Mazanec, Raskin & Ryder Co., L.P.A. is pleased to announce that Shafiyal Ahmed and Tyler B. Schlimme have joined our firm as Associate Attorneys, and Darlene McMormick as Director of Law Firm Administration.
Mr. Ahmed focuses his law practice on business and commercial law matters, including the defense of employers, business and commercial entities, and licensed professionals. He has served as lead trial counsel on 80+ cases throughout central and southern Ohio. Shafiyal earned his Juris Doctorate from Capital University Law School and received his Bachelor of Arts degree from The Ohio State University. He is a member of the Ohio State Bar Association and the U.S. District Court, Southern District of Ohio.
Mr. Schlimme focuses his law practice on the defense of commercial trucking and commercial coach carriers, general liability, and professional liability matters. Before joining MRR, Tyler represented employees in discrimination, wage and hour, and contractual matters. Tyler earned his Juris Doctorate from the The University of Akron School of Law and also received his Bachelor of Arts degree from The University of Akron. He is a member of the Ohio State Bar Association.
Darlene McCormick joins MRR as Director of Law Firm Administration. She is responsible for the administrative and financial operations of the firm. Darlene applies her career experience to improving operational stability, efficiency and profitability, staff management, technology development and team building. She is a member of the Association of Legal Administrators (ALA), and works as a Volunteer for Seeds of Literacy.
MRR Partner, Steve Kelley, Senior Attorney, Cara Wright and Partner, Frank Scialdone recently obtained affirmance of the trial court’s grant of summary judgment to our legal malpractice client in the Eleventh District Court of Appeals.
While the trial court found the Plaintiff produced enough evidence to create a question of fact on an alleged breach of the standard of care, it found the Plaintiff failed to present any evidence that the alleged breach proximately caused damages.
Careful examination of all elements of a claim must be undertaken to properly defend any claim. MRR stands ready to defend any professional liability claim including claims against lawyers, architects, engineers, accountants, insurance agents/brokers and real estate professionals. Please contact our firm to let us know if we can be of service to you.
Mrs. Keene focuses her practice on insurance coverage issues and public sector law. She has a wide range of experience in various insurance defense practice areas, including Bad Faith and Commercial General Liability matters. Alyssa earned her Juris Doctorate from Cleveland-Marshall College of Law and received her Bachelor of Arts degree from John Carroll University. She is a member of the Ohio State Bar Association and Cleveland Metropolitan Bar Association.
Ms. Herman focuses her practice in the commercial trucking, premises liability and commercial general liability areas. She also represents public entities in a wide array of municipal matters. Amy earned her Juris Doctorate from the Cleveland-Marshall College of Law and received her Bachelor of Arts degree from University of Dayton. She is a member of the Ohio State Bar Association and Cleveland Metropolitan Bar Association, a Cleveland Marshall Law Alumni Association Trustee and Ladder Down Committee Member.
In the recent case of City of East Liverpool v. Owners Insurance Company, et al., 7th Dist. Columbiana No. 20 CO 0009, MRR Attorneys Joseph F. Nicholas, Jr., Frank H. Scialdone, George V. Pilat, and Michael P. Byrne demonstrated that our insurance agency clients properly procured the insurance coverage requested by their customer. It was the customer’s own failure to request coverage for a particular structure, and not ambiguity in what was being requested, that caused the lack of coverage. The Seventh District also offered some notable interpretation of the ever evolving application of the statute of limitations in matters of professional liability.
This appeal arose out of Plaintiff City of East Liverpool’s lawsuit against its insurer Defendant Auto-Owners Insurance; its insurance agencies and agent (the Agency Defendants); and Defendant Crounse Corporation. Specifically, a passing barge owned by Defendant Crounse Corporation crashed into a concrete water-intake structure owned by the City of East Liverpool and located dozens of yards off the shoreline in the Ohio River. The City’s claim against the tortfeasor Crounse Corporation was settled. Despite that resolution, the City tried to impose liability on the Agency Defendants even though it never specifically requested coverage for the Intake Structure. Indeed, over the three-plus decades the Agency Defendants provided insurance services for the City, the City never sought to obtain coverage and never paid premiums for the Intake Structure, until after it experienced the loss. Accordingly, the trial court granted the Agency Defendants’ motion for summary judgment, holding that the City could not impose liability on the Agency Defendants for its own failure to request coverage.
