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Supreme Court Orders Expedited Response in Pureval Lawsuit

Author By Finney Law FirmPosted on

The Ohio Supreme Court has ordered the Ohio Elections Commission to file its response to Aftab Pureval’s emergency motion to halt the investigation into his campaign finance violations by noon on Friday, October 26, 2018.

In addition to the filing at the Ohio Supreme Court, Pureval has filed yet another motion with the Ohio Elections Commission seeking to delay the hearing until after the election. Pureval is desperate to prevent the voters from scrutinizing his campaign spending before the election.

The Order from the Ohio Supreme Court and the latest filing at the Ohio Elections Commission are below and available online here and here.

Read more about Pureval’s efforts to avoid accountability in this matter here, here, and here.

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Pureval Seeks Fifth Bite at the Apple to Delay Elections Commission Investigation

Author By Finney Law FirmPosted on

Fresh off a loss at the Tenth District Court of Appeals, Aftab Pureval has filed an appeal with the Ohio Supreme Court seeking to halt the Ohio Elections Commission investigation into campaign finance violations by his Clerk of Courts Campaign.

This will be the Pureval’s fifth attempt at halting the investigation; having lost this argument three times before the Elections Commission and once at the Court of Appeals.

It appears that Pureval is desperate to avoid sunshine and public scrutiny of his campaign finance violations.

Read the notice of Appeal below and  here and Motion for Expedited Proceedings here.

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Employers’ Responsibility for Health Insurance in Kentucky

Author By Finney Law FirmPosted on

There is no law in Kentucky that requires employers to provide group health insurance to their employees. While most employers do provide this benefit, there is no government regulation or entity forcing them to do so.

There are, however, state laws that require employer-provided policies to cover specific services. These required coverages are known as “mandated benefits.”

A full list of state-required benefits in Kentucky is available through the Center for Consumer Information and Insurance Oversight. The following are a few examples of benefits that employers must provide in their insurance policies:

  • Home healthcare and hospice
  • Autism spectrum disorders
  • Hearing aids and related services
  • Colorectal cancer screenings
  • Diabetes
  • Reconstructive surgery
  • Minimum inpatient post-delivery care for mothers and their newly born children
  • Emergency medical conditions and emergency department services

The self-insurance exception

U.S. federal law prohibits states from regulating self-insured benefit plans. Thus, the mandated benefits and continuation and conversion provisions in Kentucky do not apply to any health insurance plan in which the employer pays for all of the benefits without the proceeds of an insurance policy.

An employer’s health plan is classified as self-insured if the risk of paying out claims is on the employer rather than the insurance provider. These plans can be contracted with third-party administrators — which can include insurance companies — to actually process the benefit claims. The third-party administrator then pays the claim before the employer provides reimbursement.

In many cases, self-insured plans involve coverage called “stop-loss” insurance, which covers particularly large claims. The purchase of this coverage does not lead to losing self-insured status and the exemption from state regulations.

Affordable Care Act

Finally, the enactment of the Affordable Care Act mandated the development of healthcare exchanges that provide individuals and small businesses with realistically affordable access to insurance coverage. Each state has some flexibility with creating exchanges that best meet their needs while still fulfilling the regulatory and statutory standards of the ACA. Kentucky’s exchange is the Kentucky Health Benefit Exchange.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Ohio Employment Law: Can an employee be fired for legally using medical marijuana?

Author By Stephen E. ImmPosted on

As with many other states, Ohio now permits its citizens to consume marijuana legally if it is validly prescribed by a physician for a medical condition. The question arises as to whether this has any implications for employment. Are employees who use medically prescribed marijuana protected from discharge for their marijuana usage? Are employers still permitted to have and enforce a “drug-free workplace” policy if it prohibits the consumption of legal, medically prescribed marijuana?

The legislation establishing Ohio’s medical marijuana law expressly protects employers in several ways. Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. They may refuse to hire an individual due to his or her use, possession, or distribution of medical marijuana, and may discharge or otherwise discipline an existing employee for such use, possession, or distribution.

