New Website
Curtin & Associates, LLP is pleased to announce the completion of our new website. A special feature, unique to this website, enables our clients to research the archived newsletters utilizing a search engine. Please visit the new website at http://www.curtinlawfirm.com/ and we welcome your comments.
Statute of Limitations – Parental Loss of Consortium
Fehrenbach v. O’Malley, (2007) 113 Ohio St.3d 18:
The Ohio Supreme Court dealt with a medical malpractice case wherein a minor child, Tara Fehrenbach, was allegedly injured as a result of medical negligence. The family filed their complaint five years after the claim accrued. The central issue in this decision was whether or not the parent’s loss of consortium claim was time barred.
The Court began its analysis by noting that O.R.C.P. 19.1 dealing with compulsory joinder, represented a public policy that the Court wished to advance so as to avoid the separate prosecution of claims. The Court stated in paragraph 19 of its opinion, the following:
“Current (i.e. pre-Rule) practice allows plaintiffs, at their option, to separately pursue these claims. When these claims are separately prosecuted defendant is required to defend twice. Much evidence must be repeated and there is useless expenditure of, inter alia., court time. Furthermore, since the claims are related, difficult questions of collateral estoppel and res judicata often arise. Frequently, the results are inconsistent and not compatible. Consequently, Rule 19.1 is designed to obviate these problems and to serve the interests of society and of the parties by requiring disposition of the related claims in one action.”
The Court concluded by finding that the statute of limitations is tolled, for a parent’s loss of consortium claim, during the time that the child is a minor. In paragraph 22 of its opinion, the Court stated the following:
“We hold that because a parent’s claim for loss of consortium against a third party for injuries to the parent’s minor child is an interest that is ‘joint and inseparable’ from the child’s own claim for purposes of R.C. 2305.16, the parent’s claim may be tolled during the child’s disability.”
Therefore, the parents are allowed to “piggyback” with regard to a tolling provision inuring to the benefit of the child that now is extended to the parent’s claim for loss of consortium.
Motion to Intervene – Denial Not an Appealable Order
Gehm v. Timberline Post & Frame, (2007) 112 Ohio St.3d 514:
Westfield Insurance Company insured Timberline Post & Frame, who was sued by the plaintiff seeking damages pertaining to a building on the plaintiff’s property. Westfield had filed a declaratory judgment action against Timberline and a motion for leave to intervene in the underlying lawsuit. The trial court denied the motion to intervene and Westfield filed a timely appeal.
The Court framed the issue in paragraph 6 of its opinion wherein it stated the following:
“On February 8, 2006, we determined that a conflict exists. The question certified is ‘Whether the denial of a motion for leave to intervene on behalf of an insurer for purposes of participating in discovery and submitting jury interrogatories is a final appealable order pursuant to R.C. 2505.02.’”
Westfield argued that the denial of the motion to intervene was a final appealable order inasmuch as the Ohio Supreme Court, in Howell v. Richardson (1989), 45 Ohio St.3d 365, had applied collateral estoppel to prevent litigation in a declaratory judgment action by an insurance carrier. The argument was summarized and addressed in paragraphs 30 – 32 of the opinion wherein the Court stated the following:
“The next question is whether the denial of the motion to intervene is a final, appealable order because it ‘in effect determines the action and prevents a judgment.’ R.C. 2505.02(B)(1). Westfield argues that this court’s decision in Howell v. Richardson (1989), 45 Ohio St.3d 365, 544 N.E.2d 878, would collaterally estop any future litigation in Westfield’s declaratory-judgment action.
Westfield misconstrues Howell, which imposed collateral estoppel against an insurer when it ‘could have intervened in the prior proceeding.’ Id. at 367, 544 N.E.2d 878. When a party has sought and been denied intervention, collateral estoppel will not prohibit future litigation of similar issues. As Westfield has sought and been denied intervention here, it will not be estopped from litigating its claims in another case.
Therefore, there is no order that has determined an action with respect to Westfield, and the denial of the motion to intervene prevented no judgment. The denial of the motion to intervene for the sole purpose of submitting interrogatories does not affect a substantial right, as defined in R.C. 2505.02, sufficiently to create a final, appealable order.”
Based upon the Court’s rationale, it was determined that Westfield did not have the right to seek appellate review of the trial court’s denial of the motion to intervene.
Workers’ Compensation – Choice of Law
Am. Interstate Ins. Co. v. G & H Serv. Ctr. (2007), 112 Ohio St.3d 521:
The Ohio Supreme Court dealt with a certified conflict which was summarized in paragraph 1 of the syllabus as follows:
“This case is a certified conflict that raises the issue of choice of law in an action for subrogation brought by a workers’ compensation insurer against an employee and a third-party tortfeasor.”
The Court began its analysis by noting that, in the context of choice of laws, the Ohio Supreme Court follows the Restatement of the Law 2d, Conflict of Laws. Accordingly, any analytical analysis in this arena necessitates reference to the foregoing learned treatise. The Restatement approach generally balances the competing interests of each state (Louisiana and Ohio in this case) in order to determine which state’s interest justifies application of that state’s law. In paragraph 20 of its opinion, the Court reached its conclusion and indicated the following:
“The Restatement is clear: subrogation claims arising from workers’ compensation payments are governed by the laws of the state in which compensation was paid. This conclusion is dictated by Section 185 of the Restatement, which governs choice of law in workers’ compensation claims. Thus, Section 185 of the Restatement requires that Louisiana law apply to subrogation issues asserted by American Interstate, ...”
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.