The City appealed alleging, among other things, that the term “Intake Well House” is reasonably susceptible to more than one interpretation, thereby creating a genuine issue of material fact. The Seventh District determined that reasonable minds could conclude that the language used was clear and unambiguous as the plain and ordinary meaning of “Intake Well House” is the well house that connects to the intake. This definition corresponded to the street address listed for the well house that is connected to the Intake Structure. Moreover, the City was the first party to use the term “Intake Well House” and specify that it was located at 2220 Michigan Avenue. The Court asserted that the City cannot now claim that its own term, first used by it, was ambiguous.
The Court further explained that even if it were to conclude the term “Intake Well House” was ambiguous, the use of parol or extrinsic evidence would still limit the coverage to the well house structure, not the intake. A third-party report generated at the City’s request to provide estimated replacement costs for the major structures owned by the Water Department lists the two (Intake Structure and Well House) separately. In addition, the replacement value of the Intake Structure listed in the report was $750,000. The replacement value of the Well House in that same report was $115,800. Despite the report’s separate listings, the insurance contract did not list the Well House and Intake Structure separately. The contract also did not insure the “Intake Well House” for the combined amount of the Well House and Intake Structure. Instead, the contract covered the “Intake Well House” for an amount equivalent to the amount of the Well House alone; the insurance coverage was for approximately $150,000. As such, the Court further concluded that given the difference in the values between what was covered and what the structures were worth, it is glaring as to what the intent of the parties was by the use of the phrase “Intake Well House”; it was to only cover the Well House where the intake connects. Had the intent been to also cover the Intake Structure, it would have been listed separately as it was in the report, or it would have been valued at a much higher amount. Accordingly, The Seventh District upheld the trial court’s holding that the City could not impose liability on the Agency Defendants for its own failure to request coverage.
Finally, in addition to asserting that the City had failed to request coverage for the Intake Structure, the Agency Defendants also argued that the City’s claim was barred by the applicable statute of limitations. While the Court did not use the statute of limitations as the basis for its decision, it did provide some analysis of the application of the statute of limitations under the circumstances. This analysis added some interesting legal dicta to the ever evolving application of the statute of limitations in matters of professional liability. Specifically, the Ohio Supreme Court in LGR Realty, Inc. v. Franks, London Ins. Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 24 addressed the four-year statute of limitations for professional-negligence claims. Therein, the Ohio Supreme Court concluded that the “delayed damages rule” does not apply to negligent procurement or negligent misrepresentation claims where the terms of the policy when issued contained a provision specifically excluding the type of claim that the insured alleged it believed was covered by the policy. In other words, when negligent procurement and misrepresentation claims are alleged, the alleged damage occurs the moment the contract is entered and the insured becomes obligated to pay a premium for the insurance policy that provided less coverage than it believed it would receive.
The Agency Defendants argued that based upon LGR Realty, the damage to the City occurred in 1986 when insurance was procured that did not include coverage for the Intake Structure as the City alleged it requested, and as such, the four-year statute of limitations had long since expired before the City filed suit in 2018. In analyzing LGR Realty, the Seventh District commented that a renewal policy could represent a new contract separate from the initial policy, indicating that damage could occur not only upon procurement of the initial policy, but later upon renewal as well. However, while again, the Court did not rely on the statute of limitations to arrive at its decision, it did determine that even though the policy had renewed many times, the coverage for the “Intake Well House,” and the lack of coverage for the Intake Structure, was constant, and opined that “[t]his seems to indicate that the action is barred by the statute of limitations.”
This legal dicta interpreting the LGR Realty decision supports the proposition that so long as the pertinent portion of the policy remains constant for the requisite 4 years, the statute of limitations will function to bar a claim arising from that portion of the policy. This subject has the potential for further development as additional appellate courts interpret and apply LGR Realty to various professional liability matters.
