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            In Burnett, supra, the Ohio Supreme Court rendered a decision which is illuminating as it pertains to the analytical process associated with equal protection and due process clauses (concepts not typically reviewed in the insurance defense arena) and, therefore, is worthy of inclusion in this Newsletter. At the outset, the statute under review was repealed but the Court was interpreting the validity of the statute during the period of time in which it was in effect. The statute was O.R.C. 3937.18(K)(2) which upheld the propriety of exclusionary language, in the uninsured motorists coverage, based upon the intra-family exclusion. The Motorists Insurance policy tracked the language of O.R.C. 3937.18(K)(2) which was in effect at the time of the accident and was the subject matter of review. 

 

            The case is instructive predominantly due to facilitating an understanding of equal protection and due process analysis. Basically, the standard is that one person cannot have certain legal rights and remedies that are denied to the same individual who is similarly situated. Such disparate treatment is arguably a violation of the equal protection/due process clause of the Ohio Constitution but laws that adversely impact one classification of individuals to their detriment can be upheld if there is a rationale basis for such adverse treatment. Alternatively phrased, one classification of individuals may enjoy certain favorable rights and benefits and, if a rational basis exists for a law that similarly situated individuals do not enjoy the same rights or benefits (as those who enjoyed the full rights), can only be upheld if there is a rational basis for the disparity in treatment. 

 

            The utilization of this analysis was actually best described in the dissenting opinion wherein Judge Pfeifer stated the following in paragraphs 46 – 52, the following:

 

            “A family member cannot purchase an insurance policy that could provide her uninsured-motorist coverage for injuries caused by another family member’s negligence; any other citizen can purchase an insurance policy that would provide uninsured-motorist coverage for that same driver’s negligence.

 

            For instance, Passengers A and B are riding in a car driven by Driver. Driver is the spouse of Passenger A. Passenger B is unrelated to Driver. 

 

...

 

            Passenger A can purchase no policy that would provide uninsured-motorist coverage for injuries she suffered because of the negligence of Driver (as a result of the intra-family exclusion in the uninsured motorist context). As long as her spouse was driving the vehicle, any vehicle, she could not be covered by an uninsured-motorist policy, pursuant to R.C. 3937.18(K)(2). Passenger B, on the other hand, could have purchased a policy that would have provided such coverage. Two persons, both passengers, treated differently by law. (emphasis added)

 

...

 

            When we purchase insurance, we think we are protecting the people dearest to us. It is the very people former R.C. 3937.18(K)(2) excludes from coverage that insurance purchasers believe they are paying to protect. I would hold that there was no rational basis for the General Assembly’s exclusion of those people from uninsured/underinsured motorist coverage based upon their family relationship.”

 

            The majority did not embrace the rational basis test but instead resolved the constitutional issue on other grounds.

 

            However, an understanding of the interplay between the due process/equal protection clause of the Ohio Constitution is essential to a clear understanding of the defendability of provisions of an insurance contract and, on that basis, this case was hopefully instructive.

 

 

 

 

            In Miami, the Ohio Supreme Court handed down a decision dealing with a township’s possible legal liability based upon accumulated ice on the roadway. The case involved a wrongful death situation wherein the driver was attempting to negotiate a turn and plaintiff’s expert witness had opined that the roadway, because of ice, presented a hazardous condition and but for the failure of the township to address that hazardous condition, the turn could have been negotiated and, hence, the death avoided. 

 

            In paragraphs 18 and 19 of its opinion, the Ohio Supreme Court reviewed the applicable standard associated with potential liability of the township and stated the following:

 

            “Our analysis of whether a township is immune from liability pursuant to R.C. Chapter 2744 is familiar. First, we begin with the understanding that political subdivisions are not liable generally for injury or death to persons in connection with a township’s performance of a governmental or proprietary function. R.C. 2744.02(A)(1). Second, we consider whether an exception to that general rule of immunity applies. R.C. 2744.02(B). If an exception does apply, we must determine whether the township can still establish immunity by demonstrating another statutory defense. R.C. 2744.03. The case before us turns on the second prong of the analysis (whether an exception to the general rule applies).

 

            Pursuant to R.C. 2744.02(B)(3), an exception for immunity exists for injuries or death caused by a township’s ‘negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.’ As the trial court recognized, the critical inquiry here is whether the ice on Bear Creek Road was an ‘obstruction.’”

 

            The Court answered the foregoing inquiry in the negative and concluded in paragraph 30 of its opinion, the following: 

 

            “We conclude that for purposes of R.C. 2744.02(B)(3), an ‘obstruction’ must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so.”

 

            In any significant injury case on a highway, it is always imperative to apply and analyze any potential liability on the part of the municipality that maintains the road. This recent decision does set forth an appropriate standard of liability. 

 

            Chief Justice Moyer and Justice Pfeiffer dissented indicating that they would have concluded that ice on the roadway was an “obstruction” within the meaning of O.R.C. 2744.02(B)(3).

 

 

 

            In Sharp, the Eleventh District Court of Appeals heard a case involving a registered nurse at the Cleveland Clinic who came under suspicion for having consumed narcotic medications while at work. She was escorted to the emergency room for the purposes of drug testing and, although her drug tests were negative, she was subsequently terminated due to performance related issues. She filed a complaint against the Cleveland Clinic including unlawful confinement. 

 

            The Court stated the standard associated with false imprisonment in paragraphs 20 – 21 of its opinion wherein it stated the following:

 

            “False imprisonment occurs when a person confines another intentionally without privilege and against her consent within a limited area for any appreciable time, however short. (Citation omitted.) ‘The essence of the tort is depriving someone of his or her liberty without lawful justification.’ (Citation omitted.) 

 

            The focus of this matter is whether Sharp was ever confined by any Cleveland Clinic employees. ‘Confinement consists of a ‘total detention or restraint upon (the plaintiff’s) freedom of locomotion, imposed by force or threats.’” (Citation omitted.) Since a threat may constitute confinement, the lack of physical force does not defeat a false-imprisonment claim.”

 

            The Court basically concluded that there never was a confinement of the plaintiff due to the fact that she was technically free to leave even though she had been denied the right to drive her car. The Court found that such conduct did not rise to the level of false imprisonment and stated, in paragraph 26, the following:

 

            “The Cleveland Clinic had reason to believe that Sharp was diverting narcotics for her personal use and, as a result, was under the influence of narcotics during the relevant time period. Thus, the employees of the Cleveland Clinic had reasonable concerns regarding Sharp’s ability to safely operate a motor vehicle. Further, as was the case in Condo, Sharp was not prohibited from leaving the Cleveland Clinic; she was prohibited only from driving her car. As the trial court noted, Sharp could have called a taxi, taken public transportation, or called a friend for a ride.”

 

            Plaintiff Sharp also argued that she believed she was confined and, therefore, at the minimum, the summary judgment motion previously granted in favor of the Cleveland Clinic should be reversed. In paragraph 27 of its opinion, the Eleventh District Court of Appeals stated the following:

 

            “Sharp was under one-on-one observation with a supervisor from the nursing department while she was in the emergency room. ‘False imprisonment may not be predicated on a person’s unfounded belief that (she) was restrained.”

 

            Therefore, the central key in false imprisonment analysis is whether or not, in reality, the plaintiff was free to exit. It is not dispositive of whether the plaintiff him/herself believed they were restrained, but instead an analysis of the totality of the facts with emphasis upon the key issue of whether a person could have, if they elected to, leave the premises resolves the issue of whether a false imprisonment claim exists.