Uninsured Motorist Provision –
Arising Out of the Use of an Uninsured Motor Vehicle
Estate of Nord v. Motorists Mut. Ins., (2005) 105 Ohio St.3d 366:
The Ohio Supreme Court had an opportunity to revisit the landmark decision of Kish v. Cent. Natl. Ins. Group of Omaha (1981), 67 Ohio St.2d. 41 wherein it reviewed the propriety of the trial court’s decision that summary judgment was appropriate for the uninsured motorist carrier because the accident was not arising out of the use of an uninsured motor vehicle. In Estate of Nord v. Motorists Mut. Ins., a Cleveland EMS driver negligently dropped a syringe into the eye of Paul Nord. Mr. Nord subsequently died from reasons unrelated to the incident involving the syringe. A lawsuit was filed for the injuries from the syringe. The City of Cleveland had statutory immunity and, pursuant to O.R.C. 3937.18, the ambulance was considered an uninsured motor vehicle. Accordingly, the central inquiry became whether or not the negligence of the EMS technician arose out of the ownership, maintenance or use of an uninsured motor vehicle.
The Ohio Supreme Court began its analysis by revisiting the landmark case of Kish, supra and stated in paragraph 12 of its opinion the following:
“Where an automobile policy limits uninsured-motorist coverage to damages from accident that ‘arise out of the ownership, maintenance or use of the uninsured motor vehicle,’ coverage applies only when an uninsured motor vehicle caused the accident. Kish v. Cent. Natl. Ins. Group of Omaha (1981), 67 Ohio St.2d 41. In Kish, the decedent exited his vehicle after it had been struck. The decedent was then shot and killed by the other driver, an uninsured motorist. Rejecting but-for analysis, we concluded that uninsured-motorist coverage did not apply because the automobile accident did not cause the bodily injury. Though the accident began an altercation that led to a murder, the criminal act was an intervening cause unrelated to the use or operation of the uninsured vehicle.”
The Court applied similar logic pertaining to Paul Nord and, in upholding the trial court’s granting of summary judgment in favor of the uninsured motorist carrier, stated in paragraphs 13 and 14 of its opinion, the following:
“Thus, we conclude that an uninsured-motorist provision, which limits coverage to damages that ‘arise out of the ownership, maintenance or use of the uninsured motor vehicle,’ does not cover damages caused by an event unrelated to the ownership, maintenance, or use of an uninsured motor vehicle.
In the instant case, the carelessness of the paramedic caused Nord’s injury. The paramedic’s use and dropping of the syringe were unrelated to the ownership, maintenance, or use of the motor vehicle.”
No claim was made by the plaintiffs that the ambulance was being operated in a negligent manner or that the movement of the ambulance had caused the syringe to drop.
Assignment of Fee - Enforceability of Agreement
Roselawn Chiropractic Ctr, Inc. v. Allstatestate (2005) 160 Ohio App. 3d 297:
The First District Court of Appeals dealt with a situation that is becoming more and more common specifically dealing with chiropractic facilities seeking to directly enforce a patient’s assignment of right with respect to the payment of medical bills. Tiffany A. Tate was injured as a result of the negligence of an Allstate insured. Tiffany A. Tate treated at Roselawn Chiropractic Center and, in so doing, signed a document referred to as an “Assignment” which indicated that Tate was assigning to the chiropractic facility any proceeds she would recover from a claim against Allstate and the Allstate insured.
Roselawn Chiropractic Center advised Allstate Insurance Company of the assignment and Allstate received those documents. However, Allstate paid all of the settlement monies directly to Tiffany A. Tate and paid no monies to Roselawn Chiropractic Center.
Roselawn Chiropractic Center thereafter sued Tate and Allstate Insurance Company. It can be assumed that Tiffany Tate did not pay the chiropractic facility predicated upon the initiation of the lawsuit against her and Allstate Insurance Company.
Judge Painter, writing for the First District Court of Appeals upheld the assignment and stated in paragraphs 19-21 of its opinion the following:
“As Roselawn argued, assignments such as the one made by Tate are common. Injured parties who incur medical costs related to an injury for which another party may be liable often assign the right to potential proceeds to a treating physician. Many times an assignment is the only way the doctor can secure payment. And assignments are often signed prior to the making of a formal claim. We see no reason to force a person to file a lawsuit before he or she can assign the right to potential proceeds from a claim.