More details about this case can be found in The Opinion & Judgement Entry. If you have questions related to this case or need legal advice, please contact Michael Byrne, Joe Nicholas, George Pilat, or Frank Scialdone at the law offices of Mazanec, Raskin & Ryder Co., L.P.A.
On March 16, 2021, Governor DeWine signed into law Senate Bill 13 which has four significant implications on civil causes of action in Ohio; the creation of a statute of repose for legal malpractice actions, a shortened statute of limitations for causes of action based on contracts, the creation of a statute of limitations for causes of action arising out of consumer transactions, and modification of Ohio’s “Borrowing Statute.”
Statute of Repose for Legal Malpractice
Currently, Ohio law includes a statute of limitations for claims of legal malpractice that requires those causes of action to be brought within one (1) year of the date of discovery of the alleged malpractice. However, depending upon when the alleged malpractice is discovered, a claim for legal malpractice could be made against a lawyer at any time for the rest of their life, and up to one (1) year after they die. The passage of this law establishes a statute of repose of four (4) years for malpractice actions against attorneys in the state, affording them time limit protections already afforded to other licensed professionals, such as physicians, nurses, and architects who practice in Ohio.
A statute of repose, in contrast to a statute of limitations, does not take in to consideration when the injury is discovered, but instead will bar claims after the passage of a period of time. As such, if an injury is discovered five (5) years after the act or omission occurred, it would be barred by the statute of repose. This provides certainty to legal professionals who will no longer have perpetual fear of suit because a former client could theoretically discover an injury at any time. Similar to other statutes of repose in Ohio, there would be exceptions for certain disabilities, and additional time to file if a party discovers the injury in the last year that could not have been discovered earlier.
Shortened Statute of Limitations for Contracts
In order to provide more certainty for business owners, more opportunity for business growth, and thus, make Ohio more business friendly, the law also shortens the statute of limitations for causes of action based upon written contracts from eight to six years, and causes of action for oral contracts from six (6) to four (4) years. The Ohio legislature has now reduced the amount of time for bringing causes of action based upon written contracts twice in the past decade, whereas prior to 2012, Ohio had maintained a fifteen (15) year statute of limitations on such causes of action. While this seems to be drastic change over a short period, it is in keeping with the average, as Ohio will now be in line with twenty-two other states with the same six (6) year limitation period. The provisions will become effective on June 14, 2021. However, for causes of action that have accrued prior to this effective date, the period of limitations shall be six (6) or four (4) years from the effective date of the bill or the expiration of the period of limitations in effect prior to the effective date, whichever occurs first.
Statute of Limitations for Consumer Transactions
The law further creates a six (6) year statute of limitations for contracts in consumer transactions, whether or not they are in writing. This limitations period will be added to O.R.C. 2305.07 and would begin accruing thirty (30) days from the last charge or payment by the consumer. Exceptions to the new and shortened statute of limitations periods include actions relative to real property and commercial paper.
Modifications to Ohio’s “Borrowing Statute”
In causes of action arising from another state where the other state’s statute of limitations has already expired, the Ohio Borrowing Statute (O.R.C. 2305.03) applies to allow Ohio courts to “borrow” the statute of limitations from the other state to bar the cause of action and prevent forum shopping. The new law narrows the applicability of the statute by limiting its applicability to only tort actions, whereas it was previously applicable to all civil actions. In other words, only actions seeking damages for injury, death, or loss to person or property, and not damages for breach of contract.
The law further adds sections relative to post-default and post charge-off interest in consumer transactions in an effort to reduce claims brought in Ohio attempting to use a neighboring state’s interest rate if that state’s statute of limitations has run. Notably, the modifications to the borrowing statute would take retroactive effect to the dates of the passing of the Ohio Tort Reform Act, April 7, 2005.
With these new changes shortening the time in which claimants can bring a cause of action, it is important to consult with an attorney to ensure that a potential action is commenced timely. Please feel free to contact any of our attorneys with any questions you might have.