Curtin & Associates hopes that all of our clients enjoyed their 4th of July holiday. Our office has received many compliments for the new website and search engine. If you have not had a chance to examine the new website, please feel free to take a moment as well as to utilize the search engine which permits retrieval of the prior newsletters based upon the utilization of Key Words.
Trial Updates
Curtin & Associates recently tried the case of Patterson v. Moore in the Summit County Court of Common Pleas involving a rear-end motor vehicle accident. Both of the plaintiffs commenced treatment with Akron Square Chiropractic whose total medical bills were in the amount of approximately $4,000 (combined) for both plaintiffs. During the trial, the chiropractor from Akron Square Chiropractic testified live. Curtin & Associates challenged the necessity of any of the care and treatment rendered at Akron Square Chiropractic and the jury returned a verdict in the amount of $978.15 for Eric Patterson and $834.71 for Laura Patterson.
Neighborhood Dispute Results In Recognition Of New Cause Of Action In The State Of Ohio
Welling v. Weinfeld, (2007) 113 Ohio St.3d 464
The Ohio Supreme Court recently decided a case based upon a unique set of facts dealing with a neighborhood dispute between property owners, one of whom believed that the other’s son was responsible for throwing a rock through their window. Based upon that suspicion, the damaged property owner distributed a handbill, although not mentioning the alleged perpetrator, at the alleged perpetrator’s work place as well as the school attended by the alleged perpetrator’s family. In response thereto, a lawsuit was filed which resulted in the alleged perpetrator prevailing upon an invasion of privacy claim of $5,000 in compensatory damages and $250,000 in punitive damages as against the party that distributed the flier.
Judge Pfeifer wrote in paragraph 1 of the opinion, the following:
“From neighborhood friction that spiraled into dueling litigation has emerged a significant question for this court: Does Ohio recognize the ‘false light’ theory of the tort of invasion of privacy? Today we recognize that theory of recovery.”
The Court based its decision upon the Restatement of the Law 2d, Torts. This learned treatise is an amalgam of legal theories and oftentimes is referred to by law review authors in conjunction with appellate courts pertaining to a certain subject matter. The legal issue was summarized in paragraph 7 of its opinion wherein it stated the following:
“The Wellings allege that Weinfeld’s distribution of the handbills spread wrongful publicity about them that unreasonably placed them in a false light before the public.”
The Court recognized the “false light” theory in the context of invasion of privacy and stated in its syllabus, the following:
“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. (Restatement of the Law 2d, Torts (1977), Section 652E, adopted.)
The case could have implications with regard to liability insurance policies and would likely be the appropriate subject matter of a narrowly tailored exclusion. If, however, a claim was made under a liability insurance policy, focus should appropriately be on the second element of the false light theory which basically requires a finding that the actor had “knowledge of or acted in reckless disregard as to the falsity” which likely would remove many actions from the general definition of a “occurrence” which typically is described as an accident or could fall within an existing exclusion.
“Double-Dismissal Rule” – Limitation To Instances Wherein Dismissal Is Limited To Plaintiff’s Control
Olynyk v. Scoles, (2007) 114 Ohio St.3d 56
The Ohio Supreme Court heard a medical malpractice case that originally had been filed by the plaintiff, as a minor, but the trial court, in a journal entry, granted a Civ.R. 41(A)(2) dismissal noting that the case was “disposed without prejudice.” Subsequently, the plaintiff refiled the action (as an adult), but dismissed the second case close in time to the trial. The lower court issued a journal entry finding that the second dismissal was a dismissal with prejudice based upon the “double-dismissal rule.”
The Court reviewed the three types of methodology associated with the dismissal of an action pursuant to O.R.C.P. 41. Those several methods were described in paragraph 25 of the opinion wherein the Court stated the following:
“Civ. R. 41(A) gives a plaintiff an opportunity to use one Civ.R. 41(A)(1)(a) notice of dismissal without prejudice prior to the commencement of trial (subject to certain conditions such as being unavailable when a related counterclaim is pending and the plaintiff’s possibly being required under Civ.R. 41(D) to pay any outstanding costs of the claim previously dismissed before proceeding on a refiled claim). But a plaintiff can take advantage of such a unilateral dismissal without prejudice only once, because a second notice of dismissal is with prejudice to the case. Plaintiff also has two other avenues for dismissal without prejudice under Civ.R. 41(A), but although those dismissals are at plaintiff’s instigation, neither can be unilaterally accomplished, as both contain significant limitations on the plaintiff’s ability to use them. A stipulated dismissal under Civ.R. 41(A)(1)(b) requires the cooperation of the opposing party or parties for the dismissal to be accomplished. A dismissal by court order under Civ.R. 41(A)(2) requires the court to approve the dismissal before it can occur. Further, under all three types of dismissals, plaintiffs are subject to other concerns, such as statutes of limitations.”
