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MRR Continues Growth in Columbus with Addition of Former Ohio Supreme Court Justice Andy Douglas

Former Ohio Supreme Court Justice Assumes Of Counsel Role in Firm’s Columbus Office

Mazanec, Raskin & Ryder Co., LPA is pleased to announce that Former Ohio Supreme Court Justice Andy Douglas has joined the firm’s Columbus office as Of Counsel in the Public Sector & Business Law Groups. Douglas joins MRR to lend his extensive knowledge of the public and private sector landscape in Ohio, along with his depth and breadth of experience as an Ohio Supreme Court Justice, having served three terms on the high court from 1985 to 2002.

Joseph F. Nicholas, Jr., MRR President and Managing Partner said of Justice Douglas’ addition to the team, “Andy is very well known and highly respected for his deep and far-reaching understanding of the many types of issues faced by our public sector and business clients. We are honored to have him on board and look forward to be able to call on his knowledge and experience that will surely benefit our clients.”

His many accomplishments include serving as special counsel to the Attorney General of Ohio, nine-time elected Toledo City Councilman, as well as working as an adjunct assistant professor at Ohio Dominican College and the University of Toledo Community and Technical Colleges. Justice Douglas served in the U.S. Army Infantry and Signal Corps, from 1954-1956, where he obtained the rank of first lieutenant. He also was a partner with the law firm of Winchester & Douglas in 1960 where he practiced law in Toledo and Lucas County for 20 years, before being elected to the 6th District Court of Appeals in 1980.

Since 2009, Douglas has focused his practice on Complex Litigation, Business Law, and Public Sector Law.

He is a member of the Ohio State, Columbus, Lucas County, and Toledo Bar Associations, in addition to the American Judicature Society, National Political Honor Society, The North Toledo Oldtimers’ Football Association (Trustee), and The Old Newsboys Goodfellow Association. Douglas earned his law degree from The University of Toledo – College of Law.

Over the course of his three terms on the Ohio Supreme Court, Justice Douglas published more than 900 judicial opinions, and he was regarded by many of his colleagues in the legal profession as one of the most intelligent and best-prepared members of the high court during his service.

“His unique understanding of federal government and judiciary procedures along with his reputation within the State and Columbus area are strong assets for our firm,” said Doug Holthus, MRR’s Columbus Office Administrative Partner. “We are thrilled to have him on our team.”

Larry Stelzer joins MRR’s Columbus Office

MRR is pleased to announce that Lawrence J. Stelzer, Jr. (Larry) has joined the firm’s Columbus office, where he will focus his practice on Business & Commercial Law, Employment & Labor, and General Liability defense. Mr. Stelzer has extensive experience providing counsel on legal matters relating to civil litigation, business, insurance, employee benefits, and government affairs.

Prior to joining MRR, Larry served as the Vice President of Legal Affairs for InHealth Mutual; general counsel for Simplifi ESO, LLC; and general counsel for the Ohio Council of Retail Merchants.

MRR School Alert: Teacher’s Failure to Enter Grades Constitutes Good and Just Cause for Termination

By: Stacy V. Pollock

Ever since the Ohio General Assembly amended the state’s teacher termination statute (R.C. §3319.16) years ago to reference a “good and just cause” standard, school boards have struggled to understand what constitutes “good and just cause.” Last week, an Ohio state court of appeals confirmed that a teacher’s failure to enter her student’s final grades constitutes “good and just cause”, and thus is a terminable offense under R.C. §3319.16.

In Thomas v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-4231 (2nd Dist., Oct. 19, 2018), the Board of Education initiated termination proceedings against a teacher on four counts including a count of failure to enter final grades for her students. Pursuant to her statutory rights, the teacher demanded an administrative hearing. A Referee took three days of testimony and evidence, and ultimately recommended no termination on all counts except on the charge that the teacher failed to enter final grades for her students.

