Attorney Casey Jones

Despite laws requiring drivers to carry insurance, we have unfortunately seen a number of cases recently involving accidents caused by uninsured or underinsured motorists. Luckily, most car insurance policies can provide some relief in these circumstances.

When does a UIM claim come into play?

An uninsured driver scenario is fairly self-explanatory – the driver who causes the accident doesn’t have insurance and, thus, collecting on a claim against him or her may prove difficult, so you have to go through your own auto insurance policy for compensation. An example of an underinsured driver, on the other hand, may be a situation where you are in an accident caused by another driver, and your medical bills and lost wages total around $40,000.00; however, the at-fault driver only has policy limits of $10,000.00. Your own auto insurance policy may kick in to cover the difference, as well as additional damages for pain and suffering. Of note, many underinsured motorist policies have specific conditions – for example, coverage may only “kick in” if the at-fault driver’s coverage is below a certain threshold, regardless of whether that threshold adequately compensates the victim.

“My insurance company is not offering me as much as I think the claim is worth. . .”

Many people operate under the reasonable but, unfortunately, mistaken belief that because it is their own insurance company that is responsible for paying a UIM claim, they should have an easier time receiving fair compensation.

“But we pay them ‘good money’ each month in premiums, and they work for us. Shouldn’t they be willing to pay more to make us whole?”

Many are surprised to learn that really isn’t the case.

We often hear complaints that the insurance company is offering an insultingly low settlement figure. It is not uncommon for our clients to have already received an offer before they reach out to us, and they do so because aren’t satisfied with the initial offer.

We can help make sure you submit an appropriate demand amount, provide all of the supporting documentation for your insurance company to make a reasonable and informed settlement offer, and frame your claim in a way that makes sense for the assigned adjuster, all in order to maximize your recovery.

. . . And if they still don’t offer a reasonable settlement figure?

Insurance companies are bound by a duty of good faith in investigating and evaluating first-party claims like UIM claims. If your insurance company unreasonably denies your claim, refuses to make a timely investigation and offer (i.e., drags their feet), or offers you an unreasonably low figure relative to your damages after exhausting all negotiations, you may have an additional claim for bad faith. If successful in bringing that claim, you may also be entitled to punitive damages, court costs, and/or attorneys’ fees, in addition to your recovery on the underlying accident claim.

We are here to help…

I often hear of car accident victims being afraid to involve an attorney for fear that their legal fees may “eat into” any settlement they may receive. While this is certainly a valid concern, working with counsel frequently has the opposite effect, ultimately. This is because we can often increase the “net” to you by framing your claim in a way that maximizes recovery and, possibly, getting your subrogation liens reduced where appropriate. We make it a priority to never take a case unless we believe we can “create value” for the client. Please feel free to reach out to me at (513) 943-5673 or casey@finneylawfirm.com if you’d like to set up a free consultation. I am also offering remote consultations to during this time to honor COVID-19 health concerns.

 

With the advent of the COVID-19 Crisis, Finney Law Firm and Ivy Pointe Title have quickly stepped to the plate, with technology that allows for the practice of law with appropriate social distancing, with attorneys who focus on practice areas to help their clients, and with cutting edge information on emerging programs to help businesses and individuals in need.

Technology allowing for electronic interaction

Finney Law Firm and Ivy Pointe Title  have carefully developed the tools to be prepared for a day such as this:

  • DocuSign allows for execution of documents from your computer.  By federal and state law, e-signed documents are fully enforceable as with “inked” documents. Our team is licensed and trained in DocuSign technology for all documents in which clients will allow an electronic signature.
  • Electronic notary.  Finney Law Firm and Ivy Pointe Title contracted with one of only a handful of licensed e-notaries in Ohio for exclusive provision of e-notary services. Using the platform DocVerify, we have the strongest technology to allow real estate closings and other transactions to proceed.  By Ohio law, it is permissible to have documents signed and acknowledged (notarized) without person-to-person interaction via electronic signature and electronic notary.
  • Electronic payments. We use e-billing and credit card payments (and wire transfers and EFTs) for clients who prefer this method of billing and payment.
  • Electronic discovery and electronic depositions. Your litigation does not need to stop because of the COVID-19 crisis. Most of the work pre-trial can still move forward using e-mail, Zoom.US or Microsoft Teams for depositions, and motion work that can be electronically filed with almost all Courts.
  • Work-from-Home. If you do need to visit our offices, you will find that most of our professionals are not at their desks. Rather, they are safely (for you and them) working from home with the latest technology including Microsoft Surface laptops, Microsoft Teams Video Conferencing, Microsoft Office 365 data in the cloud, so we can access your data from anywhere in the planet, but with tremendous Microsoft security technology and backups.