Employers may also establish or maintain a formal drug-free workplace program. And an employer may still discharge an employee for “just cause” if the employee uses medical marijuana in violation of the employer’s drug-free workplace policy. Moreover, the employee will be ineligible for unemployment compensation if the termination resulted from a violation of the employer’s drug-free workplace policy.

The administrator of workers’ compensation may still grant rebates and discounts on premium rates to employers that participate in a drug-free workplace program, and an employer maintains the right to defend against workers’ compensation claims where use of medical marijuana contributes to or results in injury.

Employers and employees should be aware, however, that the usage of medically prescribed marijuana can intersect with federal and state laws that prohibit disability discrimination, and that require employers to reasonably accommodate employee disabilities. If an employee uses medically prescribed marijuana as a result of having a disability, an employer considering an adverse employment action against such an employee must make it clear that the action is based on the employee’s marijuana usage, and not on the underlying disability that led to that usage.

This can be a very tricky area for employers and employees to navigate. If you have questions about a particular situation, or need help in crafting an appropriate employment policy, it is important to seek the guidance of a qualified employment attorney. And be careful out there!

How Medical Malpractice Works in Kentucky

Author By Finney Law FirmPosted on

In Kentucky, medical malpractice occurs when a healthcare professional (such as a doctor, nurse or other hospital staff member) is medically negligent, leading to injury for a patient. Medical negligence arises from any acts or failures to act that fall below the standard of care expected of competent medical professionals.

To determine if the action fails to meet this standard and qualifies as medical malpractice, legal professionals compare the actions of the healthcare professional to the hypothetical actions of a “reasonably competent” professional in the same field and circumstances.

For example, a healthcare provider in Kentucky could be considered medically negligent in the following circumstances:

  • Failure to diagnose (or an incorrect diagnosis)
  • Failure to treat or provide acceptable treatment
  • Prescription errors
  • Birth injuries caused during delivery and treatment

Who is the typical defendant in a medical malpractice lawsuit?

Any healthcare provider who is legally allowed to treat a patient or provide medical services of any type could be held liable for medical malpractice. This includes nurses, doctors, surgeons, dentists, hospitals, clinics, social workers, medical groups and psychologists.

What is the statute of limitations for medical malpractice claims in Kentucky?

A person who has been injured due to alleged malpractice must file a claim within one year of the date of the act that resulted in the injury. However, if the injury was not discovered until later, the injured patient has one year from the date of discovery — or the date the injury should have been discovered. A failure to act within the statute of limitations will likely result in the patient’s case being summarily dismissed.

Does Kentucky have medical malpractice damage caps?

Kentucky has no caps for economic, noneconomic or punitive damages. A plaintiff in a malpractice claim could receive a significant amount of money if the negligence was particularly egregious.

However, it is important to remember that there is a very high burden of proof in medical malpractice cases. Just because a procedure resulted in a negative outcome does not mean that procedure was administered negligently.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Transcript of Board of Elections Special Meeting Released

Author By Finney Law FirmPosted on

The Hamilton County Board of Elections released a transcript of this mornings meeting. Read the transcript on scribd here or below.

Also released was a new filing by the Aftab Pureval campaign – the unredacted checks showing that the $16,500 payment to GBA Strategies – a DC polling firm – was indeed for polling, not “consulting.” View the checks here or below.

These documents prove the truth of the complaint filed by Finney Law Firm with the Ohio Elections Commission and highlight the need for a full investigation by the Ohio Elections Commission.

The Ohio Elections Commission will hold its probable cause hearing Thursday, September 20, at 10 a.m. in the Riffe Center in Columbus, Ohio. We look forward to a full adjudication of our complaint.

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Professional Malpractice and Liability Standards

Author By Todd McMurtryPosted on

Written By: Todd V. McMurtry

Whether it’s the architect who designs your dream home, the accountant responsible for keeping your company’s financials in check, or the attorney you need by your side in court, experts are a necessity. You hire a professional to help you complete a task you’d never be able to do on your own. Along with signing of contracts and the exchange of money comes a good-faith belief that standards will be met, if not exceeded. It’s simple: you anticipate the job will be done with reasonable competence, and that it will be done right.

