STATUTE OF LIMITATIONS
- Personal Property2 YearsOhio Rev. Code Ann. § 2305.10(A)
- Personal Injury/Death2 YearsOhio Rev. Code Ann. § 2305.10(A)
- Personal Injury/Medical Malpractice1 YearOhio Rev. Code Ann. § 2305.113(A)
- Breach of Contract/Written8 YearsOhio Rev. Code Ann. § 2305.06
- Breach of Contract/Oral6 YearsOhio Rev. Code Ann. § 2305.07
- Breach of Contract/Sale of Goods4 YearsOhio Rev. Code Ann. § 1302.98
- Statute of Repose/Products10 YearsOhio Rev. Code Ann. § 2305.10*
- Statute of Repose/Real Property10 YearsOhio Rev. Code Ann. § 2305.131**
- Breach of Warranty/U.C.C.4 YearsOhio Rev. Code Ann. § 2305.09(D)
- Workers’ Compensation2 YearsOhio Rev. Code Ann. § 4123.931
- Strict Product Liability2 YearsO.R.C.A. § 2305.10(A)
Statute of Limitations Exceptions
*10 years from delivery date to first purchaser unless warranty longer. O.R.C.A. § 2305.10.
**10 years from substantial completion of improvement to real property. If defect discovered less than two (2) years before expiration of 10 year period may bring action within two (2) years from discovery. O.R.C.A. § 2305.131.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If plaintiff’s liability exceeds that of the defendant, he may be barred from recovery. Ohio Rev. Code Ann. § 2315.33.
Med Pay/PIP Subrogation
Med Pay: Yes. Carrier entitled to subrogation and/or reimbursement, depending on policy language. Craven v. Nationwide Mut. Ins. Co., 1998 WL 158980 (Ohio App. 1998); State Auto. Mut. Ins. Co. v. Manges, 1993 WL 319627 (Ohio App. 1993) (unreported case).
The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. Ohio Rev. Code Ann. § 2305.10(A) (2000).
PIP: Yes. Coverage can be offered by insurers.
Automobile: Pro-Rata. Ohio Admin. Code § 3901-1-54(H)(10) provides: “An insurer shall include first-party claimant’s deductible, if any, in subrogation demands. The insurer shall share any subrogation recovery received on proportionate basis with the first-party claimant, unless the first-party claimant’s deductible has been paid in advance or recovered. The insurer shall not deduct expenses from this amount except that an outside attorney or collection agency is retained to collect such recovery. The insurer may then be paid only pro-rata share of his expenses for collecting this amount.”
Must include deductible in subrogation demand.
Made Whole Doctrine
Ohio courts enforce the Made Whole Doctrine. Huron County Bd. of Comm’rs v. Sounders, 775 N.E.2d 892 (Ohio App. 2002). An insurer’s subrogation interest will not be given priority where doing so will result in less than a full recovery to the insured. Porter v. Tabern, 1999 WL 812357 (Ohio App. 1999) (unreported decision). However, the Made Whole Doctrine in Ohio may be disclaimed by the policy or Plan language. N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 798 N.E.2d 667 (Ohio App. 2003), motion to certify allowed by, N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 800 N.E.2d 749 (Ohio 2003), judgment aff’d by, N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 814 N.E.2d 1210 (2004), reconsideration denied by, N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 818 N.E.2d 712 (Ohio 2004). Sometimes known as the “Full Compensation Rule,” Ohio has followed the more logical although minority approach among states, and held that cases of contractual interpretation should not be decided on the basis of what is just or equitable, even where a party has made a bad bargain, contracted away all of his rights, or has been left in the position of doing the work while another may benefit from the work. Ervin v. Garner, 267 N.E.2d 769 (Ohio 1971). Ohio bases this position on the Federal Made Whole Doctrine, quoted extensively in the following chapter. The Federal Made Whole Doctrine is based upon “general equitable principles of insurance law that, absent an agreement to the contrary, an insurance company may not enforce a right to subrogation unless the insured has been fully compensated for his or her injuries, that is, has been made whole.” Barnes v. Indep. Auto. Dealers of California, 64 F.3d 1389 (9th Cir. 1995); Galusha v. Pass, 2003 WL 859083 (Ohio App. 2003) (unreported decision).
