Counsel For The Plaintiff’s Intentional Misstatement Of Facts
To A Liability Insurance Carrier Resulted In A Six Month Suspension
From The Practice Of Law
Cleveland Bar Assn. v. McMahon, (2007) 114 Ohio St.3d 331
The Ohio Supreme Court, in the context of attorney discipline, recently decided a very interesting case which focused upon communications between an attorney for the plaintiff and a third party’s liability insurance carrier. The defendant/insured had been cited by the police for improperly changing lanes. However, the liability insurance carrier for the defendant did not concede the issue of liability and in order to advance settlement negotiations, counsel for the plaintiff directed a letter to the liability insurance carrier which purported to be a transcript from the Shaker Heights Municipal Court criminal proceedings for the traffic ticket issued to Ms. Marrs, the insured. Although the attorney conceded that there was no actual transcript, he represented to the liability insurance carrier that the following colloquy had occurred in court as set forth in paragraphs 7 through 13 of the opinion:
“Judge: Ms. Jerri Lynn Marrs – How do you plead on the charge of improper lane change at Fairmont Circle in Shaker Heights, Ohio?
Ms. Marrs: No contest, your Honor.
Judge: Do you have any thing to say in your defense?
Ms. Marrs: I was unfortunately in the wrong lane for proceeding straight in the intersection and by mistake, hit the other car in its lane.
Judge: I assume that since you are not contesting the traffic charge that you were at fault for this accident?
Ms. Marrs: Yes, your Honor. The accident was my fault.
Judge: Then I find you guilty on the charge of improper lane change, causing an accident, and you are fined $100.00, plus court costs.”
The Ohio Supreme Court noted that the foregoing alleged testimony never occurred. In paragraph 19 of its opinion, the Court stated the following:
“In fact, Marrs (the defendant) had failed to appear in court to answer to the charge of improperly changing lanes, she had never admitted fault on the record, and she had never been ‘officially found ... guilty’ of this traffic offense. Respondent’s August 20 letter thus contained demonstrably false information about Marrs ...”
The recommendation from the Board of Commissioners on Grievances and Discipline was that there would be a six month suspension but said suspension would be stayed. The Ohio Supreme Court rejected this recommendation and, in fact, insisted upon an actual six month suspension from the practice of law and held the following in paragraphs 28 and 29 of its opinion:
“We find respondent’s fabrication a ‘deliberate effort to deceive’ that distinguishes his case from those involving inadvertence or haphazard corner-cutting. (citation omitted) Indeed, for the audacity of respondent’s ethical violations, the general rule requiring an actual suspension from the practice of law must apply. (citations omitted)
Lawyers who choose to engage in fabrication of evidence, deceit, misrepresentation of facts, and distortion of truth do so at their peril. They are admonished that the practice of law is not a right, and our code of professional responsibility demands far more of those in our profession. Here, respondent has presented much evidence in mitigation, but an actual suspension is appropriate for this conduct.” (emphasis added)
The foregoing language is a useful reminder that an attorney in negotiating with a liability insurance carrier cannot take free license with the truth and this particular case is included in our Newsletter representative of the Ohio Supreme Court’s intolerance of a “deliberate effort to deceive.”
Malicious Prosecution – Statute Of Limitations
Froehlich v. Ohio Dept. of Mental Health (2007) 114 Ohio St.3d 286
Patricia Froehlich was a registered nurse employed at a psychiatric hospital. During her tenure, a patient was moved to a “quiet room” by Ms. Froehlich and subsequently the patient claimed that she had been dragged to the “quiet room” by staff thus constituting patient abuse. In addition, an issue also arose as to the necessity of using restraints on the patient in the transportation to the “quiet room.”
