crow v. Nationwide Mutual Insurance Company (2004) 159 Ohio App3d 417
The Fifth District Court of Appeals handed down an interesting decision which basically upheld the invalidation, by the trial court, of a stipulation entered into by both attorneys. Counsel for the plaintiff and counsel for Nationwide Insurance Company had stipulated that the policy provided uninsured/underinsured motorist coverage in the amount of $1,000,000. However, subsequent to the Ohio Supreme Court’s decision in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003), counsel for Nationwide Insurance Company sought to strike those stipulations based upon the recent Supreme Court decision.
The trial court agreed to strike the stipulation and the Court of Appeals upheld the lower court’s action differentiating between enforceable stipulations which are those limited to facts, and unenforceable stipulations which are matters dealing with legal conclusions. The Court stated in its syllabus, the following:
“1. Stipulation between automobile insurer and insured that policy provided underinsured motorist (UIM) coverage concerned a legal conclusion and thus was not binding on trial court in insured’s declaratory-judgment action alleging that UIM coverage existed regarding automobile accident, and thus trial court acted within its discretion when it struck stipulation at insurer’s request.
2. ‘Stipulation’ is a voluntary agreement entered into between opposing parties concerning the disposition of some relevant point to avoid the necessity for proof on an issue.
...
5. Although litigants may stipulate to facts, they may not stipulate as to what the law requires.
6. Stipulation of law or stipulations as to legal conclusions are not binding upon the court..”
The Appellate Court affirmed the lower court’s decision not to enforce the stipulation and entered summary judgment on behalf of Nationwide Insurance Company.
FIRM UPDATES
On February 22, 2005, the law firm of Curtin & Associates, LLP argued the case of Harris v. Allstate Ins. Co. (2005), 2005-Ohio-1641 before the Fifth District Court of Appeals. On April 4, 2005, the Court issued its written opinion addressing the two issues before it: 1) whether the policy language in the insurance policy at issue clearly and unambiguously consolidated the family members’ derivative wrongful death claims to a single injury under the per-person portion of the policy; and 2) whether Allstate was allowed a setoff under the “other parties legally responsible” portion of its policy for settlement monies paid by the former employer’s insurance company to the estate of the decedent. The Fifth District Court of Appeals overturned the Stark County Court of Common Pleas on the per-person argument and affirmed it on the issue of setoff.
In 1995, Martin Harris died as a result of carbon monoxide poisoning in an uninsured mobile home. After suing the tortfeasors, the Estate of Martin Harris brought uninsured motorists claims under each of their two insurance policies. The Estate also brought suit against Martin Harris’ former employer’s insurance carrier under a Scott-Pontzer theory of recovery. The insurance carrier of the former employer settled the Scott-Pontzer claim prior to Galatis being issued. Thus, only the uninsured motorist claims remained pending.
The Estate argued that the policies at issue were ambiguous and that each of their claims were subject to the per-accident portion of the policy, not the per-person portion. They argued that each of the four family members were entitled to $100,000 for a total recovery of $400,000 under the per-accident portion. Counsel for Allstate argued that the language was clear and unambiguous and therefore the maximum recovery was $200,000 ($100,000 per each of the two policies). The language at issue read,
“1. “each person” is the maximum that we will pay for damages arising out of bodily injury to one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury.”
The Court of Appeals determined that the language clearly and unambiguously consolidated the derivative wrongful death claims to the “each person” section of the policy as advanced by counsel for Allstate. In addition to the “each person” language, the Court examined the definition of bodily injury, which included the term “death.” As such, the Court held the language clearly and unambiguously limited all the wrongful death claims to one per-person portion of each of the two policies. The Court also determined that Allstate was not entitled to a setoff of the Scott-Pontzer settlement amount as the policy language did not specifically provide for setoff of the amount paid by anyone other than those on behalf of the tortfeasor. Overall, the Court reduced the total exposure under the policies by $200,000.
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Learned Treatise – Necessity for Publication
Peat v. Univ. Hosp. Health Sys. Bedford Med. Ctr., (2005) 159 Ohio App.3d. 638
The Eighth District Court of Appeals interpreted Evidence Rule 706 which is entitled “Learned Treatises for Impeachment.” The Court specifically held that publication of the learned treatise is a precondition to introduction of the learned treatise at trial. The Court stated in paragraphs 13 through 15 of its opinion, the following:
“Thus, in order for the writing to be considered admissible for impeachment, it must be a ‘published’ writing. The rules of evidence do not define ‘published’ in this context. Therefore, we look to its ordinary meaning. Black’s Law Dictionary defines ‘publish’ as ‘[t]o make public; to circulate; to make known to people in general. To issue; to put into circulation.’ Moreover, ‘publication’ is defined as ‘[t]he act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. An advising of the public; a making known of something to them for a purpose.’
