Operation of a Motor Vehicle – Sudden Emergency
Dunlap v. W.L. Logan Trucking, (2005) 161 Ohio App.3d 51
In Dunlap, the court dealt with the situation wherein defendant Munnal was driving a tractor-trailer, left his lane of travel and drove into oncoming traffic, striking the plaintiff’s vehicle. At trial, defendant Munnal argued, through medical testimony, that he suffered from sleep apnea, a condition diagnosed after the accident, and that therefore he could avail himself of the defense of sudden emergency. However, testimony was also presented by defendant Munnal’s fiancée that he typically slept poorly and oftentimes was very lethargic during the day. On that basis, the plaintiffs argued that it was foreseeable that Mr. Munnal could fall asleep while operating the vehicle.
The Tenth District Court of Appeals concluded the following:
“To qualify for the sudden-medical-emergency defense, which holds that a driver suddenly stricken by an unanticipated period of unconsciousness is not chargeable with negligence for losing control of his vehicle, the driver must prove by a preponderance of the evidence that he had no reason to anticipate or foresee the sudden loss of consciousness.”
The court further noted in paragraph 44 of its opinion, the following:
“The Ohio Supreme Court has recognized a sudden-medical-emergency defense, which holds that a driver suddenly stricken by an unanticipated period of unconsciousness is not chargeable with negligence for losing control of his vehicle. Roman v. Estate of Gobbo, 99 Ohio St.3d 260, 2003-Ohio-3655.”
This defense includes two components: The defendant must prove that the infirmity that prevents him/her from operating the motor vehicle was unforeseeable and, second, the defendant carries the burden of proof to establish the foregoing assertion.
Medical Lien - Attorney'y Liability
Dickey v. Burick, (2005) 161 Ohio App. 3d 224:
Dickey involved a situation wherein Debra Burch had been treated by Larry A. Dickey, a licensed massage therapist and Paul Dubos, a licensed chiropractor. During the pendency of the litigation, Debra Burch signed a “doctors lien” which included traditional language relating to Burch’s promise to repay to the doctor the outstanding medical bills from the settlement. However, this particular document also required Debra Burch’s attorney to sign the following statement:
“The undersigned attorney(s) of record for the above patient does hereby agree to observe all the terms and conditions of the above lien and agree(s) to withhold such sums from any settlement, judgment or verdict as may be necessary to protect the said doctor named above.”
The attorney on behalf of Debra Burch did sign this document. One of the assignment of errors dealt with the fact that the attorney for the plaintiff claimed she was improperly named (as a defendant) individually because she was acting as an agent on behalf of her legal corporation at the time she signed the doctor’s liens.
In rejecting this argument, the Fifth District Court of Appeals found that the attorney was individually liable based upon the manner in which she had signed the lien. It should be noted that the attorney had signed her name individually with no designation of agency following her signature.
In concluding that the attorney could be individually liable, the Fifth District Court of Appeals stated the following in paragraph 20 of its opinion:
“In George Ballas Leasing, Inc. v. State Security Serv., Inc., (citation omitted), the Court of Appeals found that a signature represents a clear indication that the signer is acting as an agent if the name of the principal is disclosed, the signature is preceded by words of agency such as “by” “per” or “on behalf of,” and the signature is followed by a title showing the capacity in which the signer is executing the document. The signature on the doctor’s liens do not contain any of these indicia.”
Curtin & Associates, LLP is dealing with more and more cases wherein doctors are pursuing individual plaintiffs, liability insurance carriers and now plaintiffs’ attorneys for recoupment of their fees. The case is instructive so as to remind all individuals that if they are signing documents, it is essential that the document be signed in his/her legal capacity as well as to reflect that the issue of enforceability of medical liens has and will become a significant area of ongoing litigation.
Duty to Defend
WAS, Inc. v. Alea London, Ltd. (2005) 161 Ohio App.3d 111:
In WAS, Inc., a fight ensued at a bar and after a lawsuit was filed, questions arose as to the applicability of the bar’s liability insurance. The policy was unique inasmuch as it included the following provisions which appeared in paragraph 6 of the court’s opinion:
“The policy also contains a provision titled ‘Expected or Intended Injury’ which states that ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured is excluded from coverage but that ‘this exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.’ The employees who were also named defendants in this case, have filed affidavits claiming that they were acting to protect the wife of the patron who claims to have suffered injuries. A claim that, if proven, could allow coverage under the aforementioned policy provisions.”
In reversing summary judgment in favor of the liability insurance carrier, the Second District Court of Appeals stated the following:
“First, the trial court construed the policy provisions against the insured, whereas we now know from Westfield Ins. Co. v. Galatis (citation omitted) that policy provisions are to be construed in favor of the insured, who in this case is WAS, Inc. Second, as this court has noted, ‘a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof.’ (citation omitted) Finally, we note that insurance-policy provisions should be construed, if possible, to be in harmony, and here it is at least arguable that the injuries are covered under the contract if the insured can prove that the injuries resulted from its employees’ reasonable-force effort to protect persons, protection that, by law, is not an assault or battery.”
The policy was certainly unique in its language as is the decision which embraced a “in harmony” standard with regard to the construction to be applied to an insurance contract.