Practice areas to help your business

Our business lawyers are up to date and prepared to help you through the thicket of issues that arise or are heightened with the COVID-19 crisis:

Attorney Isaac T. Heintz is proficient in contract interpretation, including how to enforce or avoid obligations under a lease or other agreement. He has already written purchase agreements with COVID-19 contingencies to extend due diligence periods to the declared end of the crisis. As you might expect, Isaac has also had many clients initiate their estate planning, or finish long-delayed estate planning work.

Attorney Stephen E. Imm heads our employment law group, and is advising clients on a myriad of new COVID-19 legislation and addressing employment law claims under previously existing law and the new enactments.

Attorney Bradley M.  Gibson heads our litigation group which is dealing with a multitude of business-to-business disputes, including those arising because of the COVID-19 crisis.

Attorney Richard P. Turner runs Ivy Pointe Title and in that capacity has been using every tool at our disposal to continue to close your transactions “accurately and on time, every time.”  These include closings respecting social distancing, and we stand prepared to be one of the first agencies in Ohio to implement fully electronic closings.  We also can do drive-by closings where you come to our office and sign documents from your car, or we come to you and you can sign them on our car hood.

Attorney Christopher P. Finney heads our public interest practice, and the host of issues addressing government-to-business and government-to-individual interaction arising from the COVID-19 crisis.

CARES Act assistance for your small business

Congress just passed the CoronaVirus Aid, Relief and Economic Security Act, which includes the Paycheck Protection Program that will provide what essentially are grants to businesses with fewer than 500 employees and enhanced Economic Injury Disaster Loans (EIDL).

Attorney Rebecca Simpson Heimlich has been counseling clients through this program, and on Thursday night she joins other presenters on a panel addressing “CARES Act, Including Paycheck Protection and Funds for Businesses.”

Conclusion

We are working furiously to meet the needs of our clients in this fast-emerging crisis. Let us know how we can help you or your small business navigate these turbulent waters to come to the other side safely and profitably.

And our hope is that each of you remain healthy throughout this pandemic.

 

 

Ohio Dog Bite Statute – When Man’s Best Friend Isn’t So Friendly

During my first year of law school, we were assigned a research and writing project on the Ohio Dog Bite Statute but, until recently, I had not yet been faced with this legal issue in my practice. In revisiting this area of the law, I found I have a new appreciation for it, both in terms of being able to help my clients and because I now have two German Shepherds of my own. I also realized there are quite a few misconceptions out there as to when a dog bite/attack may be actionable.

Statutory language

The Ohio Dog Bite Statute provides in relevant part:

The owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit criminal trespass or another criminal offense other than a minor misdemeanor on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense other than a minor misdemeanor against any person, or was teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.

Ohio Rev. Code 955.28(B). In simpler terms, an “owner, keeper, or harborer” of a dog is strictly liable to anyone their dog injures, unless the injured person was trespassing, committing a criminal offense, or “teasing, tormenting, or abusing the dog on the Owner’s, keeper’s or harborer’s property” at the time of the injury.

Myth: “Dogs in Ohio get ‘one free bite.’”

Many believe that a dog owner (or keeper or harborer) is not liable to a person injured by their dog unless they had reason to know the dog was aggressive. This is often colloquially referred to as a “one free bite” rule. The idea is that the owner is not liable the first time it happens because he or she has no reason to know that the dog is capable of such behavior but, after that, the first bite serves as the “reason to know,” and the owner can be held responsible from that point forward.

