Firm Updates
Curtin & Associates, LLP is pleased to announce the creation of a new website which includes a valuable resource for individuals within the insurance defense community. Our Newsletters have been circulated and archived from the past several years and the new website (http://www.curtinlawfirm.com/) includes a search engine of all of the archived Newsletters. By typing in a key word(s), the search engine will retrieve all applicable archived Newsletters. To the best of our knowledge, Curtin & Associates, LLP is the only law firm that has this particular functionality on their website and we believe it is another example of the innovation and dedication we bring to the representation of our clients. Finally, the new website allows you to view our office.
Uninsured/Underinsured Motorist Coverage –
Amendment Of Policy During Two Year Statutory Guaranteed Period
Shay v. Shay, (2007) 113 Ohio St.3d 172
The Ohio Supreme Court had an opportunity to revisit and discuss its decision in Wolfe v. Wolfe (2000), 88 Ohio St.3d 246. The Court ordered briefing as it pertains to the following topic which appeared in paragraph 21 of the opinion:
“Does the Ohio Supreme Court’s decision in Wolfe v. Wolfe (2000) 88 Ohio St.3d 246 and R.C. 3937.31(A), prevent an insurance company from amending the terms of its policy language, at the time of renewal, to increase the amount of [UM/UIM] coverage it provides, prior to the expiration of the two-year guarantee period discussed in R.C. 3937.31(A)?”
There was a second question that the Court also requested be addressed in briefs, but the Court determined that the second certified question was moot and, therefore, said question is not reproduced in this analysis. The Court began its decision by discussing the purpose underlying Wolfe as well as the interaction with the General Assembly. In paragraph 23 of its opinion, the Court stated the following:
“In Wolfe, we acknowledged the General Assembly’s laudatory objectives in ensuring that all motorists maintain some form of liability coverage on their motor vehicles, and we held that ‘pursuant to R.C. 3937.31(A), every automobile liability insurance policy issued in this state must have, at a minimum, a guaranteed two-year policy period during which the policy cannot be altered except by agreement of the parties and in accordance with R.C. 3937.30 to 3937.39.’ (citations omitted). We further held that the commencement of each policy period brought a new contract of insurance into existence, whether the policy was categorized as a new policy or a renewal of an existing policy. In light of that construction of R.C. 3937.31(A), we held that enactments by the General Assembly that became effective after the commencement of a two-year policy period could not be incorporated into the insurance contract until after that two-year period had expired and a new one had begun.”
As it pertains to the certified question that the Court had before it, it answered this question in paragraph 31 of its opinion as follows:
“We thus hold that absent an agreement between the insurer and the insured to amend the policy terms at the six-month renewal point, R.C. 3937.31(A) and our decision in Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, prevent an insurance company from amending the terms of its policy to increase the amount of coverage it provides, at the six-month point of renewal.”
Wrongful Death Claim – Motion For Summary Judgment Granted
Rogers v. Holland Oil Company, Summit County Court of Common Pleas
Case No. CV 2005-12-7831
Curtin & Associates, LLP represented Holland Oil Company/Citgo Gas Station with regard to a wrongful death claim filed against that entity. A co-defendant, Mr. Alexander’s vehicle was broken into and the purported burglar had left behind an item which was discovered by Mr. Alexander indicating that the item may have been purchased at the Holland Oil Company station. Defendant Alexander went to the station and requested and was shown Citgo videotape surveillance footage which identified the alleged thief purchasing the item discovered at the crime scene.
Defendant Alexander subsequently murdered Mr. Rogers whose estate thereafter sued Mr. Alexander as well as Holland Oil.
In upholding the granting of summary judgment in favor of Holland Oil, the Summit County Court of Common Pleas held, on page 5 of its opinion, the following:
“However, the injury (death of) K. Rogers did not occur on Citgo property and no unsafe or dangerous conditions on Citgo property were evinced in this matter. Any duty Citgo may have owed K. Rogers, by virtue of being a business, which invited K. Rogers and others onto their property for the purposes of conducting business, ceased when K. Rogers left Citgo property. (citation omitted) Therefore, Plaintiff’s argument based upon premises liability fails as a matter of law.
When no special relationship exists, a duty based on foreseeability of injury may arise when it can be determined that a reasonably prudent person would anticipate that an injury would likely result from their acts or omissions (citation omitted). An injury is foreseeable if it is the natural and probable consequences of the act or omission and in light of all attending circumstances (citations omitted). And, absent a special relationship between the parties (or certain attendant circumstances not at issue in this case), there is no duty to prevent a third person from causing harm to another.”