The Board reviewed the hearing transcript and evidence, rejected the recommendation on the first three counts, and found that all counts were sufficiently supported so as to constitute good and just cause for termination under R.C. §3319.16. As she was permitted to do, the teacher appealed the Board’s decision to the common pleas court. The teacher argued, in part, that the intent of §3319.16 is not served if the Board can reject the Referee’s findings without an explanation.   The trial court may only reverse a board’s order of termination of a teacher’s contract where it finds that the board’s termination order is not supported by or is against the weight of the evidence. The trial court vacated the Board’s Order as to each of the charges except the charge relating to the teacher’s failure to enter final grades.

The trial court affirmed the Board’s decision to terminate based upon the charge of her failure to enter her students’ final grades. The Ohio Second Appellate District reviewed the trial court’s decision to ensure that the trial court had not abused its discretion. The Second District held that the trial court had not abused its discretion.

Like the Referee, the Board and the trial court, the Second District determined that the teacher’s failure to enter final grades into the school’s electronic grading system was sufficiently good and just cause for termination. The evidence did not support the teacher’s explanation that she was unfamiliar with the electronic system used for grades and was therefore unable to submit the grades. The teacher knew that the grades were due, knew that the final grades were critical to students, and she knew that the grades would be due a month before their due date.  Yet, she made scant effort to input the grades on time.

While this matter ultimately was determined in favor of the Board (pending any possible appeal by the teacher to the Ohio Supreme Court), the Board spent over two years of energy and possibly significant financial resources defending the termination. Boards are encouraged to stay apprised of court decisions that assist in defining the §3319.16 “good and just cause” standard.  Mazanec, Raskin & Ryder (MRR) will continue to keep an eye on any other noteworthy cases and report them, accordingly.


For more information on this matter or any other school law questions, contact Stacy at spollock@mrrlaw.com or 614.324.0163.

Stacy is a Partner in MRR’s Columbus office and is a certified specialist in employment and labor law, in addition to a certified Professional in Human Resources. She has considerable experience in education law, representing schools and school administrators involving employee and student disciplinary matters. Stacy also advises public and private employers in matters involving leave and discipline issues, personnel policy matters and labor negotiations and arbitrations.

 

MRR Alert ~ Ohio Supreme Court Makes it Clear: Faulty Work is not Fortuitous

By: Chenee M. Castruita

On October 9, 2018, The Ohio Supreme Court issued its anticipated Decision in Ohio Northern University v. Charles Construction Services, Inc., et al., Slip Opinion No. 2018-Ohio-4057 holding that a subcontractor’s faulty work is not an “occurrence” under a commercial general liability (“CGL”) policy. The Court determined that in the commercial construction setting, an insurer underwriting and issuing CGL coverage is not required to defend or indemnify its policyholder or any named insured against claims for property damage caused by a subcontractor’s faulty workmanship.

A Review of Westfield Inc. Co. v. Custom Agri Sys., Inc. (2012) 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269

In reaching this Decision, the Court re-visited its 2012 holding in Westfield Inc. Co. v. Custom Agri Sys., Inc. In this earlier case, Custom Agri, as a subcontractor, had allegedly faultily constructed a steel grain storage bin. Custom Agri was an insured under a CGL policy issued to it by Westfield Insurance which covered property damage caused by an “occurrence.” Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269 at ¶ 3.At the trial court level, Westfield intervened, seeking declaratory judgment and a determination that it had no duty to defend or indemnify Custom Agri, inasmuch as all claims were related to Custom Agri’s own work and did not involve “property damage” caused by an “occurrence”, as those terms were defined within the Westfield policy. Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057 at ¶¶ 13-15, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269.

The Ohio Supreme Court ultimately decided that the Westfield’s policy definition of “occurrence” as being an “accident, including continuous or repeated exposure to substantially the same general harmful conditions” did not include property damage caused by the insured contractor’s own faulty work. Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269 at ¶¶ 11-14. The Court reasoned that because an “accident” inherently involves fortuity, and faulty work is not fortuitous, there was no coverage under the Westfield CGL policy related to claims for property damage caused by faulty work. Id. at ¶ 18.