In Peterson v. Ohio Farmers Ins. Co., 191 N.E.2d 157 (Ohio 1963), the Ohio Supreme Court considered a subrogation dispute which arose out of fire damage to the insured’s barn. The insurance company, Ohio Farmers, paid the insured $7,814 on a real and personal property claim stipulated to be in excess of $17,629. The insureds, upon receipt of the proceeds, signed a proof-of-loss and executed the insurer’s standard subrogation receipt. Thereafter, both jointly filed a petition against the third party claiming that the insured’s loss was $17,629.56. A joint verdict in favor of both parties against the tortfeasor was subsequently returned in the amount of $11,514 and judgment was entered. Thereafter, a dispute arose between the insured and insurer as to the division of the proceeds of the judgment. The Supreme Court determined that the key to resolving the dispute was to be found in the language of the subrogation provision of the policy and the subrogation receipt signed by the insured. According to the Court the language providing that the insured “hereby subrogates said Insurance Company, to all of the rights, claims and interest which the undersigned may have” conveyed every bit of the insured’s rights of recovery up to $7,814. Therefore, the insurer being the owner of all the rights of the insured “must have priority in payment out of the funds recovered.” Ultimately the Court held that an insurer who has cooperated and assisted against the tortfeasor is entitled to be compensated first out of the proceeds of any recovery where the subrogation provision or receipt conveys all of the rights of recovery to the extent of payment by the insurer.
Three decades later, the Ohio Supreme Court revisited the issue of priority of rights in the context of health insurance in Blue Cross & Blue Shield Mut. of Ohio v. Hrenko, 647 N.E.2d 1358 (Ohio 1995). The Court reiterated its position that the dispositive consideration was the language of the policy or subrogation receipts. While the Court found the language of the policy to be clear, unambiguous and enforceable, it was also influenced by the fact that the insured had received the full benefits of his bargain. Consequently, the Court concluded that pursuant to the terms of the policy, an insurer who has paid benefits to its insured and has been subrogated to the rights of its insured may enforce that right after the insured receives full compensation.
In subsequent opinions involving health insurance subrogation disputes courts of appeals have construed the relevant analysis to turn on an examination of the policy language and a consideration of whether the insured had been made whole. Whether the insured had received complete compensation however, ultimately was accorded greater weight in the analysis and became the dispositive consideration. Huron County Bd. of Comm’rs v. Saunders, 775 N.E.2d 892, 897 (Ohio Ct. App. 2002); Grine v. Payne, No. WD-00-044, 2001 Ohio App. LEXIS 1342, at *8 (Ohio Ct. App. 2001); Central Reserve Life Ins. Co. v. Hartzell, No. 94AP120094, 1995 Ohio App. LEXIS 6027, at *5 (Ohio Ct. App. 1995).
The Court explained the critical nature of the requirement that the insured be made whole before the insurer can assert its subrogation right in Hartzell. Hartzell, 1995 Ohio App. LEXIS 6027, at *7. In Hartzell, the Court of Appeals went further than any court before and declared that any attempt by the insurer to claim priority over a partially compensated insured via a subrogation clause was “unenforceable and contrary to public policy.” Thus, the Court concluded that it is contrary to the public policy of Ohio to allow an insurer to contractually establish priority over an insured’s claim before the latter has been made whole.
In 2006, the Ohio Court of Appeals confirmed the Made Whole Doctrine was a defense to subrogation which could only be asserted by the insured, and only in certain situations. Wilson v. Sanson, 2006 WL 3446213 (Ohio App. 2006). The “Make-Whole” Doctrine provides that “unless the terms of a subrogation agreement clearly and unambiguously provide otherwise, a health insurer’s subrogation interests will not be given priority where doing so will result in less than a full recovery to the insured.” Lawson, supra. In Wilson v. Sanson, a health plan paid $141,000 in benefits to two plan beneficiaries injured in an automobile accident. The third-party tortfeasor carried only $100,000 in liability policy limits, so the plan beneficiaries’ underinsured motorist carrier made substitute payments for the $100,000 limits and preserved its right of subrogation against the third party. However, the UIM carrier was not aware of the health plan’s lien, and later argued that the lien should not be repaid out of the $100,000 third-party limits because the plan beneficiaries were not “made whole.” The Ohio Court of Appeals stated that the Made Whole Doctrine only applies to an “insured” that has not been made whole. It does not apply to an insurance company. Thus, the UIM carrier did not have any standing to assert this claim. The Court also noted that the plan beneficiaries’ claims against the third party was settled and dismissed with prejudice. The third party also signed a release with the UIM carrier. Thus, there was some evidence tending to prove that the Wilsons were fully compensated for their injuries. Id. Interestingly, the Court found that both the UIM carrier and the health plan had equal subrogation rights to the $100,000 third-party proceeds. The UIM carrier had subrogation rights under the Ohio UM statute. R.C. §3937.18(J). The fully insured health plan had subrogation language which read as follows:
“To the extent we provide or pay benefits for covered Medical Services, your legal rights to claim or receive compensation damages or other payment for that same illness or injury is transferred to us.”