It should be noted that testimony from the Citgo employee was to the effect that showing the videotape was in contravention of company policy but the Court found the following analogy to be applicable on page 7 of its opinion wherein the Court stated the following:
“Citgo properly analogizes its position with that of an innocent bystander who responds to the question, ‘Did anyone see who broke into my car?’ The witness who responds with a description of the thief cannot be responsible for the actions of the inquiring crime-victim in following-up on that description.”
Subrogation – Enforcement of Lien – Plaintiff’s Attorney Held To Be A Fiduciary Of Monies Tendered By A Liability Insurance Carrier
Qualchoice, Inc. v. Paige-Thompson, Court of Appeals, Eighth Appellate District
Case No. CA 06 88233
Curtin & Associates, LLP was involved in a significant case decided by the Eighth District Court of Appeals which could have a significant impact in the arena of liability with respect to subrogation claims and/or liens. The facts of the case were that counsel for the plaintiff settled a claim with the liability insurance carrier for $25,000. The claims specialist for the insurance carrier wrote a letter in clear and unambiguous terms indicating that the claim was settled contingent upon resolution of a lien asserted by Qualchoice in the amount of $9,000. A follow-up letter was sent, by American Family, confirming that counsel for the plaintiff’s office would resolve the medical lien that had been asserted by Qualchoice. The plaintiffs subsequently signed a release in favor of the American Family insured and the release made no mention of the Qualchoice lien.
Counsel for the plaintiff deposited the amount of the Qualchoice lien into escrow while he attempted to resolve the lien. He directed correspondence to American Family which stated the following on page 3:
“In response to your recent call, please be advised that we are still trying to resolve the alleged subrogation lien of Qualchoice. We are holding Nine Thousand Three Hundred Dollars and Sixty Nine Cents ($9,309.69), the amount of the alleged lien, in Escrow.”
Qualchoice subsequently filed a lawsuit against the American Family insured to enforce its subrogation lien inasmuch as it was never paid the $9,000 by counsel for the plaintiff. The American Family insured filed a claim against the original plaintiff (Brenda Jones) as well as sought leave to add as a party the offices of counsel for the plaintiff arguing that he had breached the terms of the settlement agreement.
The trial court granted the original plaintiff’s (Jones) motion for summary judgment and denied a motion for leave to file a third party complaint against the law firm who had failed to properly protect the subrogation lien. On page 9 of its opinion, the Eighth District Court of Appeals upheld a fiduciary concept extending between American Family and the offices of counsel for the injured plaintiff (Jones). The Court stated the following in its opinion:
“Lastly, we consider the Joneses’ argument that there was no agreement to indemnify Paige-Thomson. Contrary to the Joneses’ contention that Pomerantz did not enter into any agreement to pay Qualchoice’s subrogation claim, the record is clear that he did. In light of the correspondence set forth above, we find no genuine issue of material fact on this issue. The record is clear that Pomerantz agreed with American Family to ‘resolve’ Qualchoice’s subrogation claim. Pomerantz’s letter of December 6, 2004 to Hollern, in which he noted that he was ‘still trying’ to ‘resolve’ the lien and, to that end, was holding the money in escrow, and further, that his client would ‘resolve this lien,’ specifically confirms the agreement. If he had not agreed to ‘resolve’ the lien, either by paying it or by challenging it in a declaratory judgment action, there would have been no need for him to put the money in escrow.
Moreover, although American Family is not a party to this suit, we note that when Pomerantz put $9,309.69 of American Family’s money in escrow, he created a fiduciary relationship with American Family, in addition to his already existing fiduciary relationship with the Joneses.”
On pages 10 and 11 of its opinion, the Court went on to indicate that Mr. Pomerantz would need American Family’s consent prior to making any distributions of the roughly $9,000 worth of funds and stated:
“Although Pomerantz asserts that he properly released the funds to his clients, we find nothing in the record indicating that American Family consented to the disbursement of the funds.
Because Pomerantz agreed with American Family, on behalf of the Joneses, to pay the Qualchoice lien, the trial court erred in granting summary judgment to the Joneses.”
If there is an agreement between a liability insurance carrier and the offices of counsel for the plaintiff, this particular decision clearly stands for the proposition that a fiduciary duty exists between those two entities and counsel for the plaintiff must honor those fiduciary obligations. The Court of Appeals concluded that the lower court erred in denying the motion to join the attorney and his law firm as third party defendants.
By way of update, counsel for the plaintiff has filed a Memorandum in Support of Jurisdiction to the Ohio Supreme Court.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at http://www.curtinlawfirm.com/. For your convenience, we will post these cases on our website in the “Newsletter” link.
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.
