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. 

 

            Curtin & Associates is pleased to review significant jury trials recently completed by our office:

 

            Thompson v. Alexander, Summit County Court of Common Pleas Case No. CV-2007-04-3075 – Kristen M. Lewis recently received a defense verdict after a two day jury trial. In Thompson, the plaintiff claimed she suffered a disc herniation as a result of a low speed rear-end accident. The last demand in the case was approximately $8,000 and the last offer was $2,500.

 

            Daily v. American Family, Eighth District Court of Appeals Case No. CA-07-90220 – Kristen M. Lewis also successfully argued this case in which Joshua Daily alleged he qualified as an insured under his father’s American Family policy for purposes of underinsured coverage. However, American Family argued that due to the fact that Mr. Daily owned his own vehicle at the time of the accident, he was not an insured due to the “other owned auto exclusion” contained within the policy. The Appellate Court upheld the decision of the trial court granting American Family summary judgment wherein it held that Daily did not qualify as an insured under the policy.

 

 

 

 

            The Ohio Supreme Court recently handed down a case in the narrowing field of litigation associated with uninsured/underinsured motorist coverage. The court summarized the issue in review and its holding in paragraphs 1 and 2 of its opinion:

 

            “The issue presented in this case is whether the versions of R.C. 3937.18 and 3937.31 in effect on September 12, 2002, permitted modification of an automobile insurance policy’s uninsured- and underinsured-motorist (hereinafter “UM”) coverage at the beginning of the policy-renewal period within the two-year statutory guarantee period.

 

            Because the two-year guarantee period began after September 21, 2000, the effective date of 2000 Sub.S.B. No. 267, 148 Ohio Laws, Part V, 11,380 and because the modification occurred after October 31, 2001, the effective date of 2001 Am.Sub.S.B. No. 97, 149 Ohio Laws, Part I, 779, we hold that modification of UM coverage was a change permitted by law. Further, we find that the terms of the automobile insurance policy at issue were in fact modified within that period of time, and we affirm the judgment of the appellate court.”

 

            The salient facts were aptly summarized in paragraph 14 of the court’s opinion as follows:

 

            “The policy that the Advents purchased from Allstate had a two-year guarantee period from March 12, 2001, through March 11, 2003.   It is not disputed that the UM statute applicable to the Advent policy reflected the changes enacted by S.B. 267, effective September 21, 2000. As a result, if the insured consented, Allstate could incorporate changes permitted or required by the Revised Code into the existing policy at the beginning of any policy-renewal period within the two-year guarantee period.”

 

            Of significance is the methodology that was employed by the Court in concluding that the Advents had consented to changes in their policy. These particular points were summarized in paragraphs 17 and 18 of the court’s opinion wherein it was stated the following:

 

            “When the Advents renewed their policy for the final six-month policy period of the two-year guarantee period, the Renewal Auto Policy Declarations again informed the Advents that their chosen UM limits were less than their liability limits and advised them to contact their agent or Allstate if they wished to increase their UM limits. Again, the Advents maintained their insurance coverage with Allstate at the stated policy amounts.

 

            Admittedly, the notification of these changes in the Advents’ policies contained minimal explanation. However, we believe that the notices contained sufficient information to put the Advents on notice that the provisions regarding UM coverage in the policy had changed, that the UM coverage was as stated on the policy declarations page, and that action on their part was necessary to modify the stated UM limits. By failing to take any action to modify the stated UM coverage limits, the Advents consented to the changes in their policy and to the express coverage limits of $50,000 per person and $100,000 per accident.”

 

            Judge Pfeifer was the lone dissenter viewing that the actions were a unilateral reduction in coverage and a de facto cancellation of the policy.

 

 

 

 

            The Ohio Supreme Court heard a case wherein the issue for review was summarized, in paragraph 2, as follows:

 

            “Whether a trial court has the authority to tax costs under R.C. 5321.16 which were incurred at the appellate level.”

 

            For those insurance carriers writing policies on behalf of landlords, the case is very interesting inasmuch as it presents the first time the Ohio Supreme Court endorsed the award of attorneys’ fees at the appellate level for a prevailing tenant. In a nutshell, Mr. and Mrs. Klein had leased an apartment from Alvin L. Moutz but, after they left the premises, they filed an action in the Akron Municipal Court arguing that the landlord had failed to timely return their security deposit. The tenants were successful in their award of damages for the security deposit but the trial court denied their request for attorneys’ fees. The Ninth District Court of Appeals reversed that finding and upheld the granting of attorneys’ fees to the successful tenant, but denied the attorneys’ fees incurred at the appellate level. The Supreme Court reversed, thus creating an entitlement to attorney fees at the appellate level. The court explained its reasoning in paragraph 16 of its opinion wherein it stated the following:

 

            “We also agreed with the Christe concurrence that a tenant should be able to petition a court of appeals for R.C. 5321.16(C) attorney fees that have been incurred on appeal. (Citation omitted)   There is nothing in R.C. 5321.16(C) that limits assessment of costs, including reasonable attorney fees, to a trial court. Appellate courts have authority to determine costs, including reasonable attorney fees, under other circumstances. (Citations omitted) Therefore, we hold that a court of appeals also has the authority to resolve the issue of appellate attorney fees in order to bring the case to conclusion.

 

            The court went on to comment that the trial court is also vested with the authority to assess attorney fees for the trial court and appellate court level if it is more expedient to do so in that manner. 

 

 

 

 

            In Starks, Judge Painter reviewed an action commenced by a hotel patron against the hotel wherein the patron claimed damages after being charged for failing to check-out at the required time, sought $750,000 in damages and free lodging for life at the hotel. Judge Painter’s assessment of the quality of the case, in conjunction with the First District’s holding was summarized in paragraphs 1, 14, 15 and 16 of the opinion as follows:

 

            “Fortunately, this court has few frivolous cases. But we know one when we see one.

 

...

 

            Because Starks sued the wrong people, in the wrong place, alleging no wrong to right, there was no room in the judicial inn for Starks’s grievance. So we affirm the trial court’s judgment dismissing his complaint.

 

            This lawsuit and appeal are baseless. There was no reasonable cause for this appeal. And Starks has caused significant expense to the companies that had to respond.

 

            Though we fear it may be a vain act, we sua sponte grant judgment for each appellee for $1,250 under R.C. 2505.35.”

 

            This was a pro se plaintiff and the case, while humorous, is beneficial if it is necessary to seek fees incurred in defense of a frivolous lawsuit.