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. 

 

 

            The Ohio Supreme Court decided a case, the issue of which was summarized in paragraph 1 of its opinion when the court stated the following:

 

            “This certified conflict from the Twelfth District Court of Appeals asks us to decide whether an insurance policy definition is ambiguous and thus properly construed against the insurer. The term ‘insured’ is defined as including ‘any other person occupying your covered auto who is not a named insured or insured family member for uninsured motorists coverage under another policy.’ We hold that this definition of ‘insured’ is not ambiguous.”

 

            The Ohio Supreme Court focused its analysis upon the issue of the intent of the parties and relied upon that principle in resolving the issue under review. In paragraphs 13-14 and 22, the court stated:

 

            “When confronted with an issue of contractual interpretation, the role of a court is to give effect to the intent of the parties to the agreement. We examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy.”

 

            When the Motorists policy in this case is viewed as a whole, it becomes clear that the intention of the parties was to narrowly define ‘insured’ for UM coverage.

 

...

 

            When interpreting a contract, we will presume that words are used for a specific purpose and will avoid interpretations that render portions meaningless or unnecessary. (Citations omitted.) Appellees’ interpretation would render meaningless portions of the contract and require an internally inconsistent interpretation. We decline to hold that the language is ambiguous.”

 

            Based upon the foregoing, the contractual language was upheld as well as the limiting language described above.

 

 

 

 

            The instances of pro se litigation continues to increase and, towards that end, the Court of Common Pleas for Clermont County issued an excellent analysis dealing with instances wherein the plaintiff can be liable, to a defendant, for frivolous conduct and also addressed the issue of the plaintiff’s pro se status. In McClure, supra, the court heard a dispute, the origin of which was an increase in a homeowner’s association fee that the plaintiff felt was unjust and multiple litigation ensued. 

 

            The court dealt with the issue and stated in paragraphs 7-8 of its opinion, the following:

 

            “Wilder’s motion for attorney fees is premised upon R.C. 2323.51 which provides that ‘at any time not more than 30 days after the entry of final judgment in civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney fees, and other reasonable expenses incurred in connection with the civil action or appeal.’ R.C. 2323.51(B)(1). Frivolous conduct is defined as conduct that:

 

            (1)        Serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including ... causing unnecessary delay or a needless increase in the cost of litigation;

 

            (2)        is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law;

 

            (3)        consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; or

 

            (4)        consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. R.C. 2323.51(A)(2)(a)(i), (ii), (iii), and (iv).

 

            Further, a motion for an award of attorney fees under R.C. 2323.51 must be decided only upon the evidence presented at the hearing and not the evidence attached to the motion. (Citations omitted.) However, the statute does not obligate the parties to present into evidence documents and proceedings already in the record.”

 

            The 30 day requirement is absolute and, therefore, it is necessary to promptly file the motion or the motion is time barred. The plaintiffs were not represented by an attorney and argued, to the trial court, that the fact they did not have an attorney should serve as an excuse or, at the minimum, should prevent application of O.R.C. 2323.51 to individuals who are non-lawyers. The court rejected this particular argument and stated, in paragraph 14 of its opinion, the following:

 

            “The plaintiffs argue that they are not attorneys and that no attorney would take their case; therefore, as pro se plaintiffs, their actions should be construed liberally. However, ‘pro se litigants are bound by the same rules and procedures as litigants with retained counsel.’ (Citations omitted.) ‘They are not to be accorded greater rights and are bound to accept the results of their own mistakes and errors, including those related to correct legal procedure.’ (Citations omitted.) Therefore, although the result might seem harsh, the court finds that the plaintiffs, as unrepresented parties, are bound by the same rules and procedures as litigants who are represented by counsel. The court notes, however, that it has liberally construed the pleadings and motions filed by the plaintiffs, as well as any responses that they have filed. With that being said, the plaintiffs must accept the consequences of any errors and mistakes that they have made during the course of these proceedings.” (Emphasis added.)

 

            The court concluded that the statutory framework had been violated and found that attorney fees should be awarded and the amount would be awarded at a hearing to be scheduled on a later date.

 

 

 

 

            The McClure v. Fischer Attached Homes decision discussed above, analyzed the frivolous conduct statute. The Ohio Supreme Court handed down a decision based upon a separate statute which is known as the Vexatious Litigator Statute and also is worthy of note in order to permit a defendant and/or his liability insurance carrier to protect themselves in the event an individual used the court system for the purposes of harassment as opposed to dispute resolution. Although the case originated based upon jurisdictional issues that are beyond the scope of the Newsletter, the case is illuminating in light of the fact that it does review the standard and effect of the Vexatious Litigator Statute. The Court summarized and addressed, in paragraphs 17-18 of its opinion, the following:

 

            “A ‘vexatious litigator’ is ‘any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions.’ (Citation omitted.)

 

            The common pleas court found Berman to be a vexatious litigator and entered an order pursuant to R.C. 2323.52(D)(1) prohibiting him from instituting or continuing legal proceedings in certain courts without first obtaining leave of court to proceed. As a vexatious litigator subject to an R.C. 2323.52(D)(1) order, Berman could ‘not institute legal proceedings in a court of appeals, continue any legal proceedings that (he) had instituted in a court of appeals prior to entry of the order, or make any application, other than the application for leave to proceed allowed by division (F)(2) of this section, in any legal proceedings instituted by the vexatious litigator or another person in a court of appeals without first obtaining leave of the court of appeals to proceed pursuant to division (F)(2).’”

 

            The foregoing statutory remedies are crucial in avoiding the abuse that sometimes can befall Ohio courts and it is imperative to note that one of the most powerful tools against an individual utilized in the Ohio courts in an inappropriate matter is for judicial application of the “vexatious litigator” standard which basically prevents further action without leave of court.