Firm Updates
Curtin & Associates, LLP is pleased to announce the creation of a new website which includes a valuable resource for individuals within the insurance defense community. Our Newsletters have been circulated and archived from the past several years and the new website (http://www.curtinlawfirm.com/) includes a search engine of all of the archived Newsletters. By typing in a key word(s), the search engine will retrieve all applicable archived Newsletters. To the best of our knowledge, Curtin & Associates, LLP is the only law firm that has this particular functionality on their website and we believe it is another example of the innovation and dedication we bring to the representation of our clients. Finally, the new website allows you to view our office.
Uninsured/Underinsured Motorist Coverage –
Amendment Of Policy During Two Year Statutory Guaranteed Period
Shay v. Shay, (2007) 113 Ohio St.3d 172
The Ohio Supreme Court had an opportunity to revisit and discuss its decision in Wolfe v. Wolfe (2000), 88 Ohio St.3d 246. The Court ordered briefing as it pertains to the following topic which appeared in paragraph 21 of the opinion:
“Does the Ohio Supreme Court’s decision in Wolfe v. Wolfe (2000) 88 Ohio St.3d 246 and R.C. 3937.31(A), prevent an insurance company from amending the terms of its policy language, at the time of renewal, to increase the amount of [UM/UIM] coverage it provides, prior to the expiration of the two-year guarantee period discussed in R.C. 3937.31(A)?”
There was a second question that the Court also requested be addressed in briefs, but the Court determined that the second certified question was moot and, therefore, said question is not reproduced in this analysis. The Court began its decision by discussing the purpose underlying Wolfe as well as the interaction with the General Assembly. In paragraph 23 of its opinion, the Court stated the following:
“In Wolfe, we acknowledged the General Assembly’s laudatory objectives in ensuring that all motorists maintain some form of liability coverage on their motor vehicles, and we held that ‘pursuant to R.C. 3937.31(A), every automobile liability insurance policy issued in this state must have, at a minimum, a guaranteed two-year policy period during which the policy cannot be altered except by agreement of the parties and in accordance with R.C. 3937.30 to 3937.39.’ (citations omitted). We further held that the commencement of each policy period brought a new contract of insurance into existence, whether the policy was categorized as a new policy or a renewal of an existing policy. In light of that construction of R.C. 3937.31(A), we held that enactments by the General Assembly that became effective after the commencement of a two-year policy period could not be incorporated into the insurance contract until after that two-year period had expired and a new one had begun.”
As it pertains to the certified question that the Court had before it, it answered this question in paragraph 31 of its opinion as follows:
“We thus hold that absent an agreement between the insurer and the insured to amend the policy terms at the six-month renewal point, R.C. 3937.31(A) and our decision in Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, prevent an insurance company from amending the terms of its policy to increase the amount of coverage it provides, at the six-month point of renewal.”
Wrongful Death Claim – Motion For Summary Judgment Granted
Rogers v. Holland Oil Company, Summit County Court of Common Pleas
Case No. CV 2005-12-7831
Curtin & Associates, LLP represented Holland Oil Company/Citgo Gas Station with regard to a wrongful death claim filed against that entity. A co-defendant, Mr. Alexander’s vehicle was broken into and the purported burglar had left behind an item which was discovered by Mr. Alexander indicating that the item may have been purchased at the Holland Oil Company station. Defendant Alexander went to the station and requested and was shown Citgo videotape surveillance footage which identified the alleged thief purchasing the item discovered at the crime scene.
Defendant Alexander subsequently murdered Mr. Rogers whose estate thereafter sued Mr. Alexander as well as Holland Oil.
In upholding the granting of summary judgment in favor of Holland Oil, the Summit County Court of Common Pleas held, on page 5 of its opinion, the following:
“However, the injury (death of) K. Rogers did not occur on Citgo property and no unsafe or dangerous conditions on Citgo property were evinced in this matter. Any duty Citgo may have owed K. Rogers, by virtue of being a business, which invited K. Rogers and others onto their property for the purposes of conducting business, ceased when K. Rogers left Citgo property. (citation omitted) Therefore, Plaintiff’s argument based upon premises liability fails as a matter of law.
When no special relationship exists, a duty based on foreseeability of injury may arise when it can be determined that a reasonably prudent person would anticipate that an injury would likely result from their acts or omissions (citation omitted). An injury is foreseeable if it is the natural and probable consequences of the act or omission and in light of all attending circumstances (citations omitted). And, absent a special relationship between the parties (or certain attendant circumstances not at issue in this case), there is no duty to prevent a third person from causing harm to another.”