New Website
Curtin & Associates, LLP is pleased to announce the completion of our new website. A special feature, unique to this website, enables our clients to research the archived newsletters utilizing a search engine. Please visit the new website at http://www.curtinlawfirm.com/ and we welcome your comments.
Statute of Limitations – Parental Loss of Consortium
Fehrenbach v. O’Malley, (2007) 113 Ohio St.3d 18:
The Ohio Supreme Court dealt with a medical malpractice case wherein a minor child, Tara Fehrenbach, was allegedly injured as a result of medical negligence. The family filed their complaint five years after the claim accrued. The central issue in this decision was whether or not the parent’s loss of consortium claim was time barred.
The Court began its analysis by noting that O.R.C.P. 19.1 dealing with compulsory joinder, represented a public policy that the Court wished to advance so as to avoid the separate prosecution of claims. The Court stated in paragraph 19 of its opinion, the following:
“Current (i.e. pre-Rule) practice allows plaintiffs, at their option, to separately pursue these claims. When these claims are separately prosecuted defendant is required to defend twice. Much evidence must be repeated and there is useless expenditure of, inter alia., court time. Furthermore, since the claims are related, difficult questions of collateral estoppel and res judicata often arise. Frequently, the results are inconsistent and not compatible. Consequently, Rule 19.1 is designed to obviate these problems and to serve the interests of society and of the parties by requiring disposition of the related claims in one action.”
The Court concluded by finding that the statute of limitations is tolled, for a parent’s loss of consortium claim, during the time that the child is a minor. In paragraph 22 of its opinion, the Court stated the following:
“We hold that because a parent’s claim for loss of consortium against a third party for injuries to the parent’s minor child is an interest that is ‘joint and inseparable’ from the child’s own claim for purposes of R.C. 2305.16, the parent’s claim may be tolled during the child’s disability.”
Therefore, the parents are allowed to “piggyback” with regard to a tolling provision inuring to the benefit of the child that now is extended to the parent’s claim for loss of consortium.
Motion to Intervene – Denial Not an Appealable Order
Gehm v. Timberline Post & Frame, (2007) 112 Ohio St.3d 514:
Westfield Insurance Company insured Timberline Post & Frame, who was sued by the plaintiff seeking damages pertaining to a building on the plaintiff’s property. Westfield had filed a declaratory judgment action against Timberline and a motion for leave to intervene in the underlying lawsuit. The trial court denied the motion to intervene and Westfield filed a timely appeal.
The Court framed the issue in paragraph 6 of its opinion wherein it stated the following:
“On February 8, 2006, we determined that a conflict exists. The question certified is ‘Whether the denial of a motion for leave to intervene on behalf of an insurer for purposes of participating in discovery and submitting jury interrogatories is a final appealable order pursuant to R.C. 2505.02.’”
Westfield argued that the denial of the motion to intervene was a final appealable order inasmuch as the Ohio Supreme Court, in Howell v. Richardson (1989), 45 Ohio St.3d 365, had applied collateral estoppel to prevent litigation in a declaratory judgment action by an insurance carrier. The argument was summarized and addressed in paragraphs 30 – 32 of the opinion wherein the Court stated the following:
“The next question is whether the denial of the motion to intervene is a final, appealable order because it ‘in effect determines the action and prevents a judgment.’ R.C. 2505.02(B)(1). Westfield argues that this court’s decision in Howell v. Richardson (1989), 45 Ohio St.3d 365, 544 N.E.2d 878, would collaterally estop any future litigation in Westfield’s declaratory-judgment action.
Westfield misconstrues Howell, which imposed collateral estoppel against an insurer when it ‘could have intervened in the prior proceeding.’ Id. at 367, 544 N.E.2d 878. When a party has sought and been denied intervention, collateral estoppel will not prohibit future litigation of similar issues. As Westfield has sought and been denied intervention here, it will not be estopped from litigating its claims in another case.
Therefore, there is no order that has determined an action with respect to Westfield, and the denial of the motion to intervene prevented no judgment. The denial of the motion to intervene for the sole purpose of submitting interrogatories does not affect a substantial right, as defined in R.C. 2505.02, sufficiently to create a final, appealable order.”
Based upon the Court’s rationale, it was determined that Westfield did not have the right to seek appellate review of the trial court’s denial of the motion to intervene.
Workers’ Compensation – Choice of Law
Am. Interstate Ins. Co. v. G & H Serv. Ctr. (2007), 112 Ohio St.3d 521:
The Ohio Supreme Court dealt with a certified conflict which was summarized in paragraph 1 of the syllabus as follows:
“This case is a certified conflict that raises the issue of choice of law in an action for subrogation brought by a workers’ compensation insurer against an employee and a third-party tortfeasor.”
The Court began its analysis by noting that, in the context of choice of laws, the Ohio Supreme Court follows the Restatement of the Law 2d, Conflict of Laws. Accordingly, any analytical analysis in this arena necessitates reference to the foregoing learned treatise. The Restatement approach generally balances the competing interests of each state (Louisiana and Ohio in this case) in order to determine which state’s interest justifies application of that state’s law. In paragraph 20 of its opinion, the Court reached its conclusion and indicated the following:
“The Restatement is clear: subrogation claims arising from workers’ compensation payments are governed by the laws of the state in which compensation was paid. This conclusion is dictated by Section 185 of the Restatement, which governs choice of law in workers’ compensation claims. Thus, Section 185 of the Restatement requires that Louisiana law apply to subrogation issues asserted by American Interstate, ...”
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.