The Court went on to reason that inasmuch as Civ.R. 41(A)(1)(a) is the only methodology capable of being invoked by the plaintiff unilaterally, the double-dismissal rule is limited to those types of dismissals. The Court concluded its opinion by noting that in order for the “double-dismissal” rule to apply, both of the dismissal must be effectuated by the plaintiff and any dismissal utilizing consent of the parties or by order of the court renders inapplicable the “double-dismissal” rule.
Appealable Order – Pending Motion For Prejudgment Interest
Miller v. First Internatl. Fid. & Trust Bldg., Ltd., (2007) 113 Ohio St.3d 474
In Miller v. First Internatl. Fid. & Trust Bldg., Ltd., the Ohio Supreme Court dealt with a case wherein a verdict had been rendered in favor of the plaintiff and the defendant appealed the denial of a motion for judgment not withstanding the verdict or for a new trial. The issue before the Court was whether or not the journalized jury verdict was a final appealable order when a motion for prejudgment interest was still pending at the trial court level.
The Ohio Supreme Court answered that question in its syllabus and stated the following:
“A journalized jury verdict is not a final, appealable order when a motion for prejudgment interest has been filed and remains pending.”
The Court disagreed that judicial economy would be promoted by allowing an appeal prior to the determination of prejudgment interest. Similarly, the Court also set aside arguments raised relative to discovery during the prejudgment interest proceeding finding that the Court had appropriately addressed these issues in its decision of Moskovitz v. Mt. Sinai Med. Ctr. 69 Ohio St.3d at 661-662.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at 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.
Curtin & Associates hopes that all of our clients enjoyed their 4th of July holiday. Our office has received many compliments for the new website and search engine. If you have not had a chance to examine the new website, please feel free to take a moment as well as to utilize the search engine which permits retrieval of the prior newsletters based upon the utilization of Key Words.
Trial Updates
Curtin & Associates recently tried the case of Patterson v. Moore in the Summit County Court of Common Pleas involving a rear-end motor vehicle accident. Both of the plaintiffs commenced treatment with Akron Square Chiropractic whose total medical bills were in the amount of approximately $4,000 (combined) for both plaintiffs. During the trial, the chiropractor from Akron Square Chiropractic testified live. Curtin & Associates challenged the necessity of any of the care and treatment rendered at Akron Square Chiropractic and the jury returned a verdict in the amount of $978.15 for Eric Patterson and $834.71 for Laura Patterson.
Neighborhood Dispute Results In Recognition Of New Cause Of Action In The State Of Ohio
Welling v. Weinfeld, (2007) 113 Ohio St.3d 464
The Ohio Supreme Court recently decided a case based upon a unique set of facts dealing with a neighborhood dispute between property owners, one of whom believed that the other’s son was responsible for throwing a rock through their window. Based upon that suspicion, the damaged property owner distributed a handbill, although not mentioning the alleged perpetrator, at the alleged perpetrator’s work place as well as the school attended by the alleged perpetrator’s family. In response thereto, a lawsuit was filed which resulted in the alleged perpetrator prevailing upon an invasion of privacy claim of $5,000 in compensatory damages and $250,000 in punitive damages as against the party that distributed the flier.
Judge Pfeifer wrote in paragraph 1 of the opinion, the following:
“From neighborhood friction that spiraled into dueling litigation has emerged a significant question for this court: Does Ohio recognize the ‘false light’ theory of the tort of invasion of privacy? Today we recognize that theory of recovery.”
The Court based its decision upon the Restatement of the Law 2d, Torts. This learned treatise is an amalgam of legal theories and oftentimes is referred to by law review authors in conjunction with appellate courts pertaining to a certain subject matter. The legal issue was summarized in paragraph 7 of its opinion wherein it stated the following:
“The Wellings allege that Weinfeld’s distribution of the handbills spread wrongful publicity about them that unreasonably placed them in a false light before the public.”
