Duty of Care – Recreational Activities – Application of
Marchetti v. Kalish (1990) 53 Ohio St.3d 95
Thompson v. Park River Corporation, 161 Ohio App.3d 502 (2005):
In Thompson v. Park River Corporation, the First District Court of Appeals had an opportunity to review and apply the controlling decision in the context of recreational activities – Marchetti v. Kalish. Marchetti v. Kalish was argued, at the Supreme Court level, by G. Michael Curtin of Curtin & Associates, LLP.
The Thompson court dealt with the situation wherein an individual had been injured at a swimming pool. The court stated at paragraphs 14-18 of its opinion, the following:
“The general rule is that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for an injury unless it can be shown that the other party’s actions were either reckless or intentional. Marchetti (citations omitted). The rule is the same for children and adults. (citations omitted) The rule applies whenever the parties involved are ‘engaging in some type of recreational or sports activity’ regardless of whether it is ‘organized, unorganized, supervised, or unsupervised.’
...
the court in Marchetti, and later in Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 116, made clear that it wanted to avoid an analysis that attempted to ‘delve into the minds of children to determine whether they understand the rules of the recreational or sports activity that they are engaging in’ and to focus instead on ‘the conduct or actions of the tortfeasor.’ Marchetti, 53 Ohio St.3d at 99, 559 N.E.2d 699. By requiring that a tortfeasor in a recreational activity be found to have acted either recklessly or intentionally before an injured party can recover damages, the court made clear that the tortfeasor must have actually intended the consequences of his act or have known or should have known that his conduct could cause such consequences, thus making his behavior substantially worse than mere negligence.”
The case is instructive for any individuals dealing with litigation under a home owner’s policy for children or adults participating in a recreational or sports activity.
Uninsured Motorist – Default Judgment –
Uninsured Motorist Carrier Bound by the Judgment
Amir-Tahmasseb v. Reyes 162 Ohio App.3d 44 (2005):
Curtin & Associates, LLP frequently receives inquiries on the issue of whether or not an uninsured motorist carrier is bound by a default judgment rendered against the uninsured motorist. The analysis typically turns with an examination of the policy language and most commonly results in a determination that an uninsured motorist carrier is not bound by a default judgment rendered against an uninsured motorist.
In Amir-Tahmasseb v. Reyes 162 Ohio App.3d 44 (2005), the uninsured motorist carrier issued a policy to its insured which included language that if an agreement could not be reached as to entitlement to damages, the matter “may go to arbitration.” In addition, the policy also included additional language found in insurance contracts to the effect that any judgment against an uninsured motorist would not be binding, absent the written consent of the uninsured motorist carrier. The defense counsel on behalf of the uninsured motorist carrier timely intervened into a lawsuit having been filed by the plaintiff as against the uninsured motorist but, one day prior to the motion for intervention being granted, counsel for the plaintiff filed a default judgment as against the uninsured motorist. Default judgment was granted as it pertains to liability and damages and subsequent to that, the plaintiff sought to enforce the default judgment as against the uninsured motorist.
The court indicated that the arbitration provision was not mandatory and, instead, only indicated that the parties “may go” to arbitration. Additionally, the court noted that the arbitration provision was limited and specifically excluded arbitration of any issues involving coverage and further noted that the policy required a consent prior to any judgment against the uninsured motorist being binding as against the uninsured motorist carrier.
Despite the foregoing clear and unequivocal steps undertaken by the uninsured motorist carrier, the court stated in its opinion in paragraph 39-41, the following:
“Nationwide did expressly object to being bound by any judgment obtained against the uninsured motorist; however, under the circumstances of this case, we believe that the consent clause in the policy was waived and Nationwide’s assertion was inconsequential ...
In this respect, the purpose of a consent clause is prophylactic: to protect the insurer’s interest in resolving a recovery dispute through arbitration. Where an insured does not pursue arbitration or, perhaps more important, where the parties have no right or duty to arbitrate, it would follow that it simultaneously waives its right to deny consent. See id., generally.”
Curtin & Associates, LLP has studied and restudied this opinion and, in all candor, cannot understand how the uninsured motorist carrier: “... simultaneously waived its right to deny consent.” The appellate court’s theoretical underpinnings were explained in paragraphs 42 and 43 of its opinion wherein it stated the following:
“Pursuant to our analysis above, an integrated interpretation of the policy indicates that Nationwide’s failure to affirmatively include a mandatory arbitration provision (and use it) nullified its right to deny the binding effect of the default judgment in question via waiver...