The Federal Made Whole Doctrine says that when the language of an ERISA Plan is silent or ambiguous as to subrogation or reimbursement rights, Federal Common Law requires that the insured be made whole before the insurer can recover. Copeland Oaks v. Haupt, 209 F.3d 811 (6th Cir. 2000). Therefore, Ohio has borrowed from the Federal Made Whole Doctrine to craft the Ohio Made Whole Rule, which is that the health insurer can opt out of this “default” Made Whole Doctrine by using specific and clear language in its Plan that establishes both a priority to recovered funds and a right to full or partial recovery. Hiney Printing Co. v. Brantner, 243 F.3d 956 (6th Cir. 2001). Language providing a health insurer with a right to the proceeds of “any recovery” from a third party has been held to be sufficient to overcome the Made Whole Doctrine. Risner v. Erie Ins. Co., 633 N.E.2d 588 (Ohio App. 1993). Likewise, if the Plan provides for an apportionment scheme in the event that the third-party tortfeasor has insufficient insurance or means to satisfy a judgment for all of the damages suffered by the insured, then these contract provisions will govern and the recovery will be apportioned. Aetna Life Ins. Co. v. Martinez, 454 N.E.2d 1338 (Ohio App. 1982). In addition, if the insured has interfered with the insurer’s subrogation rights, then the “Make Whole” Doctrine does not apply. Acuff v. Motorists Mut. Ins. Co., 2007 WL 661561 (Ohio App. 2007).
The Ohio Supreme Court has clearly indicated that clear and unambiguous language allows subrogation even where the insured is not fully compensated. Lawson, supra.
Economic Loss Doctrine
Majority Rule. In Ohio, the ELD generally prevents recovery in tort damages for purely economic loss. It bars the use of negligence or strict liability theories of recovery of economic losses arising out of commercial transactions where the loss is not a consequence of an event causing personal injury or damage to another’s property. The ELD applies primarily in the absence of contractual privity when a plaintiff seeks to recover in tort for purely economic damages. In the absence of privity of contract between two parties, Ohio says there is no duty to exercise reasonable care to avoid economic loss or damage to others that do not arise from tangible physical harm to persons and tangible things. Therefore, unless there is some agreement between the parties, no duty exists with respect to purely economic harm, and no cause of action exists in tort to recover economic damages. As a result of the ELD, most building project owners are barred from recovering purely economic damages against a subcontractor based on a breach of contractually created duties.
A commercial buyer seeking recovery from a seller for economic losses resulting from damage to a defective product itself could maintain a contract action for breach of warranty under U.C.C., but absent injury to persons or damage to other property, could not recover for economic losses premised on tort theories of strict liability or negligence. Chemtrol Adhesives, Inc. v. American Manufacturers’ Mut. Ins. Co., 537 N.E.2d 634 (Ohio 1989). A non-commercial plaintiff may recover for purely economic damages under the common law theory of implied warranty in tort. Iacono v. Anderson Concrete Corp., 326 N.E.2d 267 (Ohio 1975).
The ELD in Ohio has also been extended to include insurance agents, holding that negligence claims by insureds against their insurance agents for failing to procure coverage are specifically barred by the doctrine. Mafcote, Inc. v. Genatt Associates, 007 U.S. Dist. Lexis 10117 (S.D. Ohio 2007).
However, there are some exceptions to the ELD.
Pre-Existing Independent Tort Duty. A party can pursue a tort claim if it is based exclusively on a discrete pre-existing duty in tort and not on any terms of a contract or rights accompanying privity. In such circumstances, the ELD would not apply, and a party who suffered purely economic damages is allowed to proceed in tort where the defendant breaches a duty that does not arise solely from contract.
Negligent Misrepresentation. A party remains liable for negligent misrepresentation if, in the course of business, it negligently supplies false information, knowing that the recipient intends to rely on it in business. This is because it is based on a separate duty owed in tort and, therefore, the ELD would not apply.