While Custom Agri Sys. was a subcontractor and its policy may have included a products-completed operations-hazard (“PCOH”) clause as well as a subcontractor clause, the Court determined that these separate provisions were not addressed directly. Now, and in its most recent Decision on the issue, the Ohio Supreme Court has directly addressed the effect of PCOH and subcontractor clauses. Id. at ¶ 19.

 

Ohio Northern University v. Charles Construction Services, Inc., et al. (2018)
Slip Opinion No. 2018-Ohio-4057

Factual Background
In Ohio Northern University v. Charles Construction Services, Inc., et al., Ohio Northern University contracted with Charles Construction Services, Inc. to construct the University Inn and Conference Center. The contract required Charles Construction to maintain a CGL policy that included a PCOH clause. Charles Constr. at ¶ 4. Charles Construction obtained a CGL policy with both a PCOH clause as well as a subcontractor clause from Cincinnati Insurance Company. The policy included terms specific to work performed by subcontractors. Charles Construction paid an additional premium for the PCOH coverage. Id. at ¶ 5.

After work was completed, Ohio Northern University discovered water damage from leaks believed to be caused by defective work of Charles Construction and its subcontractors. Ohio Northern University filed suit, and Charles Construction answered and filed third-party complaints against its subcontractors. Charles Construction submitted its claim to Cincinnati Insurance Company and asked that it defend and indemnify Charles Construction. In response, Cincinnati Insurance Company intervened at the trial court level, seeking declaratory judgment and a determination that it was not obligated to either defend or indemnify Charles Construction, due to the earlier Decision in Custom Agri. Id. at ¶¶ 7-8.

The particular PCOH clausecovered property damage “occurring away from premises you own or rent and arising out of  *** ‘your work’ except *** work that has not yet been completed or abandoned”. Charles Constr. at ¶ 24. It further excluded coverage for property damage to the policyholder’s work arising out of it or any part of it.  However the Court  specifically stated the exclusion did not apply if the damaged work was performed by a subcontractor. Id. at ¶ 26.

The Ohio Supreme Court’s Analysis
Despite the Cincinnati Insurance Co. CGL policy containing both PCOH language as well as subcontractor-specific language, the Court found there was no coverage for the subcontractor’s faulty work. Specifically, the Court found the PCOH and subcontractor-specific language had no effect, since the damage was not due to an “occurrence” under the Coverage A portion of the Cincinnati Insurance Co. CGL policy:

“The language within the Coverage A portion of the CGL policy is critical to the policy’s overall effect. It states that CIC agrees to pay for property damage under certain circumstances. But the damage must be due to an “occurrence,” which the policy defines as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Again, there is no question that the water-related damage to the inn was “property damage” and was discovered after the work had been completed. But unless there was an “occurrence,” the PCOH and subcontractor language has no effect, despite the fact that Charles Construction paid additional money for it.

If the subcontractors’ faulty work were fortuitous, the PCOH and subcontractor-specific terms would require coverage. But as we explained in Custom Agri, CGL policies are not intended to protect owners from ordinary “business risks” that are normal, frequent or predictable consequences of doing business that the insured can manage. Here we cannot say that the subcontractors’ faulty work was fortuitous.”

Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057 at ¶¶ 28-29, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269.

The Court acknowledged its decision to be contrary to recent decisions of other courts, and cited its duty to look to the plain and ordinary meaning of the language in the CGL policy to find the intent of the parties. Id. at ¶ 32.

Looking Forward
It seems clear from this Decision that the Court considers faulty construction work to be an anticipated business risk of a contractor or general contractor, and will not require an insurer to defend or indemnify against claims or damages arising out of faulty work, at least in cases where a CGL policy exists limiting covered damages to those caused by an “occurrence.”

Contractor and subcontractors should revisit their current insurance risk plans and coverages, and work directly with their respective brokers, agents and insurers to determine the current status of their risk coverages.