Affording the insurer carte blanche to deny the binding effect of a default judgment where it has reserved no right in its policy to arbitrate gives the insurer the power to object, without justification, to the binding effect of a valid judgment whenever it feels like it... Such unchecked authority could be used arbitrarily and would put a powerful tool in the hands of a party whose bargaining power and resources are almost invariably greater than that of the insured.”
As previously noted, the case was decided in the Eleventh District Court of Appeals and was a unanimous decision. The opinion does not indicate that any appeal was taken to the Ohio Supreme Court.
Duty to Defend – Criminal Acts
Ohio Govt. Risk Mgt. Plan v. Harrison, 161 Ohio St.3d 726 (2005):
The Third District Court of Appeals handed down a decision with an interesting component dealing specifically with an act that may be covered under an insurance policy which would defend against “any wrongful act” but which included an exclusion that did not include any act that was “criminal or malicious.” Accordingly, the case was unique inasmuch as it posed the question as to whether or not there was a duty to defend a “wrongful act” (which would be covered under the duty to defend) even if the wrongful act was “criminal or malicious” (which would not be covered under the duty to defend or the policy). The Third District Court of Appeals answered that question in the affirmative in the case of Ohio Government Risk Management Plan v. Harrison 161 Ohio St.3d 726 (2005). The Court reviewed the prevailing case law as it pertains to the duty to defend and stated in paragraphs 5 and 6 of its opinion, the following:
“The Supreme Court noted that the policy in Preferred did not contain language promising to defend the insured against groundless, false or fraudulent claims, which permitted the denial of coverage based upon the facts in that case. Thus, unless the claims alleged in the complaint are indisputably outside of coverage, the plan would have a duty to defend, regardless or whether it must indemnify the insured.
In this case, the policy was issued to the city of Wapakoneta, which was the named insured. The policy provided coverage for any executive officers while acting within the scope of their duties.”
The court concluded in paragraph 10 of its opinion, the following:
“Additionally, the policy specifies that it will defend suits for misfeasance, malfeasance, nonfeasance, civil rights violations, and discrimination. Those are the claims made by Kohler. The fact that some of the actions taken by Harrison were criminal, which would preclude coverage, is not alone sufficient to deny the duty to defend. While some of the actions were criminal, not all of the acts alleged were. Nor is it clear that those acts were done maliciously.”
The case presents an interesting dichotomy between the concept of an act being criminal, but some other component of the act being wrongful and thus still within the applicable duty to defend.
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.
Duty of Care – Recreational Activities – Application of
Marchetti v. Kalish (1990) 53 Ohio St.3d 95
Thompson v. Park River Corporation, 161 Ohio App.3d 502 (2005):
In Thompson v. Park River Corporation, the First District Court of Appeals had an opportunity to review and apply the controlling decision in the context of recreational activities – Marchetti v. Kalish. Marchetti v. Kalish was argued, at the Supreme Court level, by G. Michael Curtin of Curtin & Associates, LLP.
The Thompson court dealt with the situation wherein an individual had been injured at a swimming pool. The court stated at paragraphs 14-18 of its opinion, the following:
“The general rule is that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for an injury unless it can be shown that the other party’s actions were either reckless or intentional. Marchetti (citations omitted). The rule is the same for children and adults. (citations omitted) The rule applies whenever the parties involved are ‘engaging in some type of recreational or sports activity’ regardless of whether it is ‘organized, unorganized, supervised, or unsupervised.’
...
the court in Marchetti, and later in Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 116, made clear that it wanted to avoid an analysis that attempted to ‘delve into the minds of children to determine whether they understand the rules of the recreational or sports activity that they are engaging in’ and to focus instead on ‘the conduct or actions of the tortfeasor.’ Marchetti, 53 Ohio St.3d at 99, 559 N.E.2d 699. By requiring that a tortfeasor in a recreational activity be found to have acted either recklessly or intentionally before an injured party can recover damages, the court made clear that the tortfeasor must have actually intended the consequences of his act or have known or should have known that his conduct could cause such consequences, thus making his behavior substantially worse than mere negligence.”
The case is instructive for any individuals dealing with litigation under a home owner’s policy for children or adults participating in a recreational or sports activity.
Uninsured Motorist – Default Judgment –
Uninsured Motorist Carrier Bound by the Judgment
Amir-Tahmasseb v. Reyes 162 Ohio App.3d 44 (2005):
Curtin & Associates, LLP frequently receives inquiries on the issue of whether or not an uninsured motorist carrier is bound by a default judgment rendered against the uninsured motorist. The analysis typically turns with an examination of the policy language and most commonly results in a determination that an uninsured motorist carrier is not bound by a default judgment rendered against an uninsured motorist.