Allowing the creation of a valid assignment in such a situation gives some assurance to medical-care providers that they will eventually be compensated. This fits with one of the purposes of assignments – to encourage the assignee to trust that an assignor who may not have cash in hand will be able to cover his or her debts.
We conclude that the trial court did not err when it determined that Tate had executed a valid assignment. Allstate had sufficient notice of the assignment and was obligated to pay Roselawn the amount Tate owed for her medical treatment.”
The opinion is silent as to a key issue to-wit: How does a party against whom an assignment has been filed, challenge the propriety of the amount of medical care and treatment? This is an issue that will need to be litigated in the future and is not answered in any of the cases that have upheld the enforceability of an assignment.
Course and Scope of Employment - Negligent Retention
DiPietro v. Lighthouse Ministries, (2005) 159 Ohio App.3d 766:
The Tenth District Court of Appeals handed down a decision which embraces two common areas of litigation, specifically the topic of course and scope of employment as well as negligent retention of an employee. In DiPietro, a female parishioner initiated a lawsuit against the church and a former pastor alleging the church was negligent in hiring and retaining the pastor who had an affair with her. The Tenth District Court of Appeals set forth the legal standards associated with negligent retention and/or course and scope of employment and stated in its syllabus, the following:
“3. An employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business under doctrine of respondeat superior.
4. Intentional sexual activity is not related to a cleric’s duties, nor does it further church interests, and that conduct does not fall within the scope of a cleric’s employment for purposes of establishing the church’s liability for the cleric’s acts under theory of respondeat superior.
...
6. In order to prevail on a claim of negligent retention, plaintiff must establish: (1) existence of an employment relationship, (2) employee’s incompetence, (3) employer’s actual or constructive knowledge of such incompetence, (4) employee’s act or omission causing the plaintiff’s injuries, and (5) employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.”
The appellate court upheld the lower court’s granting of summary judgment in favor of the church.
Firm Updates
At the request of several clients, a summary is provided herein with regard to a case recently tried by Curtin & Associates, LLP in the Lake County Court of Common Pleas. The matter was “Howell v. Farone” and was tried before Judge Lucci of the Lake County Court of Common Pleas. Plaintiff R. J. Shunk had accrued medical bills in the amount of $2,700; plaintiff Jennifer Howell had medicals in the amount of $1,100. Negligence was stipulated, but there was little to no impact to the rear portion of the vehicle that was driven by Jennifer Howell in which Mr. Shunk was a passenger.
Counsel for the plaintiffs filed a motion in limine seeking to exclude any and all evidence of the force of the impact. Judge Lucci, on the morning of trial, ordered that the following testimony could not be offered by the defendant: photographs taken of the rear portion of the Howell (plaintiff) vehicle showing no property damage; repair estimate in the amount of $447 pertaining to the Howell (plaintiff) vehicle; expert report completed by Hank Lipian and James Crawford indicating that the photographs were a fair and accurate depiction of the damage to the plaintiffs’ vehicle and opining that the barrier impact to the Howell (plaintiff) vehicle was several miles per hour; testimony from Ms. Farone (defendant) to the effect that she inspected the front portion of her motor vehicle following the rear-end motor vehicle accident and determined that there was no damage to the front portion of her car; testimony from Jennifer Howell (plaintiff) who inspected the front portion of defendant Farone’s motor vehicle and agreed there was no damage to the front portion of the defendant’s motor vehicle; testimony from Jennifer Howell that she inspected the rear portion of her own motor vehicle and only observed a small scuff of the rear portion of her car; testimony from Ms. Farone confirming that there was only a small scuff to the rear portion of the plaintiff’s car; testimony from Officer Croucher and Officer Collins of the Mentor Police Department who prepared a police report which stated the following: “no damage was visible to unit #1 (defendant vehicle) and a small gray scuff was found on unit #2 (plaintiffs’ vehicle) rear bumper. Unit #1 was directly behind unit #2.” Testimony that Ms. Farone was uninjured was also excluded as well as the fact that she had no medical care and treatment, nor did she have any property damage claim submitted for this accident. The only information the court would allow to be admitted into evidence was the defendant’s speed which was estimated to be between 3-5 mph.
The case was tried for two days and the jury returned unanimous defense verdicts in favor of defendant Farone and against both plaintiffs.
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.