We also recommend those contractors that are either anticipating or presently involved in pending litigation reach out to their insurers, agents and/or brokers, immediately, for further guidance.


For more information on Ohio Northern University v. Charles Construction Services, contact Chenee Castruita at 614.324.1039 or via email at ccastruita@mrrlaw.com.

 

MRR Columbus Office Expands with Partner Paul-Michael La Fayette

MRR is pleased to announce the addition of Paul-Michael La Fayette to its Columbus office. He represent clients in lawsuits involving professional malpractice, premises liability, contracts, employment, construction, civil rights, zoning, wrongful death and products liability.

“We are thrilled to expand our services in Columbus with the addition of Paul,” MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “He brings to the firm expertise in a number of practice areas, a set of exceptional legal skills, and a client-focused commitment to excellence.”

Mr. La Fayette represents several professionals in administrative licensure proceedings before their professional Boards. In addition to professional liability, he regularly represents governmental entities in litigation and as general counsel. Paul is a member of the Ohio State Bar Association, Columbus Bar Association, The Defense Research Institute (DRI), PIAA, as well as a guest lecturer for The Ohio State University College of Dentistry.

In the community, Paul is the past president of the Epilepsy Foundation of Central Ohio, member of the Boy Scouts of American (Simon Kenton Council), Plain City Area Baseball Association member, and serves as baseball coach at Jonathan Alder Junior High.

A graduate of West Virginia Wesleyan College, Mr. La Fayette sought his Master’s at West Virginia University and then earned his J.D. from Capital University Law School in 1996.

 

Stacy Pollock to present “Texts, Tweets, and Tags – A Look at Public Officials’ Digital Communication” at OHPELRA’s Annual Training Conference on February 6, 2018

MRR Columbus Partner Stacy V. Pollock will present “Texts, Tweets, and Tags – A Look at Public Officials’ Digital Communications” at the 34th Annual OHPELRA Training Conference in Columbus on February 6, 2018.

Stacy is a certified Specialist in Employment and Labor law and a certified Professional in Human Resources. She advises public and private employers in matters involving leave and discipline issues, personnel policy matters and labor negotiations and arbitrations. When necessary, she defends them in state and federal court. She has experience representing clients before various governmental administrative agencies including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board and the Ohio Department of Education. Ms. Pollock regularly speaks to the OHPELRA membership at trainings and seminars throughout the year.

 

Stacy V. Pollock Promoted to Partner at Mazanec, Raskin & Ryder

Mazanec, Raskin & Ryder, Co., L.P.A. (MRR), is proud to announce the promotion of attorney Stacy V. Pollock to partner. Stacy is based in the firm’s Columbus office.

Stacy joined MRR in 2015 as an associate. At MRR, she concentrates her practice on employment and labor law – advising public and private employers in matters involving leave and discipline issues, personnel policy matters and labor and negotiations and arbitrations. When necessary, she defends them in state and federal court.

“We are delighted to reward Stacy’s dedication and hard work with this promotion. She is a talented and ambitious lawyer and we look forward to her ongoing contributions, both to our clients and the firm,” said Joe Nicholas, MRR’s President and Managing Partner.

Accomplished in her profession, Stacy earned the distinction as an Ohio Bar Association Certified Specialist in Labor and Employment Law in early 2017. This certification marks Ms. Pollock as one of a small number of attorneys in the state of Ohio to have earned this distinction.

Ms. Pollock has experience representing clients before various governmental administrative agencies including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board and the Ohio Department of Education. Ms. Pollock also advises clients on workers’ compensation matters and regularly appears before the Industrial Commission. She also has considerable experience in education law, representing schools and school administrators involving employee and student disciplinary matters.