In Amir-Tahmasseb v. Reyes 162 Ohio App.3d 44 (2005), the uninsured motorist carrier issued a policy to its insured which included language that if an agreement could not be reached as to entitlement to damages, the matter “may go to arbitration.” In addition, the policy also included additional language found in insurance contracts to the effect that any judgment against an uninsured motorist would not be binding, absent the written consent of the uninsured motorist carrier. The defense counsel on behalf of the uninsured motorist carrier timely intervened into a lawsuit having been filed by the plaintiff as against the uninsured motorist but, one day prior to the motion for intervention being granted, counsel for the plaintiff filed a default judgment as against the uninsured motorist. Default judgment was granted as it pertains to liability and damages and subsequent to that, the plaintiff sought to enforce the default judgment as against the uninsured motorist.
The court indicated that the arbitration provision was not mandatory and, instead, only indicated that the parties “may go” to arbitration. Additionally, the court noted that the arbitration provision was limited and specifically excluded arbitration of any issues involving coverage and further noted that the policy required a consent prior to any judgment against the uninsured motorist being binding as against the uninsured motorist carrier.
Despite the foregoing clear and unequivocal steps undertaken by the uninsured motorist carrier, the court stated in its opinion in paragraph 39-41, the following:
“Nationwide did expressly object to being bound by any judgment obtained against the uninsured motorist; however, under the circumstances of this case, we believe that the consent clause in the policy was waived and Nationwide’s assertion was inconsequential ...
In this respect, the purpose of a consent clause is prophylactic: to protect the insurer’s interest in resolving a recovery dispute through arbitration. Where an insured does not pursue arbitration or, perhaps more important, where the parties have no right or duty to arbitrate, it would follow that it simultaneously waives its right to deny consent. See id., generally.”
Curtin & Associates, LLP has studied and restudied this opinion and, in all candor, cannot understand how the uninsured motorist carrier: “... simultaneously waived its right to deny consent.” The appellate court’s theoretical underpinnings were explained in paragraphs 42 and 43 of its opinion wherein it stated the following:
“Pursuant to our analysis above, an integrated interpretation of the policy indicates that Nationwide’s failure to affirmatively include a mandatory arbitration provision (and use it) nullified its right to deny the binding effect of the default judgment in question via waiver...
Affording the insurer carte blanche to deny the binding effect of a default judgment where it has reserved no right in its policy to arbitrate gives the insurer the power to object, without justification, to the binding effect of a valid judgment whenever it feels like it... Such unchecked authority could be used arbitrarily and would put a powerful tool in the hands of a party whose bargaining power and resources are almost invariably greater than that of the insured.”
As previously noted, the case was decided in the Eleventh District Court of Appeals and was a unanimous decision. The opinion does not indicate that any appeal was taken to the Ohio Supreme Court.
Duty to Defend – Criminal Acts
Ohio Govt. Risk Mgt. Plan v. Harrison, 161 Ohio St.3d 726 (2005):
The Third District Court of Appeals handed down a decision with an interesting component dealing specifically with an act that may be covered under an insurance policy which would defend against “any wrongful act” but which included an exclusion that did not include any act that was “criminal or malicious.” Accordingly, the case was unique inasmuch as it posed the question as to whether or not there was a duty to defend a “wrongful act” (which would be covered under the duty to defend) even if the wrongful act was “criminal or malicious” (which would not be covered under the duty to defend or the policy). The Third District Court of Appeals answered that question in the affirmative in the case of Ohio Government Risk Management Plan v. Harrison 161 Ohio St.3d 726 (2005). The Court reviewed the prevailing case law as it pertains to the duty to defend and stated in paragraphs 5 and 6 of its opinion, the following:
“The Supreme Court noted that the policy in Preferred did not contain language promising to defend the insured against groundless, false or fraudulent claims, which permitted the denial of coverage based upon the facts in that case. Thus, unless the claims alleged in the complaint are indisputably outside of coverage, the plan would have a duty to defend, regardless or whether it must indemnify the insured.
In this case, the policy was issued to the city of Wapakoneta, which was the named insured. The policy provided coverage for any executive officers while acting within the scope of their duties.”
The court concluded in paragraph 10 of its opinion, the following:
“Additionally, the policy specifies that it will defend suits for misfeasance, malfeasance, nonfeasance, civil rights violations, and discrimination. Those are the claims made by Kohler. The fact that some of the actions taken by Harrison were criminal, which would preclude coverage, is not alone sufficient to deny the duty to defend. While some of the actions were criminal, not all of the acts alleged were. Nor is it clear that those acts were done maliciously.”
The case presents an interesting dichotomy between the concept of an act being criminal, but some other component of the act being wrongful and thus still within the applicable duty to defend.
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.