Ohio does not have a “one free bite rule.” There is no requirement that the injured person prove negligence, or that the owner knew the dog was dangerous, or even that the owner did anything wrong whatsoever. This is often referred to as “strict liability.” In other words, the “owner, keeper, or harborer” of the dog is liable even if they aren’t at fault. See Allstate Ins. Co. v. U.S. Associates Realty, Inc., 11 Ohio App. 3d 242, 464 N.E.2d 169, 1983 Ohio App. LEXIS 11287 (Ohio Ct. App., Summit County 1983) (finding that R.C. 955.28, the dog bite statute, does not establish negligence per se; rather, the statute establishes liability without regard to fault or the dog owner’s negligence).

Myth: “I can’t be liable if it isn’t my dog.”

The Ohio Dog Bite Statute imposes liability on, not only owners, but also keepers and harborers. Individuals other than the owner of a dog have been found to be harborers or keeper under the statute in several cases throughout Ohio. See, e.g., Lewis v. Chovan, 2006-Ohio-3100 (Ohio Ct. App., Franklin County 2006) (pet groomer found to be a “keeper” under the statute even she was only temporarily exercising control over the dog); Buettner v. Beasley, 2004-Ohio-1909 (Ohio Ct. App., Cuyahoga County 2004) (while boyfriend was technically the owner, his girlfriend was considered a “keeper”); Sengel v. Maddox, 31 Ohio Op. 201 (Ohio C.P. 1945) (finding that a person who is in possession and control of the premises where the dog lives, and silently acquiesces in the dog being kept there by the owner, can be held liable as a “harborer” of the dog).

Exceptions to Liability

In addition to the explicit exceptions set forth in the statute (i.e., if the injured person is trespassing, committing a criminal act, or otherwise tormenting/abusing the dog), case law has carved out a couple of additional caveats. The first is that an injured person cannot recover if they were a harborer or keeper of the dog. For example, in the Lewis case cited above, a pet groomer was determined to be a “keeper” of the dog during the time it was in the groomer’s possession and control. In that instance, the pet groomer likely could not recover against the owner of that dog under the statute for any injury the dog caused while under the groomer’s possession and control – i.e., while he or she was a “keeper.” The same would presumably be true for a veterinarian. Similarly, as set forth in the above Buettner case, a live-in girlfriend can likely not recover against her boyfriend who is, technically, the owner of the dog. In other words, an owner is likely not strictly liable to a keeper or harborer under the statute for injuries that occur while the injured person is considered a keeper or harborer.

Landlord/Tenant Liability

Another niche of the case law interpreting the Ohio Dog Bite Statute exists relative to landlord/tenant situations, i.e., situations where an injured person seeks to hold a landlord liable for injuries sustained after an attack by a tenant’s dog. The cases throughout Ohio tend to be fairly fact specific as to this issue. Most courts have held that landlords can be liable if the attack occurs in a common area (such as a hallway or foyer). See Weisman v. Wasserman, 2018-Ohio-290, 2018 Ohio App. LEXIS 335 (Ohio Ct. App., Cuyahoga County 2018) (finding that a landlord was not entitled to summary judgment where the dog attack occurred in a hallway, which could potentially be considered a common area). The critical question is whether the tenant retained exclusive possession and control over the area in which the attack occurred. See Pangallo v. Adkins, 2014-Ohio-3082, 2014 Ohio App. LEXIS 3018 (Ohio Ct. App., Clermont County 2014) (landlord was not a harborer of the dog because the incident did not occur in a common area, but rather in an area where the tenant had sole possession and control).

It follows that landlord liability is perhaps more common in apartment complexes than, for instance, a situation where the tenant is renting an entire house (where there are likely not “common areas” and the tenant retains possession and control of the entire premises). Additionally, a landlord will generally not be liable where the landlord or lease explicitly prohibits dogs from being on the premises and does not know that about the dog, regardless of whether the attack occurs in a common area. See Lynch v. Lilak, 2008-Ohio-5808, 2008 Ohio App. LEXIS 4865 (Ohio Ct. App., Erie County 2008) (finding that the landlord could not be a “harborer” under the statute where the lease prohibited pets and the landlord did not know of the dog, or permit or acquiesce to the dog’s presence).

Practically speaking, how do these claims work?

Generally, when we evaluate cases, we focus on three key factors: liability, damages, and collectability. With the Ohio Dog Bite Statute, liability is typically a non-issue provided that one of the above-described exceptions does not apply. We also look at damages (such as medical expenses, lost wages, and anxiety when faced with dogs in the workplace). Often, the clients we represent in these cases were treated in an ER setting, were forced to miss some work, have scarring, etc. and are, thus, entitled to compensation for those damages in addition to pain and suffering. Where many cases become complicated is the collectability aspect – in other words, even if we get a judgment against the liable party, will they be able to pay it or do they have assets to which we could attach in satisfaction of that judgment? However, many homeowner’s insurance policies cover liability for injuries caused by the homeowner’s dog, making the collectability question a bit of a non-issue as well.

Conclusion

We understand that it can be difficult to navigate this fairly nuanced area of the law, which, as we’ve seen, is full of misconceptions, exceptions, and caveats. If you have been injured by a dog, we would love to meet with you and walk you through some of your options – at no charge.

For help defending against or pursuing a dog bite claim, contact Casey Jones at 513.943.5673.

 

 

Many times, liability in car accidents is not in question. For example, in Ohio, if someone rear ends you, they are almost always cited for failure to maintain an assured clear distance ahead (often abbreviated as “ACDA”) codified in O.R.C. 4511.21(A). Liability is much easier to prove where the allegedly at-fault driver has been cited. That proof may come even easier where the at-fault driver has admitted to the charges or paid the fines associated therewith. In cases where liability is not at issue, the claim becomes primarily a question of damages (i.e., medical bills, lost wages, pain and suffering, etc.), which can often (though not in every case) be resolved with the at-fault driver’s insurance company without the need for litigation. See (LINK TO PI/MED MAL CONSIDERATIONS ENTRY) for more information on statutes of limitation and other considerations.

However, there are instances where liability is in question, especially where no citations have been issued.  The other driver and/or his or her insurance company may dispute that it was his or her actions that caused the accident. Or, perhaps more often, they may argue that you were “comparatively negligent” (i.e., partially at fault). Ohio exercises a Modified Comparative Fault rule, meaning if the plaintiff’s liability exceeds that of the defendant, he or she may be barred from recovery. See O.R.C. 2513.33. Stated simply, if you are deemed to be 51% or more negligent, you can be absolutely barred from recovery – you get nothing. See Power v. Boles, 110 Ohio App. 3d 29, 44-45 (10th Dist. 1996). If you are deemed to be 50% or less negligent, you can still recover, but your recovery is determined according to your percentage of fault. See id.  For example, if you are in an accident and suffer $100,000.00 of damages, but you are deemed to be 40% liable, you may only receive $60,000.00.

Because the percentage by which you are deemed to have been comparatively at fault may operate to bar any recovery or drastically reduce your recovery, this is often a factor to which we give significant weight when evaluating your claims and negotiating with the other driver’s insurance company. In the foregoing example, you may not be thrilled with the idea of only recovering 60% of your damages, and understandably so. However, this exposes you to some risk because, if a jury ultimately determines that you are even more at fault and, thus, assigns to you 55% of the liability, you could end up receiving nothing. Accordingly, any possibility that you could be assigned a portion of the fault may likely warrant some serious consideration.

Attorney Casey A. Taylor

Consider this scenario:

You were recently involved in a car accident that was not your fault. You were injured and have, therefore, incurred some medical expenses and had to take some time off of work, resulting in lost wages. Your injuries have hindered you from engaging in your normal day-to-day activities. You’ve started to receive medical/ambulance bills, letters from insurance companies, etc.

Or perhaps you think you may have a claim for medical or dental malpractice…

What do you do next? How do you go about getting compensated for your injuries?

Unfortunately, these situations are all too common. The underlying incident itself is a continuous source of stress, and trying to navigate the process of submitting an insurance claim or filing a lawsuit becomes even more overwhelming. Most people, understandably, don’t know the statute of limitations on a personal injury or medical/dental malpractice claim, nor do they understand how subrogation interests work or what “subrogation” even means (LINK TO SUBROGATION BLOG ENTRY). This is where having an experienced and knowledgeable attorney to represent your interests and help you navigate these processes can truly be invaluable.

Statute of Limitations

First, the law requires you to bring any claims you have within a certain period of time, referred to as a “statute of limitations.” For personal injury and medical/dental malpractice claims, the statutes of limitations are relatively short. If you aren’t aware of this, it is easy to miss out on your opportunity to bring your claims. In Ohio, you have two years for personal injury and only one year for medical/dental malpractice. O.R.C. 2305.10(A); O.R.C. 2305.113(A).