In addition to her Ohio State Bar Association certification in labor and employment law, she is also a Certified Professional in Human Resources through the HR Certification Institute. Ms. Pollock is a member of the Ohio State Bar Association, the Columbus Bar Association, the Ohio Council of School Board Attorneys, and the National School Board Association’s Council of School Attorneys. In addition, she has been selected as a “Best Lawyer in America” for Education Law (2016-2018) and named an Ohio Super Lawyers “Rising Star” in Employment Law by Ohio Super Lawyers magazine (2014-2017).

A graduate of Wittenberg University in 2002, Stacy went on to earn her J.D. from the Chicago-Kent College of Law.

Department of Labor Informal Guidance on Joint Employment and Independent Contractors Withdrawn

Employers employing independent contractors, temp workers, and other individuals potentially involved in joint employment relationships should be breathing a bit of a sigh of relief these days.  On June 7, 2017, the U.S. Department of Labor (DOL) withdrew guidance that had been in place since as early as 2015.  This guidance, developed under the Obama Administration, emphasized a broad interpretation of the Fair Labor Standards Act and supported prior efforts to crack down on employers potentially classifying employees and not complying with wage and hour laws.  Not surprisingly, this withdrawal of the guidance creates a more employer-friendly environment.

Effectively, this should not change how employers operate.  This withdrawal does not mean that employers can be lax in complying with federal wage laws.  In announcing the withdrawal, the DOL made it a point to state that it will continue to fully and fairly enforce all laws within its jurisdiction.  This withdrawal, however, potentially signals that the Trump Administration will be focusing its enforcement on other areas of the law.  MRR will continue to monitor the DOL for any new guidance on these subjects.

Stacy V. Pollock is an Associate in MRR’s Columbus Office. For more info, contact her at spollock@mrrlaw.com.

 

Chenee M. Castruita Joins MRR’s Columbus Office

Mazanec, Raskin & Ryder Co., L.P.A. (MRR) announced today that Chenee M. Castruita has joined the firm as an associate.

Ms. Castruita focuses her practice in the areas of civil rights and government liability, employment and labor law, and insurance coverage and bad faith claims.

A graduate of The Ohio State University Moritz College of Law, Ms. Castruita is admitted to the bar in three states—Ohio, Kentucky, and West Virginia. She was a member of the Barrister Leadership Program, Class of 2015, of the Columbus Bar Association (CBA) and has also served as a member of the Leadership Program’s Planning Committee. Ms. Castruita is a member of the Ohio State Bar Association, Women Lawyers of Franklin County, and the Chief Justice Thomas J. Moyer American Inn of Court. Active in the community, she is a Columbus affiliate volunteer with the Pancreatic Cancer Action Network and also volunteered with Columbus Sole from 2014 through 2016.

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Mazanec, Raskin & Ryder Appoints Doug Holthus as Columbus Administrative Partner

Doug Holthus(Cleveland, OH – Friday, April 1, 2016) — Mazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce the appointment of Doug Holthus as administrative partner of the law firm’s Columbus office, effective April 1, 2016.

“We are fortunate to have a lawyer with Doug’s skills and capabilities take on this role and we are confident that he will maximize our firm’s opportunities for continued growth and success in Central Ohio,” said Joe Nicholas, the firm’s President and Managing Partner.

Doug focuses his practice on civil rights and government liability, corporate law, employment and general liability matters. He counsels small and large companies, public and private entities on legislative and administrative matters in a diverse range of industries including health care, information technology, telecommunications, real estate, retail, and education. He has tried, advocated and or arbitrated nearly one hundred cases before civil juries, administrative licensing (and other) boards and arbitration panels throughout Ohio (and California), in both state and federal court.

Prior to joining MRR, Doug was in private practice and had also served as General Counsel for Kokosing Construction Company and its affiliated entities.

A graduate of Wittenberg University, Mr. Holthus went on to earn his J.D. from Capital University Law School. He serves as Chair of the Columbus Bar Association’s Professionalism Committee (by appointment), is a Member of the Board of Directors of the Professional Liability Defense Federation (“PLDF”) and the Ohio State Bar Association, and Doug is AV-Preeminent rated by the Martindale Hubbell Law Directory.