Uninsured Motorist Provision –
Arising Out of the Use of an Uninsured Motor Vehicle
Estate of Nord v. Motorists Mut. Ins., (2005) 105 Ohio St.3d 366:
The Ohio Supreme Court had an opportunity to revisit the landmark decision of Kish v. Cent. Natl. Ins. Group of Omaha (1981), 67 Ohio St.2d. 41 wherein it reviewed the propriety of the trial court’s decision that summary judgment was appropriate for the uninsured motorist carrier because the accident was not arising out of the use of an uninsured motor vehicle. In Estate of Nord v. Motorists Mut. Ins., a Cleveland EMS driver negligently dropped a syringe into the eye of Paul Nord. Mr. Nord subsequently died from reasons unrelated to the incident involving the syringe. A lawsuit was filed for the injuries from the syringe. The City of Cleveland had statutory immunity and, pursuant to O.R.C. 3937.18, the ambulance was considered an uninsured motor vehicle. Accordingly, the central inquiry became whether or not the negligence of the EMS technician arose out of the ownership, maintenance or use of an uninsured motor vehicle.
The Ohio Supreme Court began its analysis by revisiting the landmark case of Kish, supra and stated in paragraph 12 of its opinion the following:
“Where an automobile policy limits uninsured-motorist coverage to damages from accident that ‘arise out of the ownership, maintenance or use of the uninsured motor vehicle,’ coverage applies only when an uninsured motor vehicle caused the accident. Kish v. Cent. Natl. Ins. Group of Omaha (1981), 67 Ohio St.2d 41. In Kish, the decedent exited his vehicle after it had been struck. The decedent was then shot and killed by the other driver, an uninsured motorist. Rejecting but-for analysis, we concluded that uninsured-motorist coverage did not apply because the automobile accident did not cause the bodily injury. Though the accident began an altercation that led to a murder, the criminal act was an intervening cause unrelated to the use or operation of the uninsured vehicle.”
The Court applied similar logic pertaining to Paul Nord and, in upholding the trial court’s granting of summary judgment in favor of the uninsured motorist carrier, stated in paragraphs 13 and 14 of its opinion, the following:
“Thus, we conclude that an uninsured-motorist provision, which limits coverage to damages that ‘arise out of the ownership, maintenance or use of the uninsured motor vehicle,’ does not cover damages caused by an event unrelated to the ownership, maintenance, or use of an uninsured motor vehicle.
In the instant case, the carelessness of the paramedic caused Nord’s injury. The paramedic’s use and dropping of the syringe were unrelated to the ownership, maintenance, or use of the motor vehicle.”
No claim was made by the plaintiffs that the ambulance was being operated in a negligent manner or that the movement of the ambulance had caused the syringe to drop.
Assignment of Fee - Enforceability of Agreement
Roselawn Chiropractic Ctr, Inc. v. Allstatestate (2005) 160 Ohio App. 3d 297:
The First District Court of Appeals dealt with a situation that is becoming more and more common specifically dealing with chiropractic facilities seeking to directly enforce a patient’s assignment of right with respect to the payment of medical bills. Tiffany A. Tate was injured as a result of the negligence of an Allstate insured. Tiffany A. Tate treated at Roselawn Chiropractic Center and, in so doing, signed a document referred to as an “Assignment” which indicated that Tate was assigning to the chiropractic facility any proceeds she would recover from a claim against Allstate and the Allstate insured.
Roselawn Chiropractic Center advised Allstate Insurance Company of the assignment and Allstate received those documents. However, Allstate paid all of the settlement monies directly to Tiffany A. Tate and paid no monies to Roselawn Chiropractic Center.
Roselawn Chiropractic Center thereafter sued Tate and Allstate Insurance Company. It can be assumed that Tiffany Tate did not pay the chiropractic facility predicated upon the initiation of the lawsuit against her and Allstate Insurance Company.
Judge Painter, writing for the First District Court of Appeals upheld the assignment and stated in paragraphs 19-21 of its opinion the following:
“As Roselawn argued, assignments such as the one made by Tate are common. Injured parties who incur medical costs related to an injury for which another party may be liable often assign the right to potential proceeds to a treating physician. Many times an assignment is the only way the doctor can secure payment. And assignments are often signed prior to the making of a formal claim. We see no reason to force a person to file a lawsuit before he or she can assign the right to potential proceeds from a claim.