When Time Starts to Accrue and the Discovery Rule

For personal injury claims, such as a car accident, the clock generally starts to run the moment that the incident occurs.  However, for medical/dental malpractice, the law recognizes a “discovery rule.”  The discovery rule operates to toll the statute of limitations so that it does not begin to run until you “discover” the negligence that gives rise to the claim. See Oliver v. Kaiser Cmty. Health Found., 5 Ohio St. 3d 111, 113 (1983). The discovery rule is justified in these types of cases because “[t]hat [the plaintiff] has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.” Rotella v. Wood, 528 U.S. 549, 556 (2000). In simpler terms, you may not even know something is wrong (for example, that your doctor missed a diagnosis or left a surgical instrument inside of you during an operation) until months or even years later – the law does not hold that time during which you didn’t know anything was wrong against you.  However, the discovery rule does not extend to “a plaintiff’s ignorance of his legal rights,” but only “his ignorance of the fact of his injury or its cause.” Id. at 555-56. Accordingly, courts will not recognize “I didn’t know about the statute of limitations” as an excuse for failing to bring your claim(s) within that allotted time period.

Okay, so you’re still within the statute of limitations… now what?

Creating Value for Our Personal Injury and Medical/Dental Malpractice Clients

Depending on the extent of your injuries, the amount of damages, whether liability is at issue, the current level of evidentiary support, etc., our firm often recommends varying and dynamic approaches to these situations. In some cases, a demand letter sent to the negligent party and/or its insurance provider is often the best first route. In a demand letter, we outline your claims, your evidence, your damages, etc., and offer to release that party from the viable claims you have against it in exchange for a certain amount (which we can help you reasonably determine based on somewhat universal methodology often used by legal professionals and insurance companies alike). However, in some cases, a demand letter is not feasible or would likely be futile. In this instance, or in the event that the at-fault party fails to respond to the demand letter (which sometimes happens), we may suggest moving forward with litigation. We can also help you determine whether your claims will require the testimony of an expert witness (some cases require expert physician testimony, an accident reconstructionist, an economist, etc. to prove your claims and/or damages), as well as discuss other strategic considerations. In any event, we are able to shift the burden and stress off of you (the client) and assume that burden for you.

We take over the preliminary steps, such as contacting insurance companies, requesting and reviewing medical records and billing statements, etc.  If we are able to successfully negotiate a settlement on your behalf, we can also handle drafting or reviewing settlement offers/releases and take care of paying any subrogation liens you may have against you.  Perhaps most significantly, we are often able to do so on a contingency basis (meaning that you pay little to nothing out of pocket – our legal fees come out of the amount we recover on your behalf and only in the event that we are successful in getting you something). If you have been involved in an accident or think you may have a claim similar to those discussed in this entry, please do not hesitate to reach out to us.

Until the Las Vegas shooting, we believe this was the largest domestic shooting incident in 2017, at the Club Cameo nightclub on Kellogg Avenue in Cincinnati.

Jennifer Edwards Baker of Fox19.com and the Enquirer.Com has the story today on our new suit on behalf of the estate of one of the two deceased in the shooting, O’Bryan Spikes: New Cameo negligence suit to be filed against Club Manager, police, City

We will post the Complaint when it is filed.

For more information, call Brad Gibson at 513-943-6661.

Many are surprised to learn that, if they receive a settlement or reward on a personal injury or medical malpractice claim, they are required to essentially “pay back” any party that paid medical bills on their behalf. This is called subrogation, and insurers may have both a contractual and an equitable right to it. Blue Cross & Blue Shield Mut. of Ohio v. Hrenko, 72 Ohio St. 3d 120, 647 N.E.2d 1358 (1995); Warmack v. Arnold, 195 Ohio App. 3d 760, 765 (1st Dist. 2011).

For example, if Joe gets rear-ended and suffers $10,000 worth of medical expenses (note: this is separate and apart from any property claim he may have for damage to his vehicle), $5,000 of which are paid by his auto insurance, $4,000 of which are paid by his health insurance, and $1,000 of which he pays out of pocket, Joe is required to pay his auto insurance and health insurance companies back for any amounts they paid on his behalf (here, $5,000 and $4,000 respectively).