Privity. Economic damages can be recovered in a tort action where privity or a sufficient nexus to substitute for privity is established. Privity establishes a relationship necessary to allow for the bringing of a tort action for purely economic damages. In addition, a lack of privity is not an absolute bar to a claim against a professional when there is a sufficient nexus that can serve as a substitute for privity. As an example, this applies when a plaintiff is a member of a limited class whose reliance is specifically foreseen, such as surveyors and civil engineers.
A tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. U.S. Fire Ins. Co. v. Phil-Mar Corp., 166 Ohio St. 85, 139 N.E.2d 330, 332 (Ohio 1956) (denied subrogation because lease provided that tenant would pay possible increase in fire insurance premiums due to tenant’s activities). In Phil–Mar, the court looked at the words expressed in the totality of the lease agreement to ascertain the intent of the parties. The court found that where a lease agreement contained (1) a surrender clause requiring the lessee to return possession of the leased premises to the lessor upon the expiration or termination of the lease, with said premises being “in as good condition and repair as the same shall be at the commencement of said term (loss by fire * * * excepted),” and (2) a provision requiring the lessee to pay the lessor any additional premium charged for the fire insurance on the premises that resulted from the lessee’s occupancy, the lessor had relieved the lessee of liability for fire caused by the lessee’s negligence, and thus the lessor had no right of recovery against the lessee. The court, after “considering the lease as a whole,” found that it was apparent under the circumstances of the case that “the parties intended to relieve the lessee from its common-law liability to the lessor for loss by fire.” In Cincinnati Ins. Co. v. Control Service Technology, Inc., 677 N.E.2d 388 (Ohio App. 2011), the lease provided that the lessor agreed to restore the leased premises under certain conditions in the event of a fire or other casualty. The trial court found that this lease provision constituted “a waiver of any negligence on the part of CST.” The Court of Appeals disagreed, finding that the provision was ambiguous and was not the type of waiver ordinarily relied upon to excuse a party from the results of the party’s own negligence. The Court of Appeals also found that the parties’ lease did not contain a surrender clause similar to the “rather explicit” surrender clauses in Phil–Mar. It must be clear and apparent from the terms of the lease agreement, looked at as a whole, that the parties intended to relieve tenant from her common-law liability to landlord for negligence. If the landlord cannot sue, its insurer cannot sue. Cincinnati Ins. Co. v. Getter, 958 N.E.2d 202 (Ohio App. 2011).
Tort of Spoliation: The Supreme Court of Ohio held that a cause of action exists in tort for intentional spoliation against parties to the primary action as well as third parties. Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615 N.E2d 1037 (Ohio 1993). The elements required are: (1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by defendant designed to disrupt plaintiff’s case; (4) disruption of plaintiff’s case; and (5) damages proximately caused by defendant’s acts.
Punitive Damages: The Ohio Supreme Court has determined that spoliation of evidence may be the basis of an award of punitive damages in an underlying medical malpractice action. Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d 331 (Ohio App. 1994).
Sanctions/Adverse Inference: Courts also recognize discovery sanctions for an adverse party’s failure to provide evidence if the same was willful and prejudice is established. Barker v. Wal-Mart Stores, Inc., 2001 WL 1661961, 7 (Ohio Ct. App. Dec. 31, 2001). Ohio uses Jury Instruction § 305.1. Tate v. Adena Regional Med. Ctr., 801 N.E.2d 930 (Ohio App. 2003).
Various Conduct. Joint and several liability imposed on parents for a child’s acts of vandalism, desecration, or ethnic intimidation. R.C. § 2307.70.
The limit of liability is $15,000.00 plus costs, reasonable expenses and reasonable attorney’s fees. Child must be under 18-years-old.
Property Damage. Liability imposed on parents when a child willfully causes damage to property. R.C. § 3109.09.
The limit of liability is $10,000.00 plus costs. Child must be under 18-years-old.
Personal Injury. Liability imposed on parents when a child willfully and maliciously assaults a person with a force likely to produce great bodily harm. R.C. § 3109.10.
The limit of liability is $10,000.00 plus costs. Child must be under 18-years-old.
Auto Liability. Joint and several liability imposed on parents who signed a child’s application for license or permit and the child commits negligent or willful acts in operation of motor vehicle and such acts cause injury to another person or damage to property. R.C. § 4507.07.
There are no limits to liability. Child must be under 18-years-old.