Allowing the creation of a valid assignment in such a situation gives some assurance to medical-care providers that they will eventually be compensated. This fits with one of the purposes of assignments – to encourage the assignee to trust that an assignor who may not have cash in hand will be able to cover his or her debts.
We conclude that the trial court did not err when it determined that Tate had executed a valid assignment. Allstate had sufficient notice of the assignment and was obligated to pay Roselawn the amount Tate owed for her medical treatment.”
The opinion is silent as to a key issue to-wit: How does a party against whom an assignment has been filed, challenge the propriety of the amount of medical care and treatment? This is an issue that will need to be litigated in the future and is not answered in any of the cases that have upheld the enforceability of an assignment.
Course and Scope of Employment - Negligent Retention
DiPietro v. Lighthouse Ministries, (2005) 159 Ohio App.3d 766:
The Tenth District Court of Appeals handed down a decision which embraces two common areas of litigation, specifically the topic of course and scope of employment as well as negligent retention of an employee. In DiPietro, a female parishioner initiated a lawsuit against the church and a former pastor alleging the church was negligent in hiring and retaining the pastor who had an affair with her. The Tenth District Court of Appeals set forth the legal standards associated with negligent retention and/or course and scope of employment and stated in its syllabus, the following:
“3. An employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business under doctrine of respondeat superior.
4. Intentional sexual activity is not related to a cleric’s duties, nor does it further church interests, and that conduct does not fall within the scope of a cleric’s employment for purposes of establishing the church’s liability for the cleric’s acts under theory of respondeat superior.
...
6. In order to prevail on a claim of negligent retention, plaintiff must establish: (1) existence of an employment relationship, (2) employee’s incompetence, (3) employer’s actual or constructive knowledge of such incompetence, (4) employee’s act or omission causing the plaintiff’s injuries, and (5) employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.”
The appellate court upheld the lower court’s granting of summary judgment in favor of the church.
Firm Updates
At the request of several clients, a summary is provided herein with regard to a case recently tried by Curtin & Associates, LLP in the Lake County Court of Common Pleas. The matter was “Howell v. Farone” and was tried before Judge Lucci of the Lake County Court of Common Pleas. Plaintiff R. J. Shunk had accrued medical bills in the amount of $2,700; plaintiff Jennifer Howell had medicals in the amount of $1,100. Negligence was stipulated, but there was little to no impact to the rear portion of the vehicle that was driven by Jennifer Howell in which Mr. Shunk was a passenger.
Counsel for the plaintiffs filed a motion in limine seeking to exclude any and all evidence of the force of the impact. Judge Lucci, on the morning of trial, ordered that the following testimony could not be offered by the defendant: photographs taken of the rear portion of the Howell (plaintiff) vehicle showing no property damage; repair estimate in the amount of $447 pertaining to the Howell (plaintiff) vehicle; expert report completed by Hank Lipian and James Crawford indicating that the photographs were a fair and accurate depiction of the damage to the plaintiffs’ vehicle and opining that the barrier impact to the Howell (plaintiff) vehicle was several miles per hour; testimony from Ms. Farone (defendant) to the effect that she inspected the front portion of her motor vehicle following the rear-end motor vehicle accident and determined that there was no damage to the front portion of her car; testimony from Jennifer Howell (plaintiff) who inspected the front portion of defendant Farone’s motor vehicle and agreed there was no damage to the front portion of the defendant’s motor vehicle; testimony from Jennifer Howell that she inspected the rear portion of her own motor vehicle and only observed a small scuff of the rear portion of her car; testimony from Ms. Farone confirming that there was only a small scuff to the rear portion of the plaintiff’s car; testimony from Officer Croucher and Officer Collins of the Mentor Police Department who prepared a police report which stated the following: “no damage was visible to unit #1 (defendant vehicle) and a small gray scuff was found on unit #2 (plaintiffs’ vehicle) rear bumper. Unit #1 was directly behind unit #2.” Testimony that Ms. Farone was uninjured was also excluded as well as the fact that she had no medical care and treatment, nor did she have any property damage claim submitted for this accident. The only information the court would allow to be admitted into evidence was the defendant’s speed which was estimated to be between 3-5 mph.
The case was tried for two days and the jury returned unanimous defense verdicts in favor of defendant Farone and against both plaintiffs.
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.