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

 

            Dudo v. Kolasa, Summit County Court of Common Pleas Case No. CV 2007 07 4743 – Kimberlee J. Kmetz recently tried a case with an outstanding result especially in light of a highly unfavorable ruling received from the trial court on the first day of trial. By way of history, Dr. Leizman, plaintiff’s expert, had completed a medical records review and produced a report setting forth his opinions and findings but he had never formally examined the plaintiff. Dr. James Brodell had completed a defense medical records review and issued a report setting forth his findings. Ms. Kmetz deposed Dr. Brodell and several days prior to the trial, she appeared for the trial deposition of Dr. Leizman. 

 

            At the trial deposition of Dr. Leizman, Ms. Kmetz was handed a report prepared on that day by Dr. Leizman which included two important points. First, it reflected the fact that Dr. Leizman had examined the plaintiff several weeks ago, although this information had never been disclosed to Ms. Kmetz. Second, Dr. Leizman opined for the first time that he believed the plaintiff had a herniated disc as a result of the accident.

 

            Ms. Kmetz timely filed a motion in limine with the trial court arguing that she was completely surprised by this testimony and, at the very minimum, the herniated disc testimony should be removed as a complete ambushing of defense counsel. The trial court overruled all of the motion in limine and permitted all of the evidence to go to the jury. 

 

            The plaintiff had approximately $12,000 of medical bills and an offer of $17,000 was extended. The demand was $650,000. The jury returned a verdict in the amount of $5,000.

 

 

 

 

            The Ohio Supreme Court dealt with a certified question from the Fifth District Court of Appeals which was summarized as follows in paragraph 2 of the opinion:

 

            “Whether spouses can recover the income lost due to one spouse caring for another or whether they may only recover the cost to hire outside home health care.”

 

            The appeal was derivative of an automobile accident wherein Nancy Hutchings was severely injured. Her husband, a stock broker, was her exclusive care giver since her injury and he spent the first six weeks after the accident at home caring for his wife and he continued to attend medical appointments with his wife and, as a consequence was taking off time from work to care for his wife. 

 

            An Economist testified that Mr. Hutchings had, and could expect in the future, to have a diminution in income between 1.7 and 2.2 million dollars. Testimony was also presented as it pertains to the economic value of the household duties previously done by Nancy Hutchings, but no evidence was presented as to the cost to hire professional care for the injured wife. 

 

            The trial court did not permit a jury instruction that the plaintiff could recover for the husband’s loss of income based upon the fact that the trial court concluded Ohio law did not allow that as an element of damages for an uninjured spouse caring for an injured spouse.

 

            The Ohio Supreme Court began its analysis by an evaluation of what is or is not compensable within the framework of a loss of consortium claim. In particular, the question the court needed to answer was whether or not lost income or diminution in income fit within a claim of consortium. 

 

            The Court answered this question in the negative in paragraph 16 of its opinion wherein it stated the following:

 

            “If there is to be recovery of lost income, it cannot be a part of the uninjured spouse’s claim for loss of consortium. A claim for loss of consortium is not based upon economic damages. ‘Consortium consists of society, services, sexual relations and conjugal affection which includes companionship, comfort, love and solace.’ (Citation omitted) The uninjured spouse’s loss-of-consortium claim is based upon the loss of the services provided by the injured spouse before his or her injury. The uninjured spouse’s income from his own employment is not a service that the injured spouse once provided. Thus, any recovery of damages for care provided to an injured spouse must be part of the injured spouse’s claim.”

 

            The Court reviewed that the majority of courts do not allow recovery by an injured party for the income lost when the uninjured spouse misses work to aid the injured spouse. In paragraph 39 and 42, the Court addressed the philosophical underpinnings of the loss of consortium claim and stated the following:

 

            “We find the majority approach to be the consistent and practical way to resolve the issue. The benefit of spousal care is measured in its emotional value, not its economic value. The emotional value of the care cannot be quantified. The only practical way for courts to value a family member’s care is to determine the economic value as if the care had been provided by a nonfamily member.

 

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            A spouse’s choice to take a break from employment to provide care is only indirectly attributable to a tortfeasor’s actions. That choice is caused by a sense of obligation rather than by the accident. The benefit of spousal care inures to both the injured and the uninjured spouse. The majority rule for compensation of spousal care, which allows recovery for the market value of the care provided, ensures that the benefit of that care does not inure to the tortfeasor.”

 

            The Court reaffirmed the foregoing and stated in paragraph 3 of the opinion, its holding:

 

            “We hold that part of the injured spouse’s damage against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders.”

 

            The important issue is that for the purposes of properly valuing a claim, the fair market value of the home health care is part of the injured spouse’s claim and not part of the consortium claim (of the uninjured spouse). Inasmuch as the Hutchings had not presented any evidence, at trial, of the economic value of the care provided, they had no recovery and the case was not remanded to the trial court for a hearing on that issue.

 

 

 

 

            In Maynard, the Ohio Supreme Court addressed the issue of post-judgment interest. In paragraphs 1 and 2 of its syllabus, the Court stated as follows:

 

“1.       The amendment to R.C.1343.03(A), pursuant to 2004 Sub.H.B. No. 212 (‘H.B. 212’), 150 Ohio Laws, Part III, 3417 (effective June 2, 2004), applies to cases in which the trial court has entered final judgment prior to June 2, 2004, but the judgment is not yet paid in full and the case was pending on appeal as of that date.

 

2.         In calculating postjudgment interest for a case that is pending as of June 2, 2004, the fixed rate in effect prior to June 2, 2004, applies through June 1, 2004, and is to be used to calculate the amount of interest accrued through June 1, 2004; the annually determined rate then applies and is used to calculate the amount of interest to be paid from June 2, 2004, forward.”

 

 

 

 

            The Eleventh District Court of Appeals dealt with a case wherein the trial court had granted summary judgment in favor of the insurer as it pertains to a bad faith claim. The Court summarized its holding as well as application of material facts in its headnotes and stated the following:

 

            “1.       Insurer that issued homeowner’s policy to insured did not waive, and was not estopped from asserting, one-year contractual period of limitations for insured to file a lawsuit alleging that insurer breached contract to provide coverage for jewelry stolen from insured’s home, even though insurer investigated claim and issued several checks to pay claim with the knowledge that the contractual period for a suit had expired; limitation period for filing an action did not apply to investigation or payment of claim, and insured had signed nonwaiver agreement in which insurer expressed that in investigating her claim it did not waive any terms and conditions of the insurance contract.

 

            2.         Insured failed to complete an examination under oath (EUO) as required by homeowner’s insurance policy, and thus was precluded from bringing action for breach of contract against insurer for its failure to pay on her claim arising from jewelry stolen from her home; although insured attended EUO and supplied background information regarding her claim, she terminated the EUO unilaterally before insurer could obtain any substantive information crucial to her recovery, including whether she reported the jewelry stolen when filing a police report.

 

            3.         The failure of an insured to submit to an examination under oath (EUO) in violation of an insurance policy condition requires a dismissal of an insured’s lawsuit against an insurer.

 

            4.         Insurer’s denial of insured’s claim for coverage of stolen jewelry under homeowner’s policy was reasonably justified, so as to preclude insured’s bad-faith claim against insurer; even though insured waited until contractual one-year period of limitations for filing a court action had expired before filing claim, insurer investigated claim and issued several checks on claim before stopping payment after learning that insured had filed police report relating to loss outside the period she was a named insured on policy, and even then continued to investigate claim.

 

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            7.         To grant a motion for summary judgment brought by an insurer on the issue of whether it lacked good faith in the satisfaction of an insured’s claim, a court must find after viewing the evidence in a light most favorable to the insured, that the claim was fairly debatable and the refusal was premised on either the status of the law at the time of the denial or the facts that gave rise to the claim.

 

            8.         To withstand a motion for summary judgment in a bad faith claim, an insured must oppose such a motion with evidence which tends to show that the insurer had no reasonable justification for refusing the claim, and the insurer either had actual knowledge of that fact or intentionally failed to determine whether there was any reasonable justification for refusing the claim.”

 

            In paragraph 47 of the opinion, the Court summarized its holding and stated:

 

            “In summary, the trial court properly granted summary judgment on Vogias’s breach-of-contract claim in favor of Ohio Farmers because her court action was filed beyond the contractual one-year period of limitations. The court also properly granted summary judgment on her bad-faith claim because Ohio Farmers could not have acted in bad faith in willingly investigating her claim despite the fact that the contractual period for a legal action had expired.”

 

            Based upon the foregoing, the granting of summary judgment was affirmed by the appellate court.