This information often leads to a certain degree of panic to the tune of “What if I don’t get any settlement or I lose my case? Do I still have to pay them back?!” The answer is no. If you haven’t signed any sort of release interfering with the insurer’s rights, the insurer is free to pursue payment from the at-fault party. If there is a lawsuit filed, the insurer should be put on notice of that action and can protect their own interests accordingly.

The idea is just that an insured generally cannot interfere with the insurer’s right to subrogation, so any settlement ultimately needs to be approved by the insurer. See generally Chemtrol Adhesives, Inc. v. American Mfgrs. Mut. Ins. Co., 42 Ohio St. 3d 40, 537 N.E.2d 624 (1989) (explaining that where an insured releases his rights to claim injury under a settlement agreement, the subrogation rights of the insurer are effectively barred).  Perhaps the most common instance where an insurer refuses to consent to a settlement is where the settlement amount is less than what the insurer paid and, thus, would not compensate it. See, e.g., Erie Ins. Co. v. Kaltenbach, 130 Ohio App. 3d 542 (10th Dist. 1998) (requiring the insured to pay back the insurer in the full amount of the settlement where the insured accepted settlement of $4,462 despite subrogation liens totaling $5,000).

However, in many cases, insurance companies are actually willing to reduce the amount they will accept in satisfaction of their subrogation lien if it will help to inspire a settlement. This sometimes results in the injured/insured walking away with more money in his or her pocket.

Navigating the waters of insurance settlements, releases, subrogation liens, subrogation reductions, etc. can be tricky. This is where having an attorney with knowledge and experience in these matters can create immense value. Our firm has successfully handled various types of personal injury and medical malpractice claims. I would be happy to discuss with you any claims you believe you may have to determine if we can create value for you.

Yesterday, the family of O’Bryan Spikes announced that they had retained attorneys Chris Finney and Brad Gibson to represent them and the Estate of O’Bryan Spikes in their claims against those responsible for the Club Cameo tragedy.

Read about that here:

Cincinnati Enquirer >> Family of Cameo shooting victim prepares to sue

WCPO >> Cameo Night Club shooting victim’s family to pursue civil claims for his death

Local 12 >> Family of Cameo shooting victim seeks accountability

WLWT >> Cameo Nightclub shooting victim’s family to pursue civil suit in man’s death

WXIX >> Cameo Night Club shooting victim’s family prepares to sue, seeks public’s help

WVXU >> Family Of Cameo Shooting Victim Preparing Lawsuit

This blog will keep you updated on developments in this case as they occur.

The Supreme Court of Ohio is scheduled on April 7, 2017 to hear arguments in the case of Dennis Stewart, Individually, and as the Administrator of the Estate of Michelle Stewart, Deceased v. Rodney E. Vivian, M.D., et al., 2016-1013The issue before the court is whether Ohio Revised Code 2317.43, known as The Apology Statute, makes statements of fault or liability made by medical providers while apologizing or commiserating with patients and their families also inadmissible at trial.

The Ohio Apology Statute, O.R.C. 2317.43, was enacted in 2004 with the intention to improve relationships between providers and patients in the case of errors by allowing medical providers to commiserate with patients and their families with the protection that their words would not later be used in a legal action against them.  O.R.C. 2317.43(A) reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

The question before The Supreme Court in Stewart is whether or not statements made by a provider expressing fault or liability while also expressing “…apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence…” are also to be excluded as evidence.

At issue in the underlying case, is whether statements made by the defendant doctor to the plaintiff’s family in the ICU are admissible. The plaintiff alleged that the doctor’s statements were admissions of fault, while the doctor argued it was his intention to apologize about what happened. The doctor filed a motion in limine to exclude testimony concerning this conversation from the trial. The trial court determined that the doctor’s statements were an attempt at commiseration with the family, however ineffective, and that a statement of fault can be included in an apology.