Modified Joint and Several Liability. Joint and several liability for economic damages where defendant is more than 50% at fault. Ohio Rev. Code Ann. § 2307.22; Gurry v. C.P., 972 N.E. 154 (Ohio 2012). If found liable for intentional torts, joint and several liability applies for plaintiff’s economic damages – non-economic losses are several liability.
Contribution allowed in underlying or separate action where tortfeasor pays more than his share of common liability. Contribution plaintiff only entitled to contribution if liability of contribution defendant was extinguished by a reasonable settlement. Ohio Rev. Code Ann. § 2307.25; Nationwide Ins. Co. v. Shenefield, 620 N.E.2d 866 (1992). A general release of “all other parties” is insufficient. It must name the non-settling party. One year statute of limitation after judgment or timely settlement. Ohio Rev. Code Ann. § 2307.26.
Suspension of Drivers' Licenses
Administrative Suspension: Within 30 days, the uninsured driver must forward a report along with proof of insurance. The Registrar will suspend the license of anyone who does not comply. Ohio Rev. Code Ann. § 4509.101(3). For first offenses, this suspension lasts only 90 days, after which the uninsured driver must file an SR-22 for three years and pay a fee. The second offense suspension lasts one year, and the third offense lasts three years. Ohio Rev. Code Ann. § 4509.101(5).
Judgment: The Registrar will impose a suspension of the judgment debtor’s license. Ohio Rev. Code Ann. § 4509.02(B)(6). License will remain suspended until judgment debtor provides proof of financial responsibility covering the accident in question. Ohio Rev. Code Ann § 4509.35.
Contact Information: State of Ohio, Bureau of Motor Vehicles, Driver License Suspensions, P.O. Box 16520, Columbus, OH 43216-6520, (614) 752-7700, 7600, 7500, http://www.bmv.ohio.gov/suspensions-reinstatements.aspx.
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Ohio Rev. Stat. § 2305.31.
Does not affect any person purchasing insurance from an insurance company for his/her own protection. The anti-indemnity statute potentially limits statutory indemnity to contractually required additional insured coverage as well as to indemnity.
Diminution of Value
First Party: Ohio case law has held in particular cases that the insured was not allowed to recover diminution in value of a damaged auto under the particular policy, and that that there was no cause of action for diminished value of an auto. Nationwide Mut. Ins. Co. v. Shah, 2004 Ohio 1291 (Ohio App. Dist. 5, 2004); Kent v. Cincinnati Ins. Co., No. CA2001-04-100 (Ohio App. Dist. 12, 2001).
Third Party: When a plaintiff proves that the value of his auto after repair is less than the pre-injury value of the auto, the plaintiff or subrogated carrier may also recover the residual diminution in value in addition to the cost of repair, provided that the plaintiff may not recover damages in excess of the difference between the market value of the auto immediately before and after the injury. State Farm Mutual Auto. Ins. Co. v. Cheeks, 2014 WL 470874 (Ohio App. 2014); Rakich v. Anthem Blue Cross and Blue Shield, 875 N.E.2d 993 (Ohio App. 2007).
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. Ohio Rev. Code Ann. § 2933.52(B)(4); Ohio Rev. Code Ann. § 2933.51.
Ohio statute allows for recovery of restitution by “victim” from liable criminal defendant. Ohio Rev. Code Ann. § 2929.18. Applicable case law has included an insurer as a victim entitled to restitution recovery. State v. Martin, 747 N.E.2d 318, 338 (Ohio Ct. App. 2000).
Health and Disability Insurance
Statute of Limitations: 2 Years. Ohio Rev. Code Ann. § 2305.10(A). Medical Malpractice – 1 Year. Ohio Rev. Code Ann. § 2305.113(A).
Subrogation of Medical and Disability Benefits are allowed. Blue Cross & Blue Shield Mut. of Ohio v. Hrenko, 647 N.E.2d 1358 (Ohio 1995); Leasher v. Leggett & Platt, Inc., 96 Ohio App.3d 367, 373, 645 N.E.2d 91, 95 (Ohio Ct. App. 1994).
Made Whole Doctrine may or may not apply. No Made Whole Doctrine per se. See, N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 798 N.E.2d 667, 673, aff’d, 814 N.E.2d 1210 (2004) (Policy language must establish first priority). However, Ohio Rev. Code Ann. § 2323.44 mandates pro-rata reduction.
Common Fund applies. Hoeppner v. Jess Howard Elect. Co., 780 N.E.2d 290 (Ohio App. 2002).
Funeral Procession Traffic Laws
This law defines a funeral procession as two or more vehicles accompanying a dead person in the daytime and operating with headlights lit and displaying a purple and white pennant. Pedestrians and other vehicles, except emergency vehicles or vehicles directed by a police officer, must yield right-of-way to the procession. The other vehicles in the procession can follow the lead vehicle that lawfully entered the intersection regardless of the traffic signal, provided they exercise due care. Ohio Rev. Code Ann. § 4511.451.
Statute of Limitations: 2 Years. Ohio Rev. Code Ann. § 4123.931.
Can Carrier Sue Third Party Directly: Yes.
Recovery from UM/UIM Benefits: Yes.
Subrogation Against Medical Malpractice: Probably.
Subrogation Against Legal Malpractice: Probably.
Recovery Allocation/Equitable Limitations: Statutory allocation formulas for trials and settlements.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Yes.
Future Credit: Yes, but a trust is set up in the amount of futures.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will be held liable for any damages caused by dog. Trespass is a defense. Individuals are protected if they feared a dog bite and killed/maimed the dog. Ohio Rev. Code. Ann. § 955.28.
Employee Leasing Laws
Neither the Ohio Workers’ Compensation Act nor case law directly addresses the issue. However, employee leasing and temporary employee situations are dealt with in the Bureau of Workers’ Compensation Rules. Ohio Adm. Code § 4123-17-15. Workers provided by an employee leasing company are considered employees of the employee leasing company. An employee leasing company is referred to as a Professional Employer Organization (PEO) in Ohio. There does not appear to be any cases clearly delineating whether the client company is entitled to protection under the Exclusive Remedy Rule.
Condominium Waiver of Subrogation Laws
Unless otherwise provided by the by-laws, the board of directors shall insure all unit owners and their tenants against liability for personal injury and property damage relating to the common elements. There is no requirement of waiver of subrogation. Ohio Rev. Code Ann. § 5311.16.
Automobile Total Loss Thresholds
Total Loss Formula (See HERE for definition).
Insurer determines if it is economically impractical to repair vehicle. Ohio Rev. Code Ann. § 4505.11(C)(1).
Sudden Medical Emergencies While Driving
Blackout Defense or Lehman Rule. Where the driver of an automobile is suddenly stricken by a period of unconsciousness which he has no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control. Roman v. Estate of Gobbo, 791 N.E.2d 422 (Ohio 2003).
Lehman Rule: If one was guilty of what would be negligence as to a conscious person and claims not to have been negligent because of an unforeseen unconsciousness, he should have the burden of proving his condition by the preponderance of the evidence. Lehman v. Haynam, 133 N.E.2d 97 (Ohio 1956).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Court of Claims.Ohio Rev. Code Ann. §§ 2743.01 – .03 (1985).
Court of Claims – Practice and Procedure. Ohio Rev. Code Ann. §§ 2743.11 to 2743.20.
Notice Deadlines: Plaintiff must attempt to have claim compromised or satisfied by the State’s liability insurance. If State does not compromise within a reasonable time and at least 60 days prior to the expiration of the statute of limitations, or if the amount of the claim exceeds the State’s liability insurance coverage, plaintiff may commence an action. Ohio Rev. Code Ann. § 2743.16(B). Two year statute of limitations on actions against State. Ohio Rev. Code Ann. § 2743.16(A).
Claims/Actions Allowed: State waives immunity and consents to be sued and have its liability determined in the Court of Claims by the same rules as a suit between private parties. Ohio Rev. Code Ann. § 2743.02(A)(1). Claims allowed against State for negligence operation of motor vehicle driven by State employee, even if driving own personal vehicle. Ohio Rev. Code Ann. § 2743.16(B). State employee cannot be sued personally unless not in scope of employment.
Comments/Exceptions: No jury trial in Court of Claims. Ohio Rev. Code Ann. § 2743.11; Loc.R. 6 of the Court of Claims. Settlements must be approved by Attorney General and the Court of Claims. Ohio Rev. Code Ann. § 2743.16. State immune from liability for claims arising out of the performance or nonperformance of a public duty. Ohio Rev. Code Ann. § 2743.02(3)(a). Subrogation claims not permitted. Ohio Rev. Code Ann. § 2744.05(B).
Damage Caps: Damages reduced by other collateral source recoveries received by the claimant. Ohio Rev. Code Ann. § 2743.02(D). No punitive damages. State may, but is not required to, insure its employees for operation of motor vehicles. Any such insurance must be provided by the Department of Administrative Services (DAS) through the Office of Risk Management (ORM). Ohio Rev. Code Ann. § 9.83.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer may (1) offer a replacement of like kind and quality including all applicable taxes, license fees, or other fees if the insured provides documentation of the purchase of a replacement auto within 30 days, or (2) offer a cash settlement based on the ACV of a comparable vehicle including all applicable taxes, license fees, or other fees. Insurers must only reimburse sales tax for claim amount, not the replacement vehicle cost. Ohio Admin. Code 3901-1-54.
Third-Party Claims: Ohio Admin. Code 3901-1-54 (C)(3) defines “Claimant” as a first-party claimant or a third-party claimant. Third-party insurers must follow the same rules as first-party insurers.
Damage to Property Without Market Value
Service Value: “The cost of the post and the facilities attached thereto based on reproduction cost less accrued depreciation of the damaged pole and the facilities attached thereto.” Ohio Power Co. v. Zemelka, 251 N.E.2d 2 (Ohio Ct. App. 1969).
Intrinsic Value: “When market value cannot be feasibly obtained, a more elastic standard is resorted to, sometimes called the standard of value to the owner.” Bishop v. East Ohio gas Co., 546 N.E.2d 184 (Ohio 1944).
Sentimental Value: “We are therefore in disagreement with the few sister state decisions cited by appellee wherein recovery for sentimental value was permitted.” Craft v. Olney, 1984 WL 4060 (Ohio Ct. App. 1984).
Municipal/County/Local Governmental Immunity and Tort Liability
Political Subdivision Tort Liability Act: Ohio Rev. Code §§ 2744.01 to 3744.10. Political subdivision is immune from both governmental and proprietary acts, unless exception in statute. Ohio Rev. Code § 2744.03.
Notice Deadlines: None. Suit must be filed within two (2) years of accrual. Ohio Rev. Code § 2744.04.
Claims/Actions Allowed: Five Exceptions to Immunity:
- Operating motor vehicle;
- Proprietary acts;
- Repair of roads;
- Defect of grounds/bldg.;
- Liability under § 2743.02; and
- Failure of county to erect and maintain guardrails under § 5591.37. Decision re: upgrading sewer is governmental function. No immunity for failure to repair sewer system, but immunity if complaint requires design or reconstruction of sewer.
Ohio Rev. Code § 2744.03. Matter v. City of Athens, 21 N.E.3d 595 (Ohio 2014); Coleman v. Portage, 975 N.E.2d 952 (Ohio 2012).
Governmental Function: For common good of all citizens. Police, fire, regulation and maintenance of roads, judicial, legislative functions.
Proprietary Function: Action traditionally engaged in by private sector (maintenance/operation of hospital, public utility, sewer system, parking lot).
No liability under five exceptions if defense exists under § 2744.02(B):
- Discretionary act (planning);
- Not in course and scope;
- Malicious/bad faith act.
Ohio Rev. Code § 2744.03.
Damage Caps: No subrogation claims. Damages reduced by other collateral source recoveries received by the claimant. Ohio Rev. Code § 2744.05(B). No limit on economic damages (medical, lost wages, etc.). Non-economic damages capped at $250,000.
Non-catastrophic medical malpractice claims: $350,000 Per Person. $500,000 Per Occurrence.
Catastrophic medical malpractice claims: $500,000 Per Person. $1 Million Per Occurrence. Ohio Rev. Code § 2744.05.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person shall drive a motor vehicle while using a hand-held electronic wireless communications device while using text-based capabilities. Ohio Rev. Code Ann. § 4511.204.
Drivers under 18 may not use any type or electronic wireless communications devices while driving, unless using the electronic device in an emergency situation or when the vehicle is parked. Ohio Rev. Code Ann. § 4511.205.
Other Prohibitions: No person shall operate a motor vehicle while wearing earphones over or earplugs in both ears. Exceptions include built-in hearing devices in protective headgear, hearing aids, law enforcement and emergency personnel, highway maintenance and refuse collection. Ohio Rev. Code Ann. § 4511.84.
Comments: State does not preempt substantially equivalent municipal ordinances. Ohio Rev. Code Ann. § 4511.204.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute includes aliens, but does not speak on their legal status. Ohio Rev. Code § 4123.01 (A)(1)(b).
Case Law: Rajeh v. Steel City Corp., 813 N.E.2d 697 (Ohio Ct. App. 2004).
Comments/Explanation/Other: Rajeh ruled that if illegal aliens were meant to be excluded from the legislation, the legislature would have done so.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Martens, 629 N.E.2d 462 (3d Dist. Mercer County 1993).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Doctrine of imputed contributory negligence not followed in Ohio, unless there is a joint enterprise. Parton v. Weilnau, 158 N.E.2d 719 (Ohio 1959).
Ohio Stat. § 4507.07 also imputes contributory negligence of minor driver to owner who signs driver’s license application. Hartough v. Brint, 140 N.E.2d 34 (Ohio App. 1955).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine. Wilson v. Herd, 1 Ohio App.2d 195, 30 Ohio Op.2d 238, 204 N.E.2d 389 (3rd Dist. Union County 1965).
Sponsor Liability for Minor’s Driving: Ohio Stat. § 4507.07: Any negligence or willful or wanton misconduct of a minor under 18 years of age, when driving a motor vehicle on a highway, is imputed to the person who has signed the application of the minor absent proof of financial responsibility.
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. O.R.C.A. § 2305.10(A). Discovery Rule Applies. Statute of Repose is 10 years. O.R.C.A. § 2305.10(C)(1).
Liability Standards: Strict Liability
Fault Allocations: Modified Comparative. O.R.C.A. § 2315.33.
Non-Economic Caps/Limits On Actual Damages: Yes (With Exceptions).
Punitive Y/N and Limits: Yes.
Heeding Presumption?: Yes. Rebuttable. Seley v. G.D. Searle Co., 423 N.E.2d 831, 838 (Ohio 1981).
Innocent Seller Statute: Yes.
Joint and Several Liability: Yes. O.R.C.A. § 2307.22.
Available Defenses: Assumption of Risk; Unforeseeable Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; Sophisticated User.
Restatement 2nd or 3rd?: Both.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Ohio Rev. Code Ann. § 4511.661.
Common Law Rule: Vehicle owner is not liable to persons injured by the negligent operation of the vehicle by a thief since the chain of causation is broken by the thief’s negligence in operating the vehicle. Pendrey v. Barnes, 479 N.E.2d 283 (Ohio 1985).
An insurance company has no subrogation rights against its own insured. Chenowerth Motor Co. v. Cotton, 207 N.E.2d (Ohio 1965). An insurer may not subrogate against a tortfeasor if the tortfeasor is insured under the policy which gave rise to right of subrogation. In Chenoweth, the defendant was in an auto accident while driving a vehicle loaned to him by Chenoweth Motor Co. Chenoweth had a collision insurance policy on the auto with Ohio Farmers Insurance Co. The defendant, as bailee of the insured auto, was included as an additional insured under the Ohio Farmers policy. Ohio Farmers paid a portion of the property damages pursuant to the policy, and then joined Chenoweth in filing suit against the tortfeasor to recover the amounts paid under the policy. However, because the tortfeasor was a co-insured, the court held that Ohio Farmers had no right to subrogation. Aetna Cas. & Sur. Co. v. Urban Imperial Bldg. & Rental Corp., 526 N.E.2d 819 (Ohio Ct. App. 1987). “Subrogation does not permit an insurer to stand in the shoes of one insured to recover losses occasioned by another insured under the same policy.” Indiana Ins. Co. v. Barnes, 846 N.E.2d 73 (Ohio Ct. App. 2005). In Urban Imperial Bldg. & Rental Corp., a residence, which was titled to the Urban Imperial Building & Rental Corporation (“Urban”), the president of the corporation, and his wife, was severely damaged by a fire that Urban employees negligently started. Urban, the president, and his wife were all listed as named insureds on the building’s insurance policy that was issued by the Aetna Casualty & Surety Company (“Aetna”). Aetna paid the president and his wife for the damages they had suffered as a result of the fire and then Aetna attempted to subrogate against Urban for the fire on the basis that Urban’s employees had negligently started the fire. The court barred Aetna from subrogating against Urban by invoking the rule that no right of subrogation exists where the tortfeasor is insured under the policy which gave rise to the right of subrogation.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Ohio Rev. Code Ann. § 1345.81.
Summary: Non-OEM parts must be permanently marked with the logo or name of the manufacturer of the part. The name or logo should remain visible after installation if at all practicable. If the insured receives a written estimate, the estimate should list each non-OEM part used and include a disclosure statement that must be signed by the insured as proof that the insured is aware of the disclosure’s contents. If the insured receives an oral estimate or no estimate at all, the required notice must be read to the insured and a copy of the notice should be attached to the final invoice.