What happens, though, when the dream home collapses? The accounting books are inaccurate? The lawyer holding your money in escrow to fails to return your calls? Many feel helpless in the face of these situations and others like them. You tell yourself it’s all your fault. Maybe you should have done better research or paid closer attention— but you didn’t and now you’re left to suffer financially, emotionally, or even physically. Every state requires a certain set of standards for each profession. Failing to adhere to these standards is not just dangerous, it’s malpractice. Attorney Todd V. McMurtry knows that the only person at fault is the so-called professional you hired.

As an experienced trial attorney, Todd McMurtry has an extensive background in handling various types of professional malpractice claims for both individuals and companies. He will accurately assess your case to determine if malpractice or negligence has been committed. If liability is established, Todd and his team will handle all the details pertaining to your case: from helping you successfully document your damages to hiring and consulting expert witnesses.

Contrary to popular belief, professional malpractice reaches far beyond the medical field. Todd is available to review cases of the following types of professional malpractice:

  • Accountant malpractice (including breach of contract or misrepresentation)
  • Legal malpractice (including failure to meet statutes of limitations or lack of communication)
  • Clergy malpractice (including breach of confidentiality or abuse of authority)
  • Architect/engineer malpractice (including design flaws or errors/omissions in an approval)
  • Real estate agent malpractice (including misrepresentation of property or failing to act in the best interest of their client)
  • Mortuary/funeral home malpractice (including failure to dispose of remains by proper method or within the expected amount of time per state requirements)
  • Stockbroker malpractice (including recommending a fraudulent investment or assuming greater risk than the client wished)
  • Insurance broker malpractice (including failure to pay the premium or purchase specific insurance requested by the client)

Todd’s philosophy is simple: If an expert professional failed to meet the duty owed to you, their client or customer, he or she must pay. Professionals too often will do everything within their power to keep from having to admit any wrongdoing and potentially harming their reputation as a result. This can include calling on their own attorneys who may draw out the process or attempt to blame others. To combat this, Todd stays up to date on industry-specific standards across many different professions. He will cut through the nonsense to establish that the professional simply failed to adhere to the professional standards of the industry, and that they must compensate you for your damages as a result.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Corruption at Hamilton County Board of Elections?

Author By Finney Law FirmPosted on

The Cincinnati Enquirer is reporting that the Hamilton County Board of Elections is opening its own investigation into Aftab Pureval’s campaign finance reporting, and the history of the redactions to checks filed by his campaign.

The controversy has erupted in response to Pureval’s claim that a Board of Elections employees made redactions to his campaign.

Now it appears that in fact, a Democrat Board of Elections employee did illegally alter public records to prevent disclosure of the information contained on the memo line of one check in particular.

One check, paid to GBA Strategies out of Washington, D.C. appears to read “Poll…” beneath the redaction. Such an expenditure by the clerk of courts campaign (nearly three years before the election) would be quite unusual. It is believed that the payment was made for polling done for Pureval’s congressional race, a violation of state and federal campaign finance laws.

The Board of Elections sole purpise to create and maintain records – be they campaign finance records, or more integral to our system of governance, election records. There are now very real questions about the integrity of the Board of Elections recordkeeping functions. The Board of Elections must determine whether Pureval’s campaign was involved in the decision to illegally redact his campaign finance filings, so that Hamilton County voters can be confident in the results reported by the Hamilton County Board of Elections.

The Hamilton County Board of Elections will hold a special emergency meeting on Wednesday, September 19, 2018 at 11 a.m. to investigate further, That meeting will be at 4700 Smith Road, Cincinnati, Ohio 45212. The public and media is invited to attend.

Read the Ohio Elections Commission Complaint here.

Read Pureval’s response, including the statement that the Board of Election redacted the memo line here.

Employment Law: Can an employer make deductions from employee wages?

Author By Matthew S. OkiishiPosted on

Can an employer make deductions from employee wages?

On the face it, the answer seems obvious: Of course! Employers make deductions from employee wages on a routine basis. Common examples that come to mind are for federal and state tax withholdings, or for court-ordered garnishments. Sometimes, employees authorize other deductions, such as for insurance or union dues. All of these examples share a common trait: They exist for the benefit of the employee or a third party.

But what about when an employer unilaterally docks an employee’s wages for items that benefit the employer, such as for a uniform, a background check, or for damage to employer property caused by an employee?