On appeal, the Twelfth District reviewed a 2011 decision of the Ninth District Court of Appeals in the case of Davis v. Wooster Orthopaedics & Sports Medicine, Inc., et al.  In that matter, Leroy Davis, husband of Barbara Davis, deceased, sued Dr. Michael S. Knapic and Wooster Orthopaedics & Sports Medicine, Inc. after Dr. Knapic completely severed Mrs. Davis’s left common iliac artery and lacerated her iliac vein during a lumbar microdiscectomy.  Mr. Davis and his daughter both testified at trial that Dr. Knapic told them he had nicked an artery during the surgery and that he took responsibility for it.  After the jury awarded Mr. Davis $3 million in damages, Dr. Knapic appealed on the grounds that the trial court admitted apology evidence in violation of R.C. 2317.43.  Mr. Davis argued that the court did not admit apology evidence, as R.C. 2317.43 does not prohibit the use of statements of fault, responsibility, or liability. Dr. Knapic argued, however, that a distinction could not be drawn between an expression of sympathy and an acknowledgement of fault because doing so would violate the intent of the statute; the word “apology”, he argued, includes an expression of fault.  Mr. Davis argued that the words of the statute did not intend to exclude a direct admission of fault and responsibility.

In the Davis decision, the Ninth District Court of Appeals recognized that the word “apology” could include “an implication of guilt or fault”, but also noted that upon hearing that someone has died, it is common to say, “I’m sorry” without the assumption of being at fault in the person’s death.  The court, therefore, determined that the word created ambiguity.  In the end, the court opined that when reading the word “apology” in the context of the other words of the statute, “…sympathy, commiseration, condolence, compassion, or a general sense of benevolence…”, that do not express a sense of fault, they believed the statute “…was intended to protect apologies devoid of any acknowledgement of fault.” The appellate court, therefore, ruled that the trial court had correctly admitted the testimony of Mr. Davis and his daughter.

The Twelfth District agreed with the Davis decision in that the word “apology” creates ambiguity in the statute.  They disagreed with the Davis court, however, on the intention of the statute.  The Twelfth District determined that the statute was enacted to provide medical providers the ability to apologize to and to console patients and families without the fear of legal action.  The Stewart court opined that the intent of the statute was to exclude all statements of apology, including those of fault, because a common usage of “apology” is to admit a wrong while expressing regret.  The court further noted that since the statute provides that “any and all” statements expressing apology are to be inadmissible, it can be resolved that the intention was to exclude statements of fault as well.

The Ohio Supreme Court’s decision should help clarify the ambiguity in the statute and resolve the conflict that exists amongst the district courts. It will be interesting to see how the Court interprets the statute in light of evidentiary rules that allow admissions of fault to be to be introduced at trial.

 

 

As we have grown, the vision of the Finney Law Firm is sharpening for our clients and the public: A broad array of services offered in one firm, each practice area delivered in a quality fashion.

At our core, we are a real estate firm, with experienced transactional attorneys, a title insurance company that insures residential and commercial titles, and commercial litigators who can address virtually every aspect of disputes relating to real estate: Eviction, foreclosure, title disputes, easement disputes, construction disputes and mechanics lien claims, as well as complex real estate litigation.

Beyond that, we offer quality estate planning and probate administration and our transactional team rounds our its services with corporate formation and development, including acquisitions, dispositions and financing.

Isaac T. Heintz, Kevin J. Hopper, and Eli Krafte-Jacobs, along with paralegals Tammy Wilson and Misty L. Winkler, and Richard P. Turner at the title company, lead our transitional team day in and day out.

Our litigators are well-known for our public interest practice — handing legislative and regulatory matters aggressively, confronting government officials who would illegally interfere with their life, their business and their fortune.  Three times we have ascended to the U.S. Supreme Court, and three times we won the relief we sought with 9-0 victories there.   We apply this same sophistication and vigor to commercial litigation, personal injury, wrongful death and medical malpractice matters.

Bradley M. Gibson, Stephen E. Imm, Julie M. Gugino, and Casey A. Taylor along with paralegal Brandy E. Fitch are our quality litigation team.

Finally, we are proud to recently have expanded our litigation services to include labor and employment law with experienced litigator Stephen Imm.

When a client asks “do you do that,” I am proud to respond “yes, and we do it well.  Let me introduce you to …..”

Let us know how we we can help with your business or personal opportunity or challenge.  It is with you in mind that we have assembled this team of quality practitioners.