Ohio courts have had the opportunity to define ‘publish’ and ‘publication’ in other contexts. (citations omitted) (‘publication’ pursuant to Webster’s Dictionary was defined as ‘the act of publishing,’ and ‘publish’ meant ‘to make generally known’) (citation omitted) (‘publish’ pursuant to Black’s Law Dictionary was defined as ‘to place before the public as though in mass media’) (citations omitted) (‘publish’ pursuant to Webster’s Third New International Dictionary is defined as ‘to put out an edition or circulate it to the public’).
It is undisputed that the Guidelines were an internal document of the University of Kentucky’s Department of Emergency Medicine. There was no evidence demonstrating that the Guidelines were ‘published’ under the common and ordinary meaning of the word because they were not circulated to the public or put before public scrutiny.”
On that basis, the Court held that the Guidelines were inadmissible at trial.
Stipulations of Counsel – Enforceability
Crow v. Nationwide Mutual Insurance Company (2004) 159 Ohio App3d 417
The Fifth District Court of Appeals handed down an interesting decision which basically upheld the invalidation, by the trial court, of a stipulation entered into by both attorneys. Counsel for the plaintiff and counsel for Nationwide Insurance Company had stipulated that the policy provided uninsured/underinsured motorist coverage in the amount of $1,000,000. However, subsequent to the Ohio Supreme Court’s decision in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003), counsel for Nationwide Insurance Company sought to strike those stipulations based upon the recent Supreme Court decision.
The trial court agreed to strike the stipulation and the Court of Appeals upheld the lower court’s action differentiating between enforceable stipulations which are those limited to facts, and unenforceable stipulations which are matters dealing with legal conclusions. The Court stated in its syllabus, the following:
“1. Stipulation between automobile insurer and insured that policy provided underinsured motorist (UIM) coverage concerned a legal conclusion and thus was not binding on trial court in insured’s declaratory-judgment action alleging that UIM coverage existed regarding automobile accident, and thus trial court acted within its discretion when it struck stipulation at insurer’s request.
2. ‘Stipulation’ is a voluntary agreement entered into between opposing parties concerning the disposition of some relevant point to avoid the necessity for proof on an issue.
...
5. Although litigants may stipulate to facts, they may not stipulate as to what the law requires.
6. Stipulation of law or stipulations as to legal conclusions are not binding upon the court..”
The Appellate Court affirmed the lower court’s decision not to enforce the stipulation and entered summary judgment on behalf of Nationwide Insurance Company.
FIRM UPDATES
On February 22, 2005, the law firm of Curtin & Associates, LLP argued the case of Harris v. Allstate Ins. Co. (2005), 2005-Ohio-1641 before the Fifth District Court of Appeals. On April 4, 2005, the Court issued its written opinion addressing the two issues before it: 1) whether the policy language in the insurance policy at issue clearly and unambiguously consolidated the family members’ derivative wrongful death claims to a single injury under the per-person portion of the policy; and 2) whether Allstate was allowed a setoff under the “other parties legally responsible” portion of its policy for settlement monies paid by the former employer’s insurance company to the estate of the decedent. The Fifth District Court of Appeals overturned the Stark County Court of Common Pleas on the per-person argument and affirmed it on the issue of setoff.
In 1995, Martin Harris died as a result of carbon monoxide poisoning in an uninsured mobile home. After suing the tortfeasors, the Estate of Martin Harris brought uninsured motorists claims under each of their two insurance policies. The Estate also brought suit against Martin Harris’ former employer’s insurance carrier under a Scott-Pontzer theory of recovery. The insurance carrier of the former employer settled the Scott-Pontzer claim prior to Galatis being issued. Thus, only the uninsured motorist claims remained pending.
The Estate argued that the policies at issue were ambiguous and that each of their claims were subject to the per-accident portion of the policy, not the per-person portion. They argued that each of the four family members were entitled to $100,000 for a total recovery of $400,000 under the per-accident portion. Counsel for Allstate argued that the language was clear and unambiguous and therefore the maximum recovery was $200,000 ($100,000 per each of the two policies). The language at issue read,
“1. “each person” is the maximum that we will pay for damages arising out of bodily injury to one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury.”
The Court of Appeals determined that the language clearly and unambiguously consolidated the derivative wrongful death claims to the “each person” section of the policy as advanced by counsel for Allstate. In addition to the “each person” language, the Court examined the definition of bodily injury, which included the term “death.” As such, the Court held the language clearly and unambiguously limited all the wrongful death claims to one per-person portion of each of the two policies. The Court also determined that Allstate was not entitled to a setoff of the Scott-Pontzer settlement amount as the policy language did not specifically provide for setoff of the amount paid by anyone other than those on behalf of the tortfeasor. Overall, the Court reduced the total exposure under the policies by $200,000.
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.