Curtin & Associates, LLP

Ownership of Motor Vehicles –
Ohio Certificate of Motor Vehicle Title Act v. Uniform Commercial Code

Allan Nott Ents., Inc. v. Nicholas Starr Auto, L.L.C. (2006) 110 Ohio St.3d 112:

Curtin & Associates, LLP oftentimes is presented with legal issues involving whether or not a thief can pass good title to a good faith purchaser. This particular area of the law involves application of the Ohio Certificate of Motor Vehicle Title Act codified in R.C. 4505 as well as the Uniform Commercial Code codified in R.C. 1302.44. The analysis as to entitlement to convey valid title often turned on the issue of whether or not the purchaser had knowledge or reason to suspect that the thief did not have valid title. This presented a conflict inasmuch as the analysis pursuant to the Certificate of Title Act was different than the analysis under the Uniform Commercial Code. The Ohio Supreme Court recently answered this dispute by finding that the Ohio Certificate of Title Act was dispositive and stated in paragraphs 1, 2 and 3 of its syllabus, the finding:

“1. Under the provisions of the Ohio Certificate of Motor Vehicle Title Act, absent any question of estoppel arising from an act of the owner, a thief cannot convey valid title to a stolen motor vehicle to a bona fide purchaser for value without notice, although the certificate used in the purported transfer appears valid on its face. (citation omitted).

2. For purposes of the Ohio Certificate of Motor Vehicle Title Act, "stolen motor vehicle" includes motor vehicles that are stolen by fraud or deception. (citation omitted).

3. When an individual acquires a motor vehicle using a counterfeit check and sells the vehicle to a purchaser, R.C. 4505.04 determines who possesses valid title to the motor vehicle.”

Ohio Rules of Professional Conduct

The Ohio Supreme Court has made sweeping changes to the Ohio Rules of Professional Conduct. Effective February 1, 2007, the new set of rules go into effect. As it relates to the insurance industry, the following materials are reproduced including the requirement for insurance defense counsel to deliver a “Statement of Insured Client’s Rights” within ten days after the lawyer is retained or by the first client meeting. It is anticipated that the ten day window would occur prior to the first meeting with the client and, therefore, Curtin & Associates, LLP will disseminate this letter within ten days of a referral to our law firm with regard to the insured. In that context, the rule mandating the production of the letter is reproduced herein followed by a sample letter approved by the Ohio Supreme Court:

“(4) if the lawyer is compensated by an insurer to represent an insured, the lawyer delivers a copy of the following Statement of Insured Client's Rights to the client in person at the first meeting or by mail within ten days after the lawyer receives notice of retention by the insurer:

An insurance company has retained a lawyer to defend a lawsuit or claim against you. This Statement of Insured Client's Rights is being given to you to assure that you are aware of your rights regarding your legal representation.

1. Your Lawyer: Your lawyer has been retained by the insurance company under the terms of your policy. If you have questions about the selection of the lawyer, you should discuss the matter with the insurance company or the lawyer.

2. Directing the Lawyer: Your policy may provide that the insurance company can reasonably control the defense of the lawsuit. In addition, your insurance company may establish guidelines governing how lawyers are to proceed in defending you—guidelines that you are entitled to know. However, the lawyer cannot act on the insurance company's instructions when they are contrary to your interest.

3. Communications: Your lawyer should keep you informed about your case and respond to your reasonable requests for information.

4. Confidentiality: Lawyers have a duty to keep secret the confidential information a client provides, subject to limited exceptions. However, the lawyer chosen to represent you also may have duty to share with the insurance company information relating to the defense or settlement of the claim. Whenever a waiver of lawyer-client confidentiality is needed, your lawyer has a duty to consult with you and obtain your informed consent.

5. Release of Information for Audits: Some insurance companies retain auditing companies to review the billing and files of the lawyers they hire to represent policyholders. If the lawyer believes an audit, bill review, or other action initiated by the insurance company may release confidential information in a manner that may be contrary to your interest, the lawyer must advise you regarding the matter and provide an explanation of the purpose of the audit and the procedure involved. Your written consent must be given in order for an audit to be conducted. If you withhold your consent, the audit shall not be conducted.

6. Conflicts of Interest: The lawyer is responsible for identifying conflicts of interest and advising you of them. If at any time you have a concern about a conflict of interest in your case, you should discuss your concern with the lawyer. If a conflict of interest exists that cannot be resolved, the insurance company may be required to provide you with another lawyer.

7. Settlement: Many insurance policies state that the insurance company alone may make a decision regarding settlement of a claim. Some policies, however, require your consent. You should discuss with your lawyer your rights under the policy regarding settlement. No settlement requiring you to pay money in excess of your policy limits can be reached without your agreement.

8. Fees and Costs: As provided in your insurance policy, the insurance company usually pays all of the fees and costs of defending the claim. If you are responsible for paying the lawyer any fees and costs, your lawyer must promptly inform you of that.

9. Hiring your own Lawyer: The lawyer hired by the insurance company is only representing you in defending the claim brought against you. If you desire to pursue a claim against someone, you will need to hire your own lawyer. You may also wish to hire your own lawyer if there is a risk that there might be a judgment entered against you for more than the amount of your insurance. Your lawyer has a duty to inform you of this risk and other reasonably foreseeable adverse results.”