The operative facts were summarized in paragraphs 4 and 5 of the opinion wherein it was stated as follows:
“The Cambridge Psychiatric Hospital and the Ohio State Highway Patrol investigated allegations that the patient was abused and that the use of restraints was not proper. In March and April 2000, the Guernsey County prosecutor sought a felony indictment against Froehlich for the first claim, patient abuse, but decided not to seek an indictment for the second claim of unauthorized use of restraints. The grand jury returned a no-bill of indictment on the charge of patient abuse on April 4, 2000.
After the grand jury returned the no-bill, the Ohio State Highway Patrol, the Cambridge Psychiatric Hospital police, and the county prosecutor continued to discuss the possibility of indicting Froehlich on a charge of unauthorized use of restraints. However, the prosecutor eventually declined to present further charges to the grand jury and notified the Ohio State Highway Patrol of this decision by letter on May 22, 2001.”
Ms. Froehlich filed a lawsuit in the Ohio Court of Claims alleging malicious prosecution with a filing date of August 8, 2001. The issue in the case dealt with the question of when the applicable statute of limitations would begin to run and the Court answered this question in paragraph 1 of its syllabus wherein it stated the following:
“In this case, we are asked to determine whether the statute of limitations begins to run for a malicious prosecution claim when a grand jury issues a no-bill of indictment, or when the prosecutor later determines not to pursue any further criminal charges against the plaintiff. We hold that a cause of action accrues for malicious prosecution when a no-bill is issued and that the statute of limitations is not extended by continuing conversations with a prosecutor concerning additional charges.”
Although the prosecutor had been contemplating the second claim of unauthorized use of restraints, inasmuch as no charges were filed, the Ohio Supreme Court concluded that the plaintiff’s cause of action was time barred.
Underinsured Motorist Coverage – “Amounts Available For Payment”
Webb v. McCarty (2007) 114 Ohio St.3d 292
The Ohio Supreme Court issued an opinion which is enlightening in an examination of the concurring and dissenting opinions as it pertains to the bench’s interpretation of the term “amounts available for payment.” The case at issue involved a tortfeasor with $300,000 per accident limits and an injured plaintiff seeking underinsured motorist benefits with limits of $300,000. The husband settled his claim for $25,000, having himself been injured in the accident. His wife, who was killed, settled her claim for $269,836. It is important to note that the Court stated the following in paragraph 2 of its syllabus:
“We conclude that Webb’s UM policy provides coverage for the difference between the $300,000-per-accident limit and the $269,836.08 that was paid to the estate. Although we are unable to determine from the briefs or oral argument how they reach the number, the parties appear to agree that the amount paid under the policy is $269,836.08.”
Three members of the bench indicated their willingness to overrule prior case law in order to reflect a “limits to limits” analysis. Justice Stratton stated in paragraph 8 of her concurrence, the following:
“I continue to believe that ‘the plain language of the statute mandates a limits-to-limits comparison as opposed to a comparison of the amounts actually recovered to the underinsured motorist policy limits.”
Justice Lanzinger stated in paragraph 10 of the concurrence:
“Because the parties did not conduct the appropriate analysis pursuant to Westfield Ins. Co. v. Galatis (citations omitted) to overrule Littrell v. Wigglesworth (citations omitted) and Clark v. Scarpelli (citations omitted), I concur in judgment only.”
Justice O’Donnell stated in paragraphs 13 and 14 of the opinion, the following:
“I can find no language in this statute that refers to ‘the amounts actually recovered.’ My analysis of this statute is, therefore, that it has been wrongly interpreted and applied; that these cases have produced a body of case authority at odds with legislative intent, thereby defying practical workability; and that abandoning our Littrell/Clark precedent would not create an undue hardship for those who have relied upon it.
Accordingly, I would apply Westfield Ins. Co. v. Galatis (citations omitted), overrule Littrell and Clark, give meaning to the plain language of this statute, reverse the judgment of the court of appeals, and adopt the well-reasoned dissent authored by Justice Cook in Littrell.”
The foregoing excerpts could foreshadow future decisions on this topic as a larger coalition favors the “limits to limits” analysis.
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.