The Court recognized the “false light” theory in the context of invasion of privacy and stated in its syllabus, the following:
“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. (Restatement of the Law 2d, Torts (1977), Section 652E, adopted.)
The case could have implications with regard to liability insurance policies and would likely be the appropriate subject matter of a narrowly tailored exclusion. If, however, a claim was made under a liability insurance policy, focus should appropriately be on the second element of the false light theory which basically requires a finding that the actor had “knowledge of or acted in reckless disregard as to the falsity” which likely would remove many actions from the general definition of a “occurrence” which typically is described as an accident or could fall within an existing exclusion.
“Double-Dismissal Rule” – Limitation To Instances Wherein Dismissal Is Limited To Plaintiff’s Control
Olynyk v. Scoles, (2007) 114 Ohio St.3d 56
The Ohio Supreme Court heard a medical malpractice case that originally had been filed by the plaintiff, as a minor, but the trial court, in a journal entry, granted a Civ.R. 41(A)(2) dismissal noting that the case was “disposed without prejudice.” Subsequently, the plaintiff refiled the action (as an adult), but dismissed the second case close in time to the trial. The lower court issued a journal entry finding that the second dismissal was a dismissal with prejudice based upon the “double-dismissal rule.”
The Court reviewed the three types of methodology associated with the dismissal of an action pursuant to O.R.C.P. 41. Those several methods were described in paragraph 25 of the opinion wherein the Court stated the following:
“Civ. R. 41(A) gives a plaintiff an opportunity to use one Civ.R. 41(A)(1)(a) notice of dismissal without prejudice prior to the commencement of trial (subject to certain conditions such as being unavailable when a related counterclaim is pending and the plaintiff’s possibly being required under Civ.R. 41(D) to pay any outstanding costs of the claim previously dismissed before proceeding on a refiled claim). But a plaintiff can take advantage of such a unilateral dismissal without prejudice only once, because a second notice of dismissal is with prejudice to the case. Plaintiff also has two other avenues for dismissal without prejudice under Civ.R. 41(A), but although those dismissals are at plaintiff’s instigation, neither can be unilaterally accomplished, as both contain significant limitations on the plaintiff’s ability to use them. A stipulated dismissal under Civ.R. 41(A)(1)(b) requires the cooperation of the opposing party or parties for the dismissal to be accomplished. A dismissal by court order under Civ.R. 41(A)(2) requires the court to approve the dismissal before it can occur. Further, under all three types of dismissals, plaintiffs are subject to other concerns, such as statutes of limitations.”
The Court went on to reason that inasmuch as Civ.R. 41(A)(1)(a) is the only methodology capable of being invoked by the plaintiff unilaterally, the double-dismissal rule is limited to those types of dismissals. The Court concluded its opinion by noting that in order for the “double-dismissal” rule to apply, both of the dismissal must be effectuated by the plaintiff and any dismissal utilizing consent of the parties or by order of the court renders inapplicable the “double-dismissal” rule.
Appealable Order – Pending Motion For Prejudgment Interest
Miller v. First Internatl. Fid. & Trust Bldg., Ltd., (2007) 113 Ohio St.3d 474
In Miller v. First Internatl. Fid. & Trust Bldg., Ltd., the Ohio Supreme Court dealt with a case wherein a verdict had been rendered in favor of the plaintiff and the defendant appealed the denial of a motion for judgment not withstanding the verdict or for a new trial. The issue before the Court was whether or not the journalized jury verdict was a final appealable order when a motion for prejudgment interest was still pending at the trial court level.
The Ohio Supreme Court answered that question in its syllabus and stated the following:
“A journalized jury verdict is not a final, appealable order when a motion for prejudgment interest has been filed and remains pending.”
The Court disagreed that judicial economy would be promoted by allowing an appeal prior to the determination of prejudgment interest. Similarly, the Court also set aside arguments raised relative to discovery during the prejudgment interest proceeding finding that the Court had appropriately addressed these issues in its decision of Moskovitz v. Mt. Sinai Med. Ctr. 69 Ohio St.3d at 661-662.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at 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.