As a service to our clients, our office will electronically mail summaries of recent cases decided by Ohio courts that may impact our clients. If you have any questions regarding any of the reported cases, please feel free to contact one of our attorneys. 

            G. Michael Curtin of Curtin & Associates, LLP recently contributed an article for publication to the Ohio Association of Civil Trial Attorneys (OACTA) including a review of decisions published by the Ohio Supreme Court for the last quarter of 2007.

 

 

 

 

            In Carter, Judge Painter of the First District Court of Appeals handed down a decision predicated upon injury sustained by one bar patron when he was shot outside of the bar by another patron. The victim sued the bar and subsequently a declaratory action was commenced by the owner of the bar and its liability insurance carrier.

 

            The policy at issue included an “assault and/or battery” exclusion which included the following language reproduced in paragraphs 12 – 21 of the court’s opinion:

 

            “The policy included an “assault and/or battery” exclusion, which specifically excluded from coverage any injury arising from the following:

 

            1.        Assault and/or Battery committed by any insured, any employee of any insured, or any other person;

 

            2.         The failure to suppress or prevent Assault and/or Battery by any person in 1. above;

 

            3.         The selling, serving or furnishing of alcoholic beverages which results in an Assault and/or Battery.

 

            4.         The negligent:

 

            a.         Employment;

 

            b.         Investigation;

 

            c.         Supervision;

 

            d.         Reporting to the proper authorities, or failure to so report; or

 

            e.         Retention by a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraphs 1, 2 or 3 above.”

 

            The court concluded that the shooting clearly constituted an “assault and battery,” but the court continued its analysis by making a determination as to whether or not the derivative claims were covered. The court answered this question in the negative and so indicated in paragraphs 28 – 29 of its opinion wherein it was stated:

 

            “But the plain language of the exclusion precluded coverage for injury arising from an assault or battery (‘and/or’ should never be used), without regard to who committed the assault or battery, or to whether the insured’s service of alcohol contributed to the conduct. The exclusion also barred coverage for injuries sustained as a result of the insured’s failure to suppress or prevent an assault or battery by any person.

 

            Under the clear language of the policy’s assault-and-battery exclusion, Scottsdale was not liable for injuries arising from an assault or battery, or from the failure to suppress or prevent an assault or battery. Even though the complaint contained allegations of negligent hiring, failure to warn, and failure to provide adequate security, coverage under the policy was barred because the excluded act of assault and battery was the immediate cause of the injuries that gave rise to the allegations of negligence.”

 

            The court concluded its opinion by citing to the Eighth and Ninth District cases wherein similar conclusions had been reached with respect to application of an assault and battery exclusion to derivative claims for negligence on behalf of the bar owner.

 

 

 

 

            The First District Court of Appeals heard a case wherein the plaintiff had originally filed a complaint on October 4, 2005 but, in May of 2006, dismissed the case without prejudice pursuant to O.R.C.P. 41(A)(1)(a). Thereafter, plaintiff refiled the case in June of 2006 and, at the end of June, 2006, the trial court entered an order dismissing the original and refiled case with prejudice. 

 

            In paragraphs 6 and 7 of the opinion, Judge Painter wrote for the majority indicating that the original dismissal divested the trial court of jurisdiction thereby preventing any subsequent dismissal of the original case, by the trial court, with prejudice. In its opinion, the court indicated the following:

 

            “On May 4, 2006, Williams filed a Civ. R. 41(A)(1)(a) notice with the trial court, voluntarily dismissing his case. No counterclaims then existed. Because a Civ. R. 41(A)(1)(a) notice to dismiss is self-executing and does not require the court’s approval, the dismissal was effective when filed.

 

            One month later, on June 22, 2006, the trial court entered an order dismissing Williams’s original complaint with prejudice under Civ. R. 41(B)(1) for failure to prosecute. But the trial court’s dismissal was a legal nullity because the voluntary dismissal had already terminated the trial court’s jurisdiction to rule on the merits of the original case. The trial-court order dismissing the first action with prejudice following a voluntary dismissal constituted a legal nullity because the court had no jurisdiction to enter such an order.”

 

            Based upon the foregoing, the decision of the lower court was reversed.