Counsel For The Plaintiff’s Intentional Misstatement Of Facts
To A Liability Insurance Carrier Resulted In A Six Month Suspension
From The Practice Of Law
Cleveland Bar Assn. v. McMahon, (2007) 114 Ohio St.3d 331
The Ohio Supreme Court, in the context of attorney discipline, recently decided a very interesting case which focused upon communications between an attorney for the plaintiff and a third party’s liability insurance carrier. The defendant/insured had been cited by the police for improperly changing lanes. However, the liability insurance carrier for the defendant did not concede the issue of liability and in order to advance settlement negotiations, counsel for the plaintiff directed a letter to the liability insurance carrier which purported to be a transcript from the Shaker Heights Municipal Court criminal proceedings for the traffic ticket issued to Ms. Marrs, the insured. Although the attorney conceded that there was no actual transcript, he represented to the liability insurance carrier that the following colloquy had occurred in court as set forth in paragraphs 7 through 13 of the opinion:
“Judge: Ms. Jerri Lynn Marrs – How do you plead on the charge of improper lane change at Fairmont Circle in Shaker Heights, Ohio?
Ms. Marrs: No contest, your Honor.
Judge: Do you have any thing to say in your defense?
Ms. Marrs: I was unfortunately in the wrong lane for proceeding straight in the intersection and by mistake, hit the other car in its lane.
Judge: I assume that since you are not contesting the traffic charge that you were at fault for this accident?
Ms. Marrs: Yes, your Honor. The accident was my fault.
Judge: Then I find you guilty on the charge of improper lane change, causing an accident, and you are fined $100.00, plus court costs.”
The Ohio Supreme Court noted that the foregoing alleged testimony never occurred. In paragraph 19 of its opinion, the Court stated the following:
“In fact, Marrs (the defendant) had failed to appear in court to answer to the charge of improperly changing lanes, she had never admitted fault on the record, and she had never been ‘officially found ... guilty’ of this traffic offense. Respondent’s August 20 letter thus contained demonstrably false information about Marrs ...”
The recommendation from the Board of Commissioners on Grievances and Discipline was that there would be a six month suspension but said suspension would be stayed. The Ohio Supreme Court rejected this recommendation and, in fact, insisted upon an actual six month suspension from the practice of law and held the following in paragraphs 28 and 29 of its opinion:
“We find respondent’s fabrication a ‘deliberate effort to deceive’ that distinguishes his case from those involving inadvertence or haphazard corner-cutting. (citation omitted) Indeed, for the audacity of respondent’s ethical violations, the general rule requiring an actual suspension from the practice of law must apply. (citations omitted)
Lawyers who choose to engage in fabrication of evidence, deceit, misrepresentation of facts, and distortion of truth do so at their peril. They are admonished that the practice of law is not a right, and our code of professional responsibility demands far more of those in our profession. Here, respondent has presented much evidence in mitigation, but an actual suspension is appropriate for this conduct.” (emphasis added)
The foregoing language is a useful reminder that an attorney in negotiating with a liability insurance carrier cannot take free license with the truth and this particular case is included in our Newsletter representative of the Ohio Supreme Court’s intolerance of a “deliberate effort to deceive.”
Malicious Prosecution – Statute Of Limitations
Froehlich v. Ohio Dept. of Mental Health (2007) 114 Ohio St.3d 286
Patricia Froehlich was a registered nurse employed at a psychiatric hospital. During her tenure, a patient was moved to a “quiet room” by Ms. Froehlich and subsequently the patient claimed that she had been dragged to the “quiet room” by staff thus constituting patient abuse. In addition, an issue also arose as to the necessity of using restraints on the patient in the transportation to the “quiet room.”