Generally, the Fair Labor Standards Act, the law governing wages on a federal level, permits unilateral deductions that benefit the employer provided that those deductions do not reduce the employee’s wages below the minimum wage. This rule applies to both overtime non-exempt and exempt salaried employees, and employers who routinely reduce the wages of salary exempt employees below the federal requirement of $455 per week run the risk of losing the exemption.

While federal law may permit deductions from employee wages, applicable state laws can and often do restrict the ability of employers to make deductions that benefit the employer.  Ohio law prohibits employers from reducing the wages of employees for tools, damaged machinery, and uniforms absent written agreement with the employee. Going further than Ohio, Kentucky prohibits employers from deducting wages for things like breakage or property damage even when the employee authorizes the deduction. And of course, in both Ohio and Kentucky, employers should be wary of making deductions that reduce an employee’s wage to below the minimum wage.

The legality of deductions from employee wages is fact specific. Both employers and employees should be wary of wage deductions, as overzealous deductions could prove costly for pocketbooks and bottom lines.

Kentucky Supreme Court confirms punitive damages are not recoverable for “fraudulent” breach of contract unless an independent fraud claim exists

Author By Finney Law FirmPosted on

  • posted: Sep. 04, 2018
  • Kyle M. Winslow

Punitive damages are not recoverable for “fraudulent” breach of contract

Written By: Kyle M. Winslow

In Nami Res. Co., LLC v. Asher Land & Mineral, LTD, 2018 Ky. LEXIS 353 (August 16, 2018), the Kentucky Supreme Court recently considered the interplay between punitive damages and a breach of contract claim based on fraud. That case involved a dispute over a gas lease. Under the lease, the lessor received a one-eighth royalty from each well where the lessee found gas. The lessee, however, deducted certain post-production expenses incurred by the lessee to process the gas. In 2006, the lessor sued the lessee for breach of the leases, claiming that the lessee intentionally underpaid the contractual royalties by fraudulently misrepresenting the factors that determined the royalties owed the lessor.

At trial, a jury awarded the lessor over $2.5 million in punitive damages. The Supreme Court accepted discretionary review, in part, to examine the propriety of the punitive damages award. In a unanimous opinion, the Court vacated the punitive damages award.

The Court began its analysis with the general principle that punitive damages are not ordinarily recoverable for a breach of contract. This case, however, did not concern an ordinary breach of contract. Here, the plaintiff alleged breach of contract based on fraud. In determining that the general principle also applied to this type of contract claim, the Court turned to the economic loss doctrine, which had, until recently, been limited to commercial product liability cases. See, e.g, the Court of Appeals’ decision in the same case, 2015 Ky. App. LEXIS 117, at 121 (Ct. App. Aug. 14, 2015)(“Kentucky law does not extend the economic loss rule beyond the realm of commercial product sales.”) After a discussion of the economic loss doctrine, the Court held the rule in Kentucky to be as follows:

“[W]hen a plaintiff may obtain complete relief for his contractual losses by means of compensatory damages under a breach of contract claim, even when the breach is motivated by malice and accomplished through fraud, he may not simultaneously recover punitive damages after being made whole on his contractual damages.  However, a party who has been aggrieved by fraudulent or malicious conduct which results in damages that differ from the damages sustained by reason of the breach of contract may assert an independent claim for such fraudulent or malicious conduct seeking whatever damages are appropriate for the independent claim, including punitive damages . . .”

The Court then reaffirmed its earlier opinion this year in Superior Steel, Inc. v. Ascent at Roebling’s Bridge, LLC, 2018 Ky. LEXIS 86 (Mar. 22, 2018), in which the Court similarly explained that a breach of contract claim based on negligence does not lie where no duty exists independent of the parties’ contract.

In sum, under Kentucky law, punitive damages are not recoverable for breach of contract even if the claim is based on tortious conduct.  Litigants must prevail on an independent tort claim to recover such damages.  It is also worth noting that in light of the Nami opinion, as well as the Court’s opinion in Superior Steel, litigants should avoid asserting “tortious breach of contract” claims unless an independent tort exists.  Such claims could be considered frivolous and made in bad faith.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

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