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
Operation of a Motor Vehicle – Sudden Emergency
Dunlap v. W.L. Logan Trucking, (2005) 161 Ohio App.3d 51
In Dunlap, the court dealt with the situation wherein defendant Munnal was driving a tractor-trailer, left his lane of travel and drove into oncoming traffic, striking the plaintiff’s vehicle. At trial, defendant Munnal argued, through medical testimony, that he suffered from sleep apnea, a condition diagnosed after the accident, and that therefore he could avail himself of the defense of sudden emergency. However, testimony was also presented by defendant Munnal’s fiancée that he typically slept poorly and oftentimes was very lethargic during the day. On that basis, the plaintiffs argued that it was foreseeable that Mr. Munnal could fall asleep while operating the vehicle.
The Tenth District Court of Appeals concluded the following:
“To qualify for the sudden-medical-emergency defense, which holds that a driver suddenly stricken by an unanticipated period of unconsciousness is not chargeable with negligence for losing control of his vehicle, the driver must prove by a preponderance of the evidence that he had no reason to anticipate or foresee the sudden loss of consciousness.”
The court further noted in paragraph 44 of its opinion, the following:
“The Ohio Supreme Court has recognized a sudden-medical-emergency defense, which holds that a driver suddenly stricken by an unanticipated period of unconsciousness is not chargeable with negligence for losing control of his vehicle. Roman v. Estate of Gobbo, 99 Ohio St.3d 260, 2003-Ohio-3655.”
This defense includes two components: The defendant must prove that the infirmity that prevents him/her from operating the motor vehicle was unforeseeable and, second, the defendant carries the burden of proof to establish the foregoing assertion.
Medical Lien - Attorney'y Liability
Dickey v. Burick, (2005) 161 Ohio App. 3d 224:
Dickey involved a situation wherein Debra Burch had been treated by Larry A. Dickey, a licensed massage therapist and Paul Dubos, a licensed chiropractor. During the pendency of the litigation, Debra Burch signed a “doctors lien” which included traditional language relating to Burch’s promise to repay to the doctor the outstanding medical bills from the settlement. However, this particular document also required Debra Burch’s attorney to sign the following statement:
“The undersigned attorney(s) of record for the above patient does hereby agree to observe all the terms and conditions of the above lien and agree(s) to withhold such sums from any settlement, judgment or verdict as may be necessary to protect the said doctor named above.”
The attorney on behalf of Debra Burch did sign this document. One of the assignment of errors dealt with the fact that the attorney for the plaintiff claimed she was improperly named (as a defendant) individually because she was acting as an agent on behalf of her legal corporation at the time she signed the doctor’s liens.
In rejecting this argument, the Fifth District Court of Appeals found that the attorney was individually liable based upon the manner in which she had signed the lien. It should be noted that the attorney had signed her name individually with no designation of agency following her signature.
In concluding that the attorney could be individually liable, the Fifth District Court of Appeals stated the following in paragraph 20 of its opinion:
“In George Ballas Leasing, Inc. v. State Security Serv., Inc., (citation omitted), the Court of Appeals found that a signature represents a clear indication that the signer is acting as an agent if the name of the principal is disclosed, the signature is preceded by words of agency such as “by” “per” or “on behalf of,” and the signature is followed by a title showing the capacity in which the signer is executing the document. The signature on the doctor’s liens do not contain any of these indicia.”
Curtin & Associates, LLP is dealing with more and more cases wherein doctors are pursuing individual plaintiffs, liability insurance carriers and now plaintiffs’ attorneys for recoupment of their fees. The case is instructive so as to remind all individuals that if they are signing documents, it is essential that the document be signed in his/her legal capacity as well as to reflect that the issue of enforceability of medical liens has and will become a significant area of ongoing litigation.
Duty to Defend
WAS, Inc. v. Alea London, Ltd. (2005) 161 Ohio App.3d 111:
In WAS, Inc., a fight ensued at a bar and after a lawsuit was filed, questions arose as to the applicability of the bar’s liability insurance. The policy was unique inasmuch as it included the following provisions which appeared in paragraph 6 of the court’s opinion:
“The policy also contains a provision titled ‘Expected or Intended Injury’ which states that ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured is excluded from coverage but that ‘this exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.’ The employees who were also named defendants in this case, have filed affidavits claiming that they were acting to protect the wife of the patron who claims to have suffered injuries. A claim that, if proven, could allow coverage under the aforementioned policy provisions.”
In reversing summary judgment in favor of the liability insurance carrier, the Second District Court of Appeals stated the following:
“First, the trial court construed the policy provisions against the insured, whereas we now know from Westfield Ins. Co. v. Galatis (citation omitted) that policy provisions are to be construed in favor of the insured, who in this case is WAS, Inc. Second, as this court has noted, ‘a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof.’ (citation omitted) Finally, we note that insurance-policy provisions should be construed, if possible, to be in harmony, and here it is at least arguable that the injuries are covered under the contract if the insured can prove that the injuries resulted from its employees’ reasonable-force effort to protect persons, protection that, by law, is not an assault or battery.”
The policy was certainly unique in its language as is the decision which embraced a “in harmony” standard with regard to the construction to be applied to an insurance contract.
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