The operative facts were summarized in paragraphs 4 and 5 of the opinion wherein it was stated as follows:
“The Cambridge Psychiatric Hospital and the Ohio State Highway Patrol investigated allegations that the patient was abused and that the use of restraints was not proper. In March and April 2000, the Guernsey County prosecutor sought a felony indictment against Froehlich for the first claim, patient abuse, but decided not to seek an indictment for the second claim of unauthorized use of restraints. The grand jury returned a no-bill of indictment on the charge of patient abuse on April 4, 2000.
After the grand jury returned the no-bill, the Ohio State Highway Patrol, the Cambridge Psychiatric Hospital police, and the county prosecutor continued to discuss the possibility of indicting Froehlich on a charge of unauthorized use of restraints. However, the prosecutor eventually declined to present further charges to the grand jury and notified the Ohio State Highway Patrol of this decision by letter on May 22, 2001.”
Ms. Froehlich filed a lawsuit in the Ohio Court of Claims alleging malicious prosecution with a filing date of August 8, 2001. The issue in the case dealt with the question of when the applicable statute of limitations would begin to run and the Court answered this question in paragraph 1 of its syllabus wherein it stated the following:
“In this case, we are asked to determine whether the statute of limitations begins to run for a malicious prosecution claim when a grand jury issues a no-bill of indictment, or when the prosecutor later determines not to pursue any further criminal charges against the plaintiff. We hold that a cause of action accrues for malicious prosecution when a no-bill is issued and that the statute of limitations is not extended by continuing conversations with a prosecutor concerning additional charges.”
Although the prosecutor had been contemplating the second claim of unauthorized use of restraints, inasmuch as no charges were filed, the Ohio Supreme Court concluded that the plaintiff’s cause of action was time barred.
Underinsured Motorist Coverage – “Amounts Available For Payment”
Webb v. McCarty (2007) 114 Ohio St.3d 292
The Ohio Supreme Court issued an opinion which is enlightening in an examination of the concurring and dissenting opinions as it pertains to the bench’s interpretation of the term “amounts available for payment.” The case at issue involved a tortfeasor with $300,000 per accident limits and an injured plaintiff seeking underinsured motorist benefits with limits of $300,000. The husband settled his claim for $25,000, having himself been injured in the accident. His wife, who was killed, settled her claim for $269,836. It is important to note that the Court stated the following in paragraph 2 of its syllabus:
“We conclude that Webb’s UM policy provides coverage for the difference between the $300,000-per-accident limit and the $269,836.08 that was paid to the estate. Although we are unable to determine from the briefs or oral argument how they reach the number, the parties appear to agree that the amount paid under the policy is $269,836.08.”
Three members of the bench indicated their willingness to overrule prior case law in order to reflect a “limits to limits” analysis. Justice Stratton stated in paragraph 8 of her concurrence, the following:
“I continue to believe that ‘the plain language of the statute mandates a limits-to-limits comparison as opposed to a comparison of the amounts actually recovered to the underinsured motorist policy limits.”
Justice Lanzinger stated in paragraph 10 of the concurrence:
“Because the parties did not conduct the appropriate analysis pursuant to Westfield Ins. Co. v. Galatis (citations omitted) to overrule Littrell v. Wigglesworth (citations omitted) and Clark v. Scarpelli (citations omitted), I concur in judgment only.”
Justice O’Donnell stated in paragraphs 13 and 14 of the opinion, the following:
“I can find no language in this statute that refers to ‘the amounts actually recovered.’ My analysis of this statute is, therefore, that it has been wrongly interpreted and applied; that these cases have produced a body of case authority at odds with legislative intent, thereby defying practical workability; and that abandoning our Littrell/Clark precedent would not create an undue hardship for those who have relied upon it.
Accordingly, I would apply Westfield Ins. Co. v. Galatis (citations omitted), overrule Littrell and Clark, give meaning to the plain language of this statute, reverse the judgment of the court of appeals, and adopt the well-reasoned dissent authored by Justice Cook in Littrell.”
The foregoing excerpts could foreshadow future decisions on this topic as a larger coalition favors the “limits to limits” analysis.
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.