It should be noted that testimony from the Citgo employee was to the effect that showing the videotape was in contravention of company policy but the Court found the following analogy to be applicable on page 7 of its opinion wherein the Court stated the following:
“Citgo properly analogizes its position with that of an innocent bystander who responds to the question, ‘Did anyone see who broke into my car?’ The witness who responds with a description of the thief cannot be responsible for the actions of the inquiring crime-victim in following-up on that description.”
Subrogation – Enforcement of Lien – Plaintiff’s Attorney Held To Be A Fiduciary Of Monies Tendered By A Liability Insurance Carrier
Qualchoice, Inc. v. Paige-Thompson, Court of Appeals, Eighth Appellate District
Case No. CA 06 88233
Curtin & Associates, LLP was involved in a significant case decided by the Eighth District Court of Appeals which could have a significant impact in the arena of liability with respect to subrogation claims and/or liens. The facts of the case were that counsel for the plaintiff settled a claim with the liability insurance carrier for $25,000. The claims specialist for the insurance carrier wrote a letter in clear and unambiguous terms indicating that the claim was settled contingent upon resolution of a lien asserted by Qualchoice in the amount of $9,000. A follow-up letter was sent, by American Family, confirming that counsel for the plaintiff’s office would resolve the medical lien that had been asserted by Qualchoice. The plaintiffs subsequently signed a release in favor of the American Family insured and the release made no mention of the Qualchoice lien.
Counsel for the plaintiff deposited the amount of the Qualchoice lien into escrow while he attempted to resolve the lien. He directed correspondence to American Family which stated the following on page 3:
“In response to your recent call, please be advised that we are still trying to resolve the alleged subrogation lien of Qualchoice. We are holding Nine Thousand Three Hundred Dollars and Sixty Nine Cents ($9,309.69), the amount of the alleged lien, in Escrow.”
Qualchoice subsequently filed a lawsuit against the American Family insured to enforce its subrogation lien inasmuch as it was never paid the $9,000 by counsel for the plaintiff. The American Family insured filed a claim against the original plaintiff (Brenda Jones) as well as sought leave to add as a party the offices of counsel for the plaintiff arguing that he had breached the terms of the settlement agreement.
The trial court granted the original plaintiff’s (Jones) motion for summary judgment and denied a motion for leave to file a third party complaint against the law firm who had failed to properly protect the subrogation lien. On page 9 of its opinion, the Eighth District Court of Appeals upheld a fiduciary concept extending between American Family and the offices of counsel for the injured plaintiff (Jones). The Court stated the following in its opinion:
“Lastly, we consider the Joneses’ argument that there was no agreement to indemnify Paige-Thomson. Contrary to the Joneses’ contention that Pomerantz did not enter into any agreement to pay Qualchoice’s subrogation claim, the record is clear that he did. In light of the correspondence set forth above, we find no genuine issue of material fact on this issue. The record is clear that Pomerantz agreed with American Family to ‘resolve’ Qualchoice’s subrogation claim. Pomerantz’s letter of December 6, 2004 to Hollern, in which he noted that he was ‘still trying’ to ‘resolve’ the lien and, to that end, was holding the money in escrow, and further, that his client would ‘resolve this lien,’ specifically confirms the agreement. If he had not agreed to ‘resolve’ the lien, either by paying it or by challenging it in a declaratory judgment action, there would have been no need for him to put the money in escrow.
Moreover, although American Family is not a party to this suit, we note that when Pomerantz put $9,309.69 of American Family’s money in escrow, he created a fiduciary relationship with American Family, in addition to his already existing fiduciary relationship with the Joneses.”
On pages 10 and 11 of its opinion, the Court went on to indicate that Mr. Pomerantz would need American Family’s consent prior to making any distributions of the roughly $9,000 worth of funds and stated:
“Although Pomerantz asserts that he properly released the funds to his clients, we find nothing in the record indicating that American Family consented to the disbursement of the funds.
Because Pomerantz agreed with American Family, on behalf of the Joneses, to pay the Qualchoice lien, the trial court erred in granting summary judgment to the Joneses.”
If there is an agreement between a liability insurance carrier and the offices of counsel for the plaintiff, this particular decision clearly stands for the proposition that a fiduciary duty exists between those two entities and counsel for the plaintiff must honor those fiduciary obligations. The Court of Appeals concluded that the lower court erred in denying the motion to join the attorney and his law firm as third party defendants.
By way of update, counsel for the plaintiff has filed a Memorandum in Support of Jurisdiction to the Ohio Supreme Court.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at http://www.curtinlawfirm.com/. For your convenience, we will post these cases on our website in the “Newsletter” link.
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.