Firm News

News about our firm and from around the Subrogation World

OHIO LEGAL ALERT - Ohio Civil Rule Amendments on Discovery and their Impact on Subrogation

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The Ohio Supreme Court this summer modified its Rules of Civil Procedure as it relates to discovery practice. Ohio Civil Rule 26 was overhauled to more closely track the federal rule, with some special nuances, and requires more uniformity among the 88 counties and their courts.

Although many of the local rule requirements remain in effect, here are some changes now applicable state wide to all cases filed in Ohio:

Initial Disclosures and Discovery Plan. The new rules impose on the parties the affirmative duty to make “initial disclosures” quickly, no later than the first pretrial or case management conference. Unless privileged or protected from disclosure, the requirement is to disclose without a discovery request the following:

The name and, if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses.

A copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.

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$614,974.00 Recovered on Three Consecutive Spontaneous Combustion Fires - Same Product and Fact Patterns!

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During the last five months, RMI recovered $614,974.00 on three spontaneous combustion fires, each in a different part of Ohio, but all involving the same product and fact patterns.

All three fires were initially believed to be related to other causes, but later determined to be the result of improper use of staining products.

Two of the losses were during the final phase of construction projects.  All three cases involved Minwax brand staining products.  In all instances the manufacturer’s warning and instructions as to proper use and rag disposal were not followed.

The first recovery involved a $204,974.00 settlement in eastern Ohio (Trumbull County) involving an extensive office remodeling project.  The settlement was close to the total recoverable loss.  Initially, the fire was believed to be related to an electric heater in the origin area.  A review of burn patterns, systematic ruling out of an electrical failure, and the evidence of staining being accomplished in another area of the building shifted the focus.

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RMI Presentations on Product Liability at NASP “Virtual” Spring Conference

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Product liability was the theme of this past month’s National Association of Subrogation Professionals Spring Conference. The conference, originally scheduled to take place in Nashville, Tennessee, was converted to a virtual conference.

RMI Attorney Dustin Smith, along with Mike Jacob, PE of Veritas Engineering presented a program on Cost-Effective Investigations of Product Liability Claims Involving Plumbing Products and Appliances.

RMI Attorney David Matejczyk, along with defense Attorney Tracy Knox of Barnes & Thornburg presented a program titled “Chess Match...What are They Thinking? Plaintiff and Defense Perspective on the Product Liability Loss.”

Product Liability Claims Involving Plumbing Products and Appliances

The presentation by Dustin Smith and Mike Jacob reviewed common water-based product failures in both the residential and commercial context. The presentation examined current trends and failure modes in brass fittings, polybutylene and cross-linked polyethylene hoses and other plumbing products.

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RMI $651,335.00 SUBRO VERDICT UPHELD BY OHIO APPELLATE COURT

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March 16, 2020

In a unanimous decision, the Ohio 10th Appellate District has upheld a $651,335.00 jury verdict in favor of a subrogated insurer and its insured. The case, COMTEX, et al. v. Turner / PSC Metals was tried in the Franklin County Court of Common Pleas, and argued in the appellate court by RMI Attorneys Glenna Roberts and Dustin Smith.

The February 20, 2020 ruling upheld a verdict that had been challenged in post-trial motions and then on appeal since the verdict was rendered back in 2017. The original verdict after a four day trial involved a commercial subrogation claim asserting a large nationwide metal recycling corporation had wrongfully converted product belonging to the insured.

The appellate court ruled that the trial judge properly decided a duty to mitigate instruction was inapplicable under the facts of the case. The opinion noted “the duty to mitigate arises only where the injured party has knowledge that it has sustained damages.” The court also held that under Ohio law, contributory fault is not available as an affirmative defense in a conversion case. The appellate court further ruled the trial court did not err in denying the defense motions for judgment notwithstanding the verdict and for a new trial.

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RMI COUNSEL GUEST PRESENTERS AT OHIO IAAI CONFERENCE ON PUBLIC & PRIVATE COORDINATION OF FIRE INVESTIGATIONS

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Event attended by over 300 Ohio fire fighters, public investigators, members of the State Fire Marshal’s Office and private investigators.

RMI Attorneys Glenna Roberts and David Matejczyk were honored to be guest presenters at the IAAI Northern Ohio Chapter Annual Seminar on fire investigations held on February 23 at Ashland University.

The RMI portion of the seminar addressed coordination issues involved between public and private investigations. Topics covered included control and transfer of the scene from the public investigator, safety considerations, overhaul as it impacts cause and origin determination, sharing of information and resources, forensic exams and fire causation trends in Ohio. The program included excellent discussion, interaction and sharing of ideas among the attendees.

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EXPANSIONS AND SETTLEMENTS AT RMI!


Fall News from RMI... Indiana Property Loss Expansion Property Settlements Auto Settlements & Personnel Expansion    NASP Auto Track Leader Health Care Settlements Live Burn a Success!  The past months at RMI were highlighted by expansion of the firm's property practice into Indiana, significant settlements, and new personnel in ...
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BURN IT - TO LEARN IT! Insurance Adjuster/Subrogation LIVE BURN Seminar - June 7, 2019 in Hilliard, Ohio

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INVITATION...

RMI is pleased to have been asked to again participate and co-sponsor the 2019 information packed fire investigation and insurance adjuster/subrogation LIVE BURN seminar “Burn it – to Learn it!”

The live burn is being held Friday, June 7, 2019, 9:30 am at the Norwich Township Fire Department, 5181 Northwest Parkway in Hilliard, Ohio.

Your company's adjusters, subrogation units, managers and in-house counsel are invited to attend "Burn it – to Learn it!" Please feel free to forward this to others in your organization who might desire to attend.

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Subrogation Fires & Explosions Involving Death or Serious Injury / RMI Co-Presenter at NASP Litigation Skills Conference in Palm Springs

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RMI Partner David Matejczyk along with Brian Churchwell, PE, CFEI, CFI of Churchwell Fire Consultants were co-presenters on the topic of Subrogation Fires and Explosions Involving Death or Serious Injury at this past month's NASP Litigation Skills Conference held in Palm Springs, California.  During their respective careers, both presenters have been involved in numerous fire and explosion investigations with a death or serious injury component.

The program explored the complex ethical and legal issues to the investigator, subrogation unit and counsel.  Topics addressed during the program included investigator contacts and coordination with government officials; transfer of scene from public investigator to insurer; heightened evidence preservation; proper interview timing of injured insured or surviving family members; establishing a family contact and unrepresented insureds.

The program included the special nuances of NFPA 921 - Chapter 25, Death and Injuries.  Also addressed were issues involving cooperation and  coordination with the insured’s counsel; legal and ethical duties involving the injured or deceased insured; estate issues; pros and cons of intervention, coordinated or separate filing of the subrogation case and the insured’s personal injury or wrