ews In this issue: Cleveland Academy of Trial Attorneys Winter

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1 ews CT N Clevelnd cdemy Tril ttorneys w w w.c l eve l n d t r i l t to r n ey s.o r g In this issue: Life fter Wuerth Wht s Relly Chnged In World Respdet Superior Libility? pg 6 Txti Persl Injury Settlements: n Introducti N-Tx Lwyers by N-Tx Lwyer pg 12 Insurnce gent nd gency Libility in Ohio When There is No Coverge For Loss Due to Negligence or Misrepresentti by gent pg 15 King v. Prodic Helth System, Inc., pg 20 No Csent Needed: The 5 Step Checklist Interviewing Defendnt s Former Employees pg 28 Current Trends nd Ides bout Focus Groups or, Why Should I Do Them nywy? pg 31 Winter

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3 Winter ctents 2 President s ssge by John R. Lir, II 4 Editor s Notes by Kthleen J. St. John 6 Life fter Wuerth Wht s Relly Chnged In World Respdet Superior Libility? by Brend M. Johns Txti Persl Injury Settlements: n Introducti N-Tx 12 Lwyers by N-Tx Lwyer by Cthleen Bolek Insurnce gent nd gency Libility in Ohio When There is No 15 Coverge For Loss Due to Negligence or Misrepresentti by gent by Nicole Greer 20 King v. Prodic Helth System, Inc. by Jthn D. ster nnul CT Bnquet: Photo Mtge Current Trends nd Ides bout Focus Groups or, Why Should I Do 31 Them nywy? by Pul J. Scoptur Verdict Spotlight by Christopher llino 44 Verdicts & Settlements Beyd Prctice: CT mrs in Community by Susn Petersen Pointers from Bench: n Interview With Judge Nncy R. McDnell by Christopher llino No Csent Needed: The 5 Step Checklist Interviewing Defendnt s Former Employees by Willim B. Edie Persl Jurisdicti Over Foreign Defendnt: Brown, Nicstro nd Internet by Kthleen J. St. John Stff ttorney s Perspective: Top Ten Dos nd D ts : n Interview With lejndro Cortes by Christopher llino dvertisers in this issue dvocte Films...27 Clevelnd Groove, LLC...5 Clevelnder Br & Grill...Inside Bck Copy King, Inc...5 Egle Communictis...22 diti, Inc dml Csulting...Bck Cover Ntil Settlement Csultnts...Inside Bck Recovery Optis Mngement, Inc...30 Structured Growth Strtegies...Inside Frt Tckl & ssocites...22 Video Discovery, Inc...3 John R. Lir II President Smuel V. Butcher Vice President George E. Loucs Secretry Ellen Hobbs Hirshmn Tresurer Directors Cthleen Bolek Stephen S. Crndll Rhd Bker Devec Grnt. Goodmn Dvid R. Grnt Jy Kelley Christopher M. llino Jthn D. ster Christin R. Ptno Susn E. Petersen Sturt E. Scott Kthleen J. St. John ndrew J. Thomps Editor Kthleen J. St. John Editoril Committee Smuel V. Butcher Christopher M. llino Susn E. Petersen ndrew J. Thomps Jthn D. ster Willim B. Edie Opinis expressed in rticles herein re those uthors nd re necessrily shred by CT. Cover photo tken by Kthleen J. St. John CT NEWS Winter

4 Pst Presidents: Brin Eisen W. Crig Bshein Stephen T. Keefe, Jr. Mrk E. Brbour Dn Tylor-Kolis Romney B. Cullers Dennis R. Lndsdowne Michel F. Becker Kenneth J. Kn Dvid M. Pris Frnk G. Bolmeyer Rort F. Lint, Jr. Jen M. McQuilln Richrd C. lkire Willim Hwl Dvid W. Goldense Rort E. Mtyjsik Lurie F. Strr Willim M. Greene Jmes. Lowe Pul M. Kufmn John V. Schr, Jr. Scott E. Stewrt Joseph L. Coticchi Sheld L. Brvermn Willim J. Novk Peter H. Weinrger lfred J. Tolro Fred Wendel III John V. Dnelly Michel R. Ku Frnk K. Isc Seymour Gross Lwrence E. Stewrt Milt Dunn F. M. picell Fred Weismn Frnklin. Polk lrt J. Morhrd George Lowy Eugene P. Krent Wlter L. Greene T.D. McDld Rlph. Miller Nthn D. Rollins Hrold Siemn Michel T. Gvin Richrd M. Cerrezin Joseph O. Coy Rort R. Soltis Jmes J. Cwy John R. Lir, II is counsel t Thrsher, Dinsmore & Doln. He cn reched t or President s ssge t our nnul meeting nd bnquet this pst June, I reported to memrs nd guests in ttendnce tht our orgnizti is fcing chllenge like never e. In dditi to our going politicl struggle with interests promoted by Chmr Commerce ginst csumer rights t locl, stte, nd ntil level, ecomic difficulties tht we ll fce hve ced mny our memrs to choose tween pressil ssocitis. Despite CT s ing most effective t $ nnul dues, I hve ten herd from lg stnding memrs tht, to cut s, y hve csolidted ir br memrships. CT ws mg those y did renew. For nor memr it went deeper. The relevnce our orgnizti ws clled into questi in light ctive work OJ does t stte level nd in Ohio Legislture. While I cvinced him to renew, this collegue ours ctully questied why memrship in both orgniztis ws necessry. This cused me to tke step bck nd re-evlute just who we re nd wht we do. In nutshell, single most importnt functi Clevelnd cdemy Tril ttorneys is networking t locl level. Through our Newsletter ( CT News), line List Serve, nd our regulr CLE progrmming nd socil functis, we provide our memrship vlue needs tril lwyer right here in greter Clevelnd regi. No or orgnizti fers mthly lunches where memrs cn enjoy cmrderie collegues, locl judiciry nd ir stff ttorneys while lerning new developments in lw nd erning CLE credit. The bi-nnul CT Newsletter regulrly covers importnt issues tht we nd our clients fce every dy with reference nd uthority to just stte wide cse lw, lso tht within our own Court ppels. This messge my hve en emphsized lte, so, s I vowed to in June, it is gol my presidency to mke sure tht it is. The me this term is tht good lwyers mke living, gret lwyers mke difference! The ficers nd bord directors Clevelnd cdemy re dedicted to mking difference with this gret orgnizti nd mximizing vlue memrship. My pln ws to crete spirit prticipti with bord nd our memrship by dividing our core functis into three stnding committees: mrship, Publictis/Technology, nd Progrms. We hve de tht. Ech committee is led by n ficer, nd is stffed with directors nd memrs t lrge. I m plesed to report tht cdemy ledership hs risen to my chllenge nd strted producing results. Tresurer Ellen Hirshmn jumped right into mrship Committee nd updted our memrship roster, took ctrol ccounts receivble (unpid dues), nd modernized bookkeeping. We hve removed from roster those memrs who hve eir pssed wy or moved nd no lger wish to prticipte, collected pst dues, nd returned our revenues to productive level. Vice President Sm Butcher nd Publictis/ Technology Committee published this current issue CT News nd re prepring 2 CT NEWS Winter

5 Spring 2012 editi. They re lso t work new webpge to improve our -line services. Secretry George Loucs nd Progrms Committee hve lredy produced first two mthly CLE lunches: in Septemr where Pthologist Willim Bligh-Glover, M.D. from CWRU led riveting presentti Getting Most out Forensic Expert, nd in Novemr where distinguished pnel csisting Jmes J. McMgle, Peggy Foley-Jes, nd Ptrick Murphy discussed diti. Look wrd to mthly seminrs through rest yer nd into 2012 to include: Ethics nd Substnce buse with Pul Cmi nd Rick lkire Decemr 14, 2011; Focus Groups with Rick Topper Mrch 14, 2012; nd presentti by Ohio Supreme Court Justice Yvette McGee Brown pril 11, We lso pln return our hugely successful Litigti Institute in Februry No e ever hve to questi relevnce this gret orgnizti. nd I submit to tht we re more relevnt now thn ever. With ll or chllenges tht exist outside our windows, we still mintin cstnt vigil protecting fundmentl interests justice our clients nd our fmilies. I ssure tht CT remins strg, vibrnt, nd lwys serving to mke difference! John R. Lir II President Litigti Support Tem VIDEO DISCOVERY, INC. Video Depositis Tril Director Support Digitl Photogrphy Dy-In--Life Docs. Settlement Videos High-Res Plybcks Exhibit Bords Text-to-Video Sync Interctive Timelines 2D & 3D nimti dicl Illustrti Focus Group Presentti CEDR ROD, CLEVELND, OH p f CT NEWS Winter

6 Kthleen J. St. John is principl t Nurenrg, Pris, Heller & McCrthy Co., LP. She cn reched t or Editor s Notes by Kthleen J. St. John This, yer we hve new tem working CT News. s CT president, John R. Lir, II, indicted, we re now divided into committees, with n ficer leding ech. Our Publictis & Technology committee is led by Vice President, Sm Butcher, nd includes Chris llino, Susn Peters, ndrew Thomps, Jthn ster, Will Edie, nd me. We hope find this issue useful, nd, s lwys, we welcome ny comments, critiques, or suggestis hve future issues. 1. The CT website Our committee hs en chrged with updting CT website, process tht is in works. nwhile, we encourge to use CT website s it currently exists, t clevelndtrilttorneys.org/. There ll find pst issues CT News, legl nd medicl links (including depositi bnk), events nd memrship inmti, nd ccess to CT List Serve. To ccess website, ll need user nme nd pssword; if know user nme pssword, system cn emil it to. If still hve trouble, ctct Frnk Strck, t Frnk provides this service grtis (until we hve new system nd provider in plce), so plese ptient nd he will respd t his erliest cvenience. 2. Chnges to ctct inmti. CT Tresurer, Ellen Hirshmn, encourges memrs who hve chnges to ir prile (i.e., firm nme, emil ddress, firm ddress, phe numr, etc.), to provide those chnges promptly to Frnk Strck or her. Ellen cn reched t This is prticulrly importnt when we mil newsletter, s we received quite few copies bck lst yer from memrs whose ctct inmti ws outdted. 3. New memrs. CT s ficers nd directors lso encourge to invite new memrs to join our orgnizti. ll ttorneys in our regi who focus ir prctices primrily plintiff s injury lw re welcome, we prticulrly encourge nger ttorneys to join nd crry CT trditi. memrship pplicti cn found t lst pge this newsletter. 4. dvertisers. s lwys, we re grteful to our dvertisers ir help in mking this newsletter possible. Plese rememr to support m, nd let m know sw ir d in CT News. 5. Court decisis to wtch. mg cses pending e Ohio Supreme Court interest to our memrship, we e following: Drrell Smps v. CMH, S.Ct. No This is discretiry ppel from n en bnc decisi Eighth District Court ppels. 1 The issue is wher R.C (B) cretes n excepti to politicl subdivisi 4 CT NEWS Winter

7 Rur v. Kiser, S.Ct. No This is n ppel from decisi Twelfth District Court ppels in wrgful deth/medicl mlprctice cse. The Court ppels held tht Ohio s current sttute repose medicl mlprctice clims ctined in R.C (C) is uncstitutil s pplied to plintiff whose clim ws brred fter it hd lredy vested, e plintiff or decedent knew or resbly could hve known bout clim. 3 s writing this e, this ppel hs yet en briefed, so it will while e decisi is thcoming. End Notes Smps v. Cuyhog tropolitn Housing uthority, 188 Ohio pp.3d 250, 2010 Ohio 3415, discretiry ppel llowed by Smps v. Cuyhog tro. Hous. uth., 2010 Ohio 6008 (Dec. 15, 2010). See, e.g., Vch v. North Ridgeville, 9th Dist. No. 10C009750, 2011 Ohio 2446, discretiry ppel llowed by Vch v. North Ridgeville, 2011 Ohio 5129 (Oct. 5, 2011); nd Lg v. Villge Hnging Rock, 4th Dist. No. 09C30, 2011 Ohio 5137, 34 (Sept. 28, 2011) (discussing cflict uthority in Ohio cses s to wher politicl subdivisi my held lible n intentil tort). Rur v. Kiser, 12th Dist. No. C , 2011 Ohio 1723, 37, discretiry ppel llowed by Rur v. Kiser, 2011 Ohio 4751 (Sept. 21, 2011). Your Source Complete Digitl & Commercil Offset Hedshots Video Depositis Corporte Videos { chnge wy crete* } Clevelnd Groove is ctemporry medi producti compny bsed in Clevelnd, OH. Printing Services Digitl Blck & White & Color Printing Commercil Offset Printing Services Binding & Finishing Grphic Design Perslized Vrible Printing Scn Hrd Copy to CD Litigti Services Pick-Up nd Delivery clevelndgroove.com fcebook.com/clevelndgroove C h e s t e r ve n u e C l e ve l n d, O h i o P h o n e : F x : w w w. c o py - k i n g. c o m s l e c o py - k i n g. c o m Certified s CSB nd FBE with City Clevelnd nd SBE with Cuyhog County CT NEWS Winter Committed to Customers Committed to Qulity Committed to Service immunity comm lw intentil tort clims lleged by public employee. The plintiff previled in Eighth District; nd Courts ppels in Fourth nd Ninth Districts hve lso ruled plintiffs this issue.2 Orl rgument ws held in Supreme Court Septemr 20, 2011, so decisi cn expected in reltively ner future. 5

8 Brend M. Johns is n ttorney with Nurenrg, Pris, Heller & McCrthy Co., LP. She cn reched t or Life fter Wuerth Wht s Relly Chnged In World Respdet Superior Libility? by Brend M. Johns In 2009, United Sttes Court ppels Sixth Circuit certified to Ohio Supreme Court wht ppered to firly limited questi stte lw nmely, wher legl mlprctice clim could mintined directly ginst lw firm when relevnt principls nd employees hd eir en dismissed from lwsuit or never sued in first instnce. The respse to this questi, set th in Court s opini in Ntil Uni Fire Insurnce Co. Pittsburgh, P v. Wuerth, 1 ws twold. First, Court held tht lw firm cn held directly lible legl mlprctice simple res tht ly individuls my prctice lw, nd thus ly individuls my directly commit legl mlprctice. 2 This holding is csistent with, nd indeed drwn from, positi Court hs tken with respect to medicl mlprctice. 3 The secd phse Court s respse, however, hs en cstrued by some s rdicl deprture from trditil principles respdet superior libility, under which it hs lwys en understood tht plintiff my sue employer or employee, nd need join employee in n cti ginst employer. This rticle is n ttempt to determine wher, in fct, tht is cse, nd more importntly, to determine wher Supreme Court nd or Ohio courts hve treted Wuerth s deprture from se trditil principles. Wht Ws The Holding In Wuerth nywy? Hving determined tht lw firm cn held directly lible legl mlprctice, Court in Wuerth went to determine wher lw firm could held lible mlprctice when relevnt principls hd eir en dismissed from cti or hd en sued in first instnce, nd nswer hs en source cfusi ever since. The simple nswer, presented in n opini uthored by Justice O Dnell with which four justices ccurred, ws sttement tht, under principles respdet superior, n employer my held lible ly when n employee or gent my held directly lible, nd tht, in bsence libility prt firm principl or employee, lw firm my held lible legl mlprctice. 4 This sttement, in nd itself, is problemtic unless nd until it is pplied to fcts presented in underlying federl cti. In tht cse, s ed by Ohio Supreme Court, summry judgment hd en grnted in fvor ttorney respsible lleged legl mlprctice grounds tht sttute limittis hd elpsed s to ny clims ginst him. 5 Thus, Wuerth hs en grsped up by defendnt employers s globlizble prouncement tht 6 CT NEWS Winter

9 no employer ny sort my subject to respdet superior libility if sttute limittis hs expired with respect to direct clim ginst employee or employees up whose negligence employer s libility is premised. There re very good rguments bsed opinis justices mselves nd specific fcts underlying federl cse tht Wuerth cn red so brodly. For e, n rgument cn mde, bsed fcts set th in district court opini grnting summry judgment in fvor lw firm nd its (by n mer) ttorney, tht sttute limittis legl mlprctice cti hd run with respect to both firm nd ttorney whose cduct ws t issue when initil complint hd en filed. 6 Perhps more importntly, however, mjority justices who prticipted in ddressing questis posed in Wuerth stressed nrrowness Court s holding. In ccurring opini joined by Justices Pfeifer, O Cnor nd Lnzinger, lg with Judge Mry DeGenro Seventh ppellte District who ws sitting by ssignment Justice Lundrg Strtt, lte Chief Justice Thoms J. Moyer wrote to emphsize tht tody we nswer ly very nrrow certified questi e us. 7 In so doing, Chief Justice Moyer stressed tht issue ing ddressed ws limited to libility issues involving lw firms, nd even n ly to nrrow questi lw firm s direct libility when premised lleged negligence single principl in firm. mg or things, Chief Justice Moyer, who hd ccurred in Court s opini s well, ed tht [w]e do ddress tody complex ttorney-client reltiship tht rises when client employs severl different or successive ttorneys in sme firm, nor do we cfrt interply those reltiships nd tolling events listed in R.C (). Similrly, our opini does rech questis duties nd libilities lw firm tht my rise from generl enggement greement with client. Those questis re yd scope questi stte lw certified by Sixth Circuit Court ppels. 8 fter distinguishing numr opinis dvnced in fvor propositi tht lw firms my held directly lible mlprctice under Ohio lw, Chief Justice Moyer gin stressed nrrowness Court s holding: I stress nrrowness our holding tody. This opini understood to inhibit lwfirm libility cts like those lleged by petitier. Rr, lw firm my held vicriously lible mlprctice s discussed in mjority opini. Furr, our holding tody does eclose possibility tht lw firm my directly lible cuse cti or thn mlprctice. Yet limited record nd nture nswering certified questi do permit us to entertin such n inquiry in this cse. 9 This ccurring opini, in which mjority pnel joined, is very strg indictor tht Court did lieve it ws mking sweeping prouncement bout nture nd scope potentil lw firm libility, let le imposing sweeping (nd revolutiry) chnge in respdet superior libility in generl. Neverless, defendnts hve rgued tht Wuerth did, in fct, rdiclly chnge respdet superior libility in Ohio. So fr, however, Ohio courts including Ohio Supreme Court pper to disinclined to give Wuerth brod reding tht some defendnts hve urged. Lower Courts Hve pplied Wuerth Nrrowly To dte, Ohio courts ppels hve hd severl opportunities to ddress scope nd rmifictis Wuerth, nd so fr y hve limited its scope to cses in which vicrious libility t issue rises from clims mlprctice prt doctors or lwyers. 10 Where negligence involved is tht n employee who does fll within eir se pressis, courts hve declined to hold tht individul employees must lso sued in order respdet superior libility to pply. In Tylor v. Belmt Community Hospitl, 11 Seventh District declined to extend Wuerth to medicl negligence cse involving negligence prt doctor nd nurses employed by hospitl. In tht cse, hospitl ws sued within sttute limittis negligence its employee doctor nd two employee nurses, se employees hd en nmed s defendnts. 12 The tril court grnted summry judgment in fvor hospitl bsed Wuerth. 13 The Seventh District reversed, holding tht Wuerth extended to cses in which employees hospitl hd en sued nd sttute limittis hd run s to clims ginst those employees. 14 In so holding, Seventh District repetedly ed tht mjority ccurrence in Wuerth stressed its nrrow pplicti point mde even more slient by fct tht Judge Mry DeGenro, who st by ssignment Wuerth pnel, ws lso memr pnel tht decided Tylor. Indeed, Judge DeGenro wrote her own ccurrence in Tylor, in which she stressed tht Wuerth hd no ring issues in tht ppel, nd went so CT NEWS Winter

10 fr s to sy tht Wuerth does even tngentilly touch issue sttute limittis. 15 The Secd District lso hs limited Wuerth s scope, holding tht it pplies ly to cses involving respdet superior libility cts trditil legl or medicl mlprctice, nd does extend to medicl clims involving negligence prt n-physicins. Stnley v. Community Hospitl, 16 decided erlier this yer, involved clims negligence prt nurses employed by defendnt hospitl. While complint included Jne nd John Doe nurses s defendnts, no individul hospitl employee ws ever specificlly nmed s defendnt. 17 Bsed this, tril court grnted summry judgment in fvor hospitl, which Secd District reversed. 18 On ppel, plintiff rgued tht Wuerth did pply cuse employees t issue were nurses, rr thn physicins who tend to hve more independent reltiship with hospitls, nd lso ed tht cti ginst hospitl hd en commenced within pplicble sttute limittis. 19 The hospitl rgued orwise, sserting tht Wuerth extended to clims involving nurses s well s physicins, Secd District rejected this interpretti s ing too expnsive, two relted grounds. First, Secd District greed with plintiff s observti tht physicins commly hve more independent reltiship with hospitls thn nurses do: Specificlly, physicins nd ttorneys re pressils who re generlly hired to perm services ir clientele s independent ctrctors. Physicins nd ttorneys re typiclly csidered employees t ir respective businesses. The lw prtner nd ttorney in Wuerth ws prt owner his firm nd worked s n independent ctrctor his clients. Physicins, s well, re ten employees hospitls where y hve privileges. 20 Secd, court ed tht mlprctice, which ws type miscduct t issue in Wuerth, trditilly hs en limited to pressil miscduct prt doctors nd lwyers, nd does necessrily encompss negligence prt ors, even in medicl ctext. In support this propositi, court lso ed tht Ohio Revised Code mkes distinctis tween mlprctice nd medicl clims purposes pplicble sttute limittis: Specificlly, R.C () sttes tht n cti mlprctice or thn medicl *** clim *** shll commenced within e yer fter cuse cti ccrued. R.C () sttes tht n cti up medicl *** clim shll commenced within e yer fter cuse cti ccrued. 21 The hospitl rgued tht distincti mde no difference in cse t br cuse R.C () ctrolled; however, Secd District rejected this ctenti bsed Ohio Supreme Court precedent holding tht negligence nurses does cstitute mlprctice purposes R.C (): While sttute limittis mlprctice nd medicl clims re both e yer, ly physicins nd ttorneys cn commit mlprctice under R.C (). The Ohio Supreme Court hs held tht negligence nurses does fll under definiti mlprctice s discussed in R.C (). Rr, lleged negligence nurse employee flls under definiti medicl clim in R.C (). The holding in Wuerth must given nrrow pplicti. Nowhere in Wuerth decisi does Supreme Court cclude, expressly or orwise, tht medicl clim brought ginst hospitl lleged negligence e its nurse employees cstitutes clim mlprctice under R.C On Septemr 23, 2011, Secd District issued nor opini involving Wuerth this time ddressing hospitl libility negligence MRI technicins who hd en nmed s defendnts in cti ginst hospitl nd in so doing elborted prcticl nd public policy csidertis inming its nlysis. In Cope v. Mimi Vlley Hospitl, 23 Secd District reiterted its positi tht medicl mlprctice nd legl mlprctice stnd different footing thn ordinry negligence, even when negligence occurs in medicl setting, nd reprised sttutory nd comm lw nlysis set th in Stnley. 24 The court emphsized tht public policy csidertis support nrrow reding Wuerth, even in medicl ctext: Ultimtely, this court s decisi to give Wuerth nrrow pplicti is supported by public policy csidertis found t hert respdet superior doctrine, which supports vicrious libility. hospitl employs wide rnge people who provide vriety medicl services to ptients. The hospitl is in exclusive ctrol hiring criteri, trining, nd routine permnce evluti nd review. hospitl respsible negligence its employees who perm medicl services nd ct in course nd scope ir 8 CT NEWS Winter

11 employment. To llow hospitl to shielded from rule respdet superior libility due to court s lirl pplicti distincti crved out by Wuerth would effectively llow distincti to swllow rule. 25 Signls from Supreme Court? Though y re dispositive, re re indictis yd Chief Justice Moyer s ccurring opini tht Ohio Supreme Court supports nrrow reding Wuerth. In n order entered ugust 24, 2011, Ohio Supreme Court declined to llow discretiry ppel Secd District s decisi in Stnley, which, while n endorsement Secd District s resing, neless leves Secd District s dispositi undisturd. 26 In dditi, in Stte ex rel. Swicki v. Lucs County Court Comm Ples, 27 decided July 21, 2010, Court ddressed wht, first blush, might seem to similr issue in strikingly different mnner, without even ddressing Wuerth. Swicki ddressed propriety n order grnting writ procedendo to compel court comm ples to proceed with medicl mlprctice cse brought ginst privte employer physicin who hd provided tretment in questi both s privte employee nd s n employee stte hospitl. 28 The tril court hd dismissed individul doctor lck jurisdicti bsed his sttus s stte employee, nd hd styed remining respdet superior clim pending determinti by Court Clims s to wher doctor ws entitled to persl immunity s stte employee. 29 In ffirming writ procedendo, Court looked to dms v. Peoples, opini in which Court held tht municipl employee s sttutory immunity from persl libility did utomticlly insulte his municipl employer from libility. 31 In so doing, Court relied Resttement Lw 2d, gency, Secti 217, which provides in pertinent prt tht In n cti ginst principl bsed cduct servnt in course employment: * * * (b) The principl hs no defense cuse fct tht: * * * (ii) gent hd n immunity from civil libility s to ct. 32 Bsed this, Court held in dms tht n employee s persl immunity cn shield his or her employer from libility under doctrine respdet superior. 33 In Swicki, Court embrced this principle gin, regrdless its surfce incsistency with both Wuerth nd Comer v. Risko. 34 Indeed, incsistency ws given reltively short shrift Comer ws distinguished s follows, while Wuerth ws mentied t ll: We hve held tht hospitl cn held lible under derivtive clim vicrious libility when physicin cn held primrily lible. Comer v. Risko, 106 Ohio St.3d 185, 2005 Ohio 4559, P 20, 833 N.E.2d 712. But tht cse does decide issue e us. Tht cse ws decided nrrowly nd turned ory gency by estoppel. Id. t P 1. The clim ginst hospitl ws extinguished by sttute limittis, by pplicti immunity. Id. t P 2. s we held in Johns [v. Univ. Cincinnti d. ssocs.], 101 Ohio St.3d 234, 2004 Ohio 824, 804 N.E.2d 19, P 37, determinti immunity is determinti libility. Rr, it is n initil step in litigti to determine wher stte will lible ny dmges cused by employee s ctis. dms, however, specificlly does llow n immunity defense to clim n employer s libility under respdet superior. dms, 18 Ohio St.3d t , 18 OBR 200, 480 N.E.2d The Supreme Court s opini in Swicki ws ruling procedurl questi nmely, wher tril court hd erreously styed underlying proceedings nd dispositi merits. Thus, up remnd, tril court rejected plintiff s sserti tht Supreme Court s nlysis respdet superior principles ws, in fct, substntive ruling s to employer s potentil libility, nd cducted its own independent nlysis issue. 36 The tril court n went to reject employer s rgument tht Wuerth hd chnged gency lw to require both employee nd employer to nmed in order respdet superior libility to rise. 37 Then, bsed Supreme Court s nlysis in Swicki, tril court held tht ny persl immunity to which physicin might entitled ws dispositive employer s respdet superior libility. The Supreme Court s pprent limitti Comer to cses involving gency by estoppel is csistent with tretment Comer hs received in lower courts, 38 nd though fr from dispositive, Court s complete filure to even menti Wuerth suggests tht Court did csider Wuerth to germne to issue presented. The tril court s opini in Swicki, in turn, suggests tht re my still room to rgue employer libility in cses involving physicin employees, even when physicin employee herself my hve technicl defense to libility. CT NEWS Winter

12 Swicki my hve repercussis outside medicl mlprctice ctext, since it lso hs en relied in t lest e instnce to permit principl in nmedicl field to held lible in cse where employee whose cduct ws t issue ws entitled to immunity under Ohio s workers compensti lws. In Friedmn v. Cstle viti, 39 United Sttes District Court Sourn District Ohio recently permitted fmily n employee n irport ctrctor who ws killed by lleged negligence prt his employer to pursue n cti ginst Columbus Regil irport uthority (CR) lleging tht CR ws vicriously lible irport ctrctor s negligence. The CR climed it ws entitled to judgment in its fvor s mtter lw cuse plintiff s decedent hd en n employee CR s gent, compny providing de-icing services t irport, nd thus gent ws entitled to invoke worker s compensti immunity. Bsed Swicki, district court rejected this rgument, holding tht immunity to which decedent s immedite employer ws entitled under Ohio s workers compensti sttutes did necessrily extinguish ny potentil libility CR might hve employer s negligence under principles gency lw. 40 So Wht s The Ly Lnd? Given tht Wuerth ws respse to certified questi lw s opposed to n nlysis specific fcts, opini ws unvoidbly vgue s to how principles enumerted rein pplied to specific fcts. By its own terms, however, Wuerth ws intended to nrrow ruling, to nrrowly pplied, nd re is no indicti in eir Court s opini or mjority ccurring opini tht justices deciding Wuerth lieved y were drsticlly revising rules respdet superior libility. To dte, lower courts hve, most prt, heeded se directis nd hve endevored to limit Wuerth to cses involving trditil pressil mlprctice, nmely mlprctice prt physicins or ttorneys. nd so fr Supreme Court hs signled ny dispprovl this pproch. End Notes Ohio St.3d 594, 2009 Ohio Id. t Id. t 18 ( Thus, in cmity with our decisis ccerning prctice medicine, we hold tht lw firm does engge in prctice lw nd ree cn directly commit legl mlprctice. ) 4. Id. t Id. t 8 (citing Ntil Uni Fire Ins. Co. Pittsburgh, P v. Wuerth (S.D. Ohio 2007), 540 F. Supp.2d 900, 911). 6. n exminti opini in Ntil Uni Fire Ins. Co. Pittsburgh, P v. Wuerth (S.D. Ohio 2007), 540 F. Supp.2d 900 indictes tht plintiff hd sued ttorney nd lw firm in sme complint, nd tht rguments s to timeliness complint s to both defendnts focused solely timeliness plintiff s clims ginst individul ttorney. See id. t 912 (plintiff s rgument limited to sserting tht clims ginst ttorney hd en timely). t lest e tril court hs found this to meningful distincti, nd hs held tht Wuerth does pply when employer hs en sued within sttute limittis. See Order filed Oct. 8, 2009, York v. Kokosing Cstructi Co., Summit Cty. No. CV t 3-4 (Rowlnd, J). The rgument tht lw firm cn held lible s lg s it is sued within sttute limittis clim ginst n individul ttorney, however, did persude Tenth District. See Illinois Nt. Ins. Co. v. Wiles, Boyle, Burholder & Brimgrdner Co. L.P.. (10th Dist.), 2010 Ohio 5872 t 21, 25 (rejecting rgument). 7. Wuerth, 2009 Ohio 3601 t 27 (Moyer, C.J, ccurring). 8. Id. t 30, n Id. t To dte, following opinis involving medicl or legl mlprctice hve pplied Wuerth to clims mde ginst prctice groups or lw firms, nd hve held tht filure to nme pressil whose cduct ws t issue within sttute limittis ws ftl to clim: Henry v. Mndell-Brown (1st Dist.), 2010 Ohio 3832 (suit ginst plstic surgery center filed when surge ws nmed within sttute limittis); Hignite v. Glick, Lymn & ssoc., Inc. (8th Dist.) 2011 Ohio 1698 (suit ginst dentl prctice filed when dentist ws nmed within sttute); Kilko v. Wlter & Hverfield (8th Dist.), 2010 Ohio 6364 (suit ginst lw firm filed when lwyer nmed within sttute); Bohn v. Dennis C. Jcks Co., L.P.. (8th Dist.), 188 Ohio pp.3d 446, 2010 Ohio 3422 (legl mlprctice clim ginst lw firm filed when individul ttorney nmed within sttute); Fisk v. Ruser & ssoc. Legl Clinic Co. (10th Dist.), 2011 Ohio 5465 (sme); Illinois Nt. Ins. Co. v. Wiles, Boyle, Burholder & Brimgrdner Co. L.P.. (10th Dist.), 2010 Ohio 5872 (sme); Hildebrnt Fmily Prtnership v. Provident Bnk (12th Dist.), 2010 Ohio 2712 (sme). 11. (7th Dist.), 2010 Ohio Id. t Id. t Id. t Tylor, 2010 Ohio 3986 t 46 (DeGenro, J., ccurring). 16. (2d Dist.), 2011 Ohio 1290, discretiry ppel llowed, 2011 Ohio Ohio 1290 t Id. t 6, Id. t Id. t Id. t Id. t 22, citing Hocking Cservncy Dist. v. Dods-Lindblom ssoc. (1980), 62 Ohio St.2d 195 (ly doctors nd ttorneys cn commit mlprctice) nd Lombrd v. Good Smritn d. Center (1982), 69 Ohio St.2d 471 (negligence nurses does cstitute mlprctice purposes R.C ()). n rgument hs en mde tht mendments mde to R.C () nd () fter Hocking nd Lombrd were decided undermine this nlysis, since mlprctice clims ginst physicins now fll within mbit sttute limittis medicl clims under R.C (). However, sttutes s written still distinguish mlprctice from medicl clims, nd do purport to extinguish trditil distinctis tween two. Moreover, trditil distincti tween mlprctice nd or ms negligence ws cknowledged in Wuerth itself. See Wuerth, 2009 Ohio 3601 t 15 ( It is well-estblished comm lw Ohio tht mlprctice is limited to negligence physicins nd ttorneys. (quoting Thomps v. Community ntl Helth Centers Wrren Cty., Inc., 71 Ohio St.3d 194, 195, 1994 Ohio 223)). 23. (2d Dist.), 2011 Ohio CT NEWS Winter

13 24. Id. t Id. t 25. The Secd District lso rejected hospitl s rgument tht MRI technicins treted like physicins rr thn nurses, ing tht neir technicins nor nurses re csidered physicins even when y perm tsks similr to those permed by physicins: There is no res to tret medicl technicin differently thn nurse neir is csidered physicin. While MVH urges this court to tret rdiologicl technicins s physicins due to some similrities tween two (e.g., Ohio certificti nd ctinuing educti requirements), rdiologicl technicin is physicin. Even if technicin or nurse is doing similr work to physicin, fct tht prticulr ct is within duty cre owed to ptient by n ttending physicin does necessrily exclude it from duty cre owed to ptient by nurse [or technicin]. Berdyck v. Shinde, 66 Ohio St.3d 573, 1999 Ohio 183, 613 N.E.2d 1014, prgrph five syllbus. Id. t Stnley v. Community Hosp., 2011 Ohio 4217 (discretiry ppel llowed) Ohio St.3d 198, 2010 Ohio Swicki t Id. t 3-8 (discussing procedurl history). 30. (1985), 18 Ohio St.3d See Swicki t (pplying dms). 32. REST. (2D) GENCY 217 (1958), quoted in dms, supr, t dms t Ohio St.3d 185, 2005 Ohio Swicki t See Opini nd Judgment Entry filed ugust 18, 2011, Swicki v. Temesy-rmos, Lucs County Court Comm Ples No. G CI Id. t 10 ( Here,.. PMCO ppers to rgue tht Wuerth chnged gency lw, requiring plintiff to nme both principl nd gent s defendnt. There is hing within Wuerth, however, expressly overriding lg-stnding principles gency lw. ). 38. See, e.g., Hollnd v. Bob Evnd Frms, Inc. (3d Dist.), 2008 Ohio 1487; Orebugh v. Wl-Mrt Stores, Inc. (12th Dist.), 2007 Ohio (S.D. Ohio My 5, 2011), No. 2:09-cv-749, 2011 U.S. Dist. LEXIS Id. t *20-*24. CRETIVE SOLUTIONS FOR DISPUTES Over 20 yers successful mediti experience. Peer selected The Best Lwyers in meric nd Ohio Super Lwyers in DR Secti. U.S. News-Best Lwyers Best Lw Firms Tier 1 in DR Distinguished Fellow, Interntil cdemy ditors. # Injury & Tort # Employment/Wge & Hour # Pressil Mlprctice # Envirmentl # Cstructi # Fmily Trust Disputes # Wrgful Deth # Securities # Product Libility # Complex litigti # Commercil Disputes Jerome F. Weiss, Esq. President nd Founder diti Inc is devoted exclusively to pressil mediti nd cflict resoluti-relted ctivities regrding institutis nd individuls. Tel Fx Visit us t Jerry Weiss provides vrious DR services to regil nd ntil clientele, including mediti, litigti nlysis nd independent resoluti nd negotiti counsel prties in litigted nd n-litigted disputes. CT NEWS Winter

14 Cthleen Bolek is principl t Bolek, Besser & Glesius, LLC. She cn reched t or TXTION OF PERSONL INJURY SETTLEMENTS: N INTRODUCTION FOR NON-TX LWYERS BY NON-TX LWYER by Cthleen Bolek ttorneys who hve en prcticing more thn fifteen yers will fdly recll time when defense counsel (or insurnce djuster) would simply send settlement check with short, boilerplte relese tht did ctin word indemnity or ny reference to income tx tretment. t tht time, Internl Revenue Code provided tht ll mounts received ccount persl injury or sickness were excluded from txble income nd subject to reporting requirements. Those dys re lg ge. Chnges mde to Code in 1989 nd 1996 hve complicted tx tretment persl injury settlements. ll punitive dmges re now txble, nd ly those mounts received s compensti persl physicl injury or physicl illness re excluded from gross income. 1 Emotil distress is physicl injury or illness even if it mnifests itself in physicl ilments. 2 Wher plintiff/txpyer my properly clim this exclusi nd successfully overcome chllenge by IRS will depend ly up underlying fcts, lso up plintiff s lwyer s success in negotiting lnguge settlement greement. In evluting txpyer s clim tht mounts received were compensti physicl cditi, IRS nd courts will look first to lnguge in settlement greement nd n to complint to determine defendnt s primry res mking pyment t issue. 3 Tx tretment must, ree, ddressed in settlement greement. Tx Csidertis Clims Involving Physicl Ctct nd Resulting Physicl Injury (dicl Mlprctice, Premises Libility, utomobile ccident, Product Libility, etc.) The tx code is cler with regrd to tretment settlement proceeds from clim involving ly dmges received ccount physicl injury or sickness. ll mounts recovered s compensti re excluded from txble income. 4 The exclusi pplies to mounts pid lost wges, emotil distress, medicl s, ttorney s fees, nd spouse s loss csortium. 5 Notbly, se mounts reported to IRS by pyer Form 1099-MISC or ny or. 6 If fcts give rise to clim punitive dmges, n llocti punitive dmges must mde in settlement greement, nd this mount is txble to plintiff CT NEWS Winter

15 Tx Csidertis Clims Involving No Physicl Ctct (Employment Discriminti Clims, Negligent or Intentil Inflicti Emotil Distress, Tortious Interference with Ctrct, Defmti, etc.) Where re is no physicl ctct lleged, re re severl csidertis regrding plintiff s tx burden. The llocti following will hve some tx csequences plintiff/ txpyer: medicl s incurred; lost wges; n-wge compenstory, punitive nd liquidted dmges; nd ttorneys fees. The settlement greement specify mount pid to plintiff nd plintiff s counsel ech se items, nd wher nd in wht mnner it will reported to IRS. IRC 104()(2) permits txpyer to exclude out pocket medicl s ctully incurred, even if injury or sickness is physicl. Thus, where pplicble, settlement greement stte mount pid in reimbursement such s. Becuse IRS requires employers to withhold income tx, nd holds m respsible txes y re required to withhold, defense counsel rightfully insist tht n pproprite sum llocted s wge loss, subjected to withholdings, nd reported m W-2. 8 Depending up plintiff s income in tht tx yer, it my neficil to specify in settlement greement tht withholdings shll mde t specific rte; orwise, pyment my treted s if it is ly e twenty-four py periods in yer, nd withholdings will excessive. The mount reported W-2 include ll frt nd bck py. ll compensti lost wges, wher or employee permed work employer, is subject to withholding. 9 mounts pid s severnce py re wges. 10 Hving wges pid to plintiff in lump sum, without withholding nd subject to n IRS Form 1099-MISC, my sound ppeling is ctully disdvntgeous to plintiff. Employment txes owed pursunt to Federl Insurnce Ctrii ct (FIC), which include Socil Security nd dicre txes, re supposed to pid in equl sums by employer nd employee, nd currently exceed 12% employee s income. 11 If txes re withheld nd mount pid is reported Form 1099-MISC s nemployee compensti, employee will lible full mount tx, including employer s shre. 12 The settlement greement specify mount pid s compensti n-physicl injuries or illness, such s emotil distress, nd s punitive nd liquidted dmges, nd settlement greement stte tht n pproprite m 1099-MISC Box 3 will issued to report this mount. If settlement greement does so specify, defendnt s tx preprer my simply report it s n-employee compensti, which will result in plintiff incurring libility full mount FIC tx. 13 The totl mount pid plintiff s ttorney fees stted in settlement greement. This will ensure tht employee is required to py FIC this mount. Moreover, where clim is civil rights clim s defined in IRC 62(), plintiff my write f entire mount ttorney fees s n bove--line deducti from gross income. 14 The full mount will reported nd Form 1099-MISC issued to both plintiff nd her ttorney. 15 The plintiff remind his or her tx preprer tht this mount is deducted Schedule s tx preference item purposes MT. Complex Clims Involving Some Physicl Ctct no Cler Physicl Injury (Wrgful Imprisment, Sexul Hrssment, Sexul ssult, etc.) The most complex cses, tx purposes, re those where injury is clerly physicl, involves some physicl ctct. For exmple, where plintiff lleges tht she ws flsely ccused shoplifting nd wrgfully imprised by store persnel, plintiff my llege she experienced fer nd emotil distress, nd physicl hrm from detenti. nor comm exmple is sexul hrssment cses, which ten gin with verbl buse nd, lter, physicl bttery. The lw is unsettled s to wher exclusi persl physicl injuries pplies where no physicl mnifestti injury is present (such s bruising); physicl ctct le does lwys equte to physicl injury. 16 Once defense counsel grees tht plintiff sufficiently lleged persl physicl injury, prties must gree to n llocti tween dmges rising from physicl injury, nd those rising from events tht preceded physicl injury. Regrdless extent physicl injury sustined, dmges rising from events preceding physicl ctct re subject to txti. 17 With regrd to n-physicl injury, n llocti mde medicl s, wges, emotil distress, punitive nd CT NEWS Winter

16 liquidted dmges, nd ttorneys fees, nd se mounts must ppropritely reported. ll compenstory dmges rising from physicl injury re neir reportble nor txble. Promise to Keep Settlement Cfidentil My Cost Plintiff Stiff Tx: The Dennis Rodmn Cse Finlly, pitflls my found even where clim involves ly physicl injury. mounts pid in csiderti cfidentility, n greement to disprge, nd similr terms re lso txble, s determined by ble cse involving Dennis Rodmn. 18 In tht cse, Rodmn kicked photogrpher, nd settled photogrpher s injury clim sum $200,000. The tx court determined tht Rodmn ctully pid $80,000 tht mount photogrpher s greement to mintin settlement s cfidentil, nd to defme Rodmn or cooperte in criminl prosecuti; photogrpher ws ordered to py income tx $80,000. While re is no known bulletpro wy to void such n outcome, e suggesti is to ensure settlement greement specifies csiderti such terms, wher it nominl sum or mutul promise. End Notes 1. IRC Secti 104()(2) currently sttes tht mount ny dmges (or thn punitive dmges) received (wher by suit or greement nd wher s lump sum or s periodic pyments) ccount persl physicl injuries or physicl sickness re excluded from gross income. The exclusi pplies ly if settlement is bsed up tort or tort type rights. Stdynk v. Comm r, T.C. mo (T.C. 2008). See lso, Comm r v. Schleier, 515 U.S. 323, 327, 115 S.Ct. 2159, 132 L.Ed.2d 294 (1995) U.S.C.S Though courts typiclly look to settlement greement first, [i]n bsence b fide lnguge in settlement greement s to res settlement pyment, we discern tht res by determining intent pyor in mking pyment. De Lc v. Dick Blick Holdings, Inc., 2011 U.S. Dist. LEXIS 44256, 3-4 (N.D. Ill. pr. 25, 2011), citing Prsil v. Comm r, T.C. mo , 85 T.C.M. (CCH) 1124, t *4 (2003), Shltz v. Comm r, T.C. mo , 85 T.C.M. (CCH) 1489, t *2 (2003), Robins v. Comm r, 102 T.C. 116, 127 (T.C. 1994). See lso, Phoenix Col Co., Inc. v. Comm r, 231 F.2d 420 (2d Cir. 1956); Brden v. Comm r, T.C. Summry Opini (T.C. 2006), citing Fo v. Comm r, 79 T.C. 680, 696 (1982), ff d without published opini, 749 F.2d 37 (9th Cir. 1984); gr v. Comm r, 290 F.2d 283, 284 (2d Cir. 1961), ff g per curim T.C. mo ; mos v. Comm r, T.C. mo ; Rev. Rul The IRS will disregrd n llocti in settlement greement where it does reflect ctul fcts cse s stted in complint. 4. See generlly, IRC Secti 104()(2). 5. See H.R. Cf. Rep. No. 737, 100 cg. 2d Sess. 301 (1996). 6. See, e.g., Instructis Form 1099-MISC, Box 3, issued by Deprtment Tresury nd found line t instructis/i1099msc/r02.html#d0e See IRC Secti 104()(2), Instructis Form 1099-MISC, Box See, IRC Sectis 3401 et seq. 9. See Gerc v. United Sttes, 164 F.3d 1015 (6th Cir. 1999). 10. See McCorkill v. U.S., 32 F.Supp.2d 46 (D. Cn. 1999) USC 3101 et seq. 12. See 26 U.S.C et seq. 13. See Instructis Form 1099-MISC, Box See Secti 703(Civil Rights Relief ct), IRC 62(). 15. Id. 16. See, e.g., Stdnyk v. Comm r, T.C. mo (T.C. 2008) ( Physicl restrint nd physicl detenti re physicl injuries purposes secti 104()(2). Being subjected to police rrest procedures my cuse physicl discomt. However, ing hndcuffed or serched is physicl injury purposes secti 104()(2). Nor is deprivti persl freedom physicl injury purposes secti 104()(2) ); see, Mumy v. Comm r, T.C. Summry Opini (T.C. 2005) (where txpyer received settlement emotil distress suffered s result sexul hrssment, nd pin suffered s result pinch, court held tht mount received hrssment ws txble, while tht received pinch ws ). See lso, PLR (July 7, 2000) (IRS privte letter ddressing llocti dmges in sexul hrssment cse involving n ssult). 17. See, e.g., Mumy v. Comm r, supr. 18. mos, T.C. mo CT NEWS Winter

17 Nicole Greer is n ssocite t Spngenrg, Shibley & Lir LLP. She cn reched t or Insurnce gent nd gency Libility In Ohio When There Is No Coverge For The Loss Due To Negligence Or Misrepresentti By The gent by Nicole Greer Every dy, people purchse insurnce, py premiums, nd think y re fully protected. But ll too ten, when something goes wrg, y discover tht insurnce compny denies coverge. Sometimes insurnce compny rgues tht coverge doesn t pply due to n exclusi or definiti or or term policy, sometimes insurnce compny rgues tht re simply is no coverge. So if re is no coverge, whose fult is it? nd how cn recover client? When re is no coverge under n insurnce ctrct, client s expectti ws tht re would coverge type loss suffered, re my clims ginst insurnce gent nd gency including brech duty to procure requested insurnce, brech duty to exercise resble cre in dvising customer, nd negligent misrepresentti. The two biggest chllenges in se cses re demstrting tht re ws fiduciry reltiship which will impose gent heightened duty to dvise, nd preventing court from pplying pure ctriory negligence stndrd to duty insured to red policy nd ify gent if coverge is indequte. 15 CT NEWS Winter The Insurnce gent s Duty to Procure Insurnce The first questi in this type cse is did client request coverge tht insurnce gent filed to procure? When customer requests insurnce, n gent hs duty to exercise good fith nd resble diligence in procuring tht insurnce. 2 Ohio courts hve lg recognized n cti negligence bsed up n insurnce gent s filure to procure insurnce. 1 If n insurnce gent s negligence results in coverge less thn tht desired by n insured, gent will lible mount insured would hve received hd correct coverge en in plce. 3 So need to demstrte tht client requested insurnce tht ws provided. Full coverge is ten request ly pers. In respse to this type n-specific request from ly people who lck expertise to understnd ir insurnce needs nd products vilble, insurnce gents ten obtin stndrd, cookiecutter policies. There re mny different wys tht customers purchse insurnce nowdys, nd, untuntely, re my little documented pro vilble wht ws requested. Look t client s history purchsing insurnce CT NEWS Winter

18 to bolster her clim s to wht type coverge ws requested. To extent possible it is importnt to identify ny written requests mde by client regrding coverge: client s pplicti, or policies purchsed by client, emil correspdence, nd ny similr documents. Use discovery to seek recorded cverstis telephe trnsctis, ttempt to get dmissis from gent, nd, t very lest, fer client s testimy s to wht ws requested. In dditi to difficulty in proving wht coverge ws requested, mny phrses customer my use in mking request such s full coverge re terms rt within insurnce industry tht hve different menings to n gent thn y do to customer who thinks she is requesting much more comprehensive coverge thn she is likely to receive. For this res, n gent my ctully dmit tht specific request coverge ws mde, rgue bout mening request. The insured s testimy tht she thought full coverge included prticulr loss t issue cn get cse pst summry judgment, prticulrly if gent dmits tht he did explin limittis nd exclusis policy. If cn defet summry judgment in se cses, re well wy to successful resoluti ginst insurnce gent, s well s gency. Your cse cn strengned by fering expert testimy regrding pressil duties n insurnce gent. n expert cn testify bout extensive trining insurnce gents receive so tht y cn understnd complexities insurnce industry nd products y fer. n expert cn lso testify s to industry stndrds tht insurnce gents re expected to follow when evluting customer s insurnce needs, dvising customer vilble coverges, nd procuring pproprite insurnce t st price. The pressil stndrds insurnce industry re substntilly higher thn those currently imposed by mny courts, nd it is importnt to fer expert testimy so tht court nd jury cn see tht higher, pressil stndrd pply. Insurnce gents hold mselves out to public s pressils nd y held to pplicble pressil stndrd within insurnce industry, just s or pressils re bound by stndrds ir pressis. The Insurnce gent s Duty to dvise Your client my hve explicitly requested insurnce coverge he needed, cuse, like most csumers, he my hve known specific type coverge ws vilble or dvisble. He lso my hve known wht limits were most pproprite his needs. Theree, next questi to nswer when evluting potentil clims is wher insurnce gent fulfilled her duty to dvise customer regrding his coverge, nd wher cn rgue this rose to level fiduciry duty to client. Insurnce gents re trined pressils, mny whom receive extensive instructi bout how to evlute customer s insurnce needs nd fer pproprite insurnce, nd who ten hold pressil credentils nd certifictis tht reflect ir superior knowledge. Most customers, or hnd, re unsophisticted ly people with no trining in insurnce industry. Even well educted, sophisticted insurnce customers do hve specilized knowledge to wre vriety insurnce products vilble or to understnd complicted, industry-specific lnguge in policies. Becuse this disprity in expertise, client most likely relied up his gent to dvise him s to type nd mount insurnce coverge needed. gents re wre expectti tht y will ct s dvisors cuse it is prt ir trining nd credentiling. In dditi to bsic duty to exercise good fith nd resble diligence in procuring requested insurnce, fiduciry reltiship my exist nd give rise to furr duty to exercise resble cre in dvising customer if insurnce gency knows tht customer is relying up its expertise. 4 Furr, such n gency hs duty to exercise resble cre in dvising its customer bout terms requested coverge. 5 Your client is expert in insurnce coverge, so it is importnt to estblish tht he ws relying up expertise gent to dvise him bout vilble coverge nd terms coverge provided, nd tht he communicted to gent tht he ws plcing tht trust in gent. If client cn demstrte tht he ws relying expertise insurnce gent, my ble to pursue clim brech fiduciry duty in dditi to clim ordinry negligence cuse clim brech fiduciry duty is bsiclly clim negligence, lit involving higher stndrd cre. 6 fiduciry reltiship exists where specil cfidence nd trust is reposed in integrity nd fidelity nor nd re is resulting positi superiority or influence, cquired by virtue this specil trust. 7 In ctext reltiship tween n insurnce gent nd customer, 16 CT NEWS Winter

19 will probbly hve to show tht fiduciry reltiship ws creted out n inml reltiship where both prties [understood] tht specil trust or cfidence hs en reposed. 8 In order to rech heightened duty imposed in ctext fiduciry reltiship, it is importnt to fer ny evidence tht client communicted to insurnce gent tht he lcked persl knowledge s to his insurnce needs nd ws looking to gent s expertise nd dvice. Fctors tht my help estblish existence fiduciry reltiship include how lg client hs used gent in questi his insurnce needs nd wher re ws persl reltiship tht engendered cfidence in gent s bility nd bolstered client s lief tht gent ws looking out his st interest. You lso csider wher gent provided multiple types insurnce coverge client such s home, utomobile, nd business tht would reflect n going reltiship, brod understnding client s insurnce needs, nd heightened level trust. If gent fered dvice or guidnce with regrd to obtining previous insurnce coverge, tht will help show mutul understnding tht client ws depending gent s dvice with regrd to ll insurnce products. Ohio courts re hesitnt to recognize fiduciry reltiship tween n insurnce gent nd customer, where sufficient fcts exist to demstrte relince gent s expertise, fiduciry duty my found. Wher or fiduciry reltiship exists depends fcts nd circumstnces ech cse, 9 ree, court grnt summry judgment this questi cuse existence fiduciry duty or similr reltiship is fctul questi trier fct. 10 Even if cn show tht insurnce gent filed to procure requested insurnce or breched her duty to dvise client bout vilble coverge or coverge provided, my still fce substntil chllenge in mny courts regrding client s possible comprtive negligence, which courts my pply s strict ctriory negligence stndrd. The Customer s Duty to Exmine Policy If gent s negligence results in less coverge thn desired by customer, gent will lible dmges. However, insured hs correspding duty to exmine policy, know extent its coverge, nd ify gent if coverge is indequte; nd n gent or broker is lible when loss is due to customer s own ct or omissi. Severl Ohio courts pply this duty s e imposing pure ctriory negligence rr thn s questi comprtive negligence to decided by jury. If court pplies comprtive negligence nlysis, compris client s lleged negligence to tht insurnce gent presents fct questi jury, nd some degree negligence by client will br recovery. Tking into ccount complexity insurnce policy lnguge, disprity in expertise, nd customer s relince her insurnce gent to dvise her, gent s negligence fr outweigh tht client. However, if court pplies pure ctriory negligence stndrd, n ny negligence prt client will br recovery. Pure ctriory negligence cts essentilly s strict libility ginst client nd completely shields n insurnce gent from libility so lg s he sends copy policy to insured. In Hork v. Ntiwide Ins. Co., 11 plintiffs house ws destroyed by fire nd ir insurnce coverge ws insufficient to cover ir losses, Ninth District Court ppels ffirmed tril court s grnt summry judgment finding tht insurnce compny ws negligent s mtter lw. The court ed tht plintiffs were educted individuls nd plced no more relince insurnce gent thn usul insured. The court found tht ny loss plintiffs suffered ws due to ir own omissi in filing to exmine ir coverge crefully cuse insureds hd duty to exmine ir [ ] policy, to know extent its coverge, nd to ify ppellee [ ] if y thought mount coverge ws indequte. 12 The Hork court held tht []n gent or broker is lible when customer s loss is due to customer s own ct or omissi, 13 nd tht where plintiff hs received copy policy filed to exmine it, know its ctents, nd ify gent ny ccerns, it ws complete br to recovery. This is trp tht cn do very little to void. The insurnce compny most likely miled copy policy to client, client probbly did red it crefully, nd tht my led to no recovery in court. The Hork decisi is e more extreme exmples, or Ohio courts hve pplied sme nlysis, holding in fvor insurnce compnies, despite recognizing tht some duty exists prt n insurnce gency to exercise good fith nd resble diligence. For exmple, CT NEWS Winter

20 in Rose v. Lnd, court refused to llow plintiff, well-educted business womn, to rgue tht her loss ws due to insurnce gency s filure to dvise her, when she dmitted to exmining her new policy. 14 Similrly, in First Ctholic Slovk Uni v. Buckeye Uni Ins. Co., court held tht []n insured who hs received nd held policies severl yers which ctin sme terms s policy in ce when loss occurs, without complining bout those terms, cn complin fter loss tht policy terms did comply with its originl requests. 15 The Fifth District Court ppels hs ed its disgreement with this line cses, stting tht [w]hile we do necessrily disgree tht n insured hs correspding duty to exmine coverge provided nd my chrged with knowledge ctents his insurnce policies, we cn find ny such duty or brech re completely negtes ppellnts clim. To do so would imposing strict ctriory negligence when such is stndrd in Ohio. 16 The court held tht ppellnts filure to red policy is typiclly subject comprtive negligence defense which is generlly ddressed t tril nd moti summry judgment. 17 The Fourth nd Seventh Districts hve lso held tht n insured s filure to red policy is subject comprtive negligence defense, which is questi fct tril. 18 To dte, re is no Ohio Supreme Court decisi ddressing cflict mg ppellte districts s to wher comprtive negligence pplied in ccordnce with generl rule in Ohio, or if re is something so unique bout this type cse tht mens pure ctriory negligence is pproprite nd insurnce gents protected from virtully ny libility. Mny lower courts ctinue to pply ntiquted stndrd pure ctriory negligence which prevents jury from csidering disprity in expertise tween pressil insurnce gent nd ly pers who relies gent s superior knowledge. Neverless, under current Supreme Court cse lw, ny questi climed negligence prt plintiff is properly n issue jury to decide pursunt to modern comprtive negligence lw. 19 Libility Negligent Misrepresentti In dditi to libility negligent filure to procure insurnce nd properly dvise customer, n insurnce gent nd principl my held lible negligent misrepresentti. Ohio Rev. Code provides tht pers who solicits nd procures pplictis insurnce is n gent entity tht refter issues policy up tht pplicti. The well-estblished rule tht cts n gent within scope wht he is employed to do nd with reference to mtter over which his uthority extends re binding his principl, 20 pplies to clims negligent misrepresentti, s it does to or negligence clims. If n insurnce gent mkes negligent or intentil misrepresenttis within scope her employment, both gent nd broker held lible tortious miscduct. 21 bsent pro tht pplicnt knew insurer ws ing deceived by gent or tht pplicnt lied or colluded with gent, insurer cn escpe libility even if its gent intentilly supplied flse inmti to insurer s prt pplicti. 22 Not ly is principl vicriously lible, tort victim still hs right to recover from individul tortfesor, s well s tht individul s employer, sttements mde within scope employment. 23 The elements negligent misrepresentti re: (1) tht n individul with pecuniry interest, (2) supplies flse inmti guidnce ors in ir business trnsctis, (3) tht or pers justifibly relies up, (4) if defendnt fils to exercise resble cre or competence in obtining or communicting inmti. 24 If hve pro tht gent provided flse inmti to insured regrding terms coverge or coverge ctully procured, clim negligent misrepresentti is certinly wrrnted. Except in cses outright frud, min questis re likely to wher inmti supplied ws ctully flse nd wher gent knew or hve known it ws flse. This type clim is most likely to rise where gent ssured client tht he hd coverge requested when coverge ws procured or ws deficient in some wy due to exclusis or limits. This is where fourth element comes into ply, cuse gent most likely filed to tke resble steps to obtin necessry inmti regrding coverge provided nd/or filed to tke resble steps to communicte inmti bout coverge to client. The gent my or my hve known tht she ws supplying flse inmti, she hve known nd she hve exercised resble cre in obtining nd communicting ccurte nd true inmti. To estblish this, will hve to engge in discovery regrding business 18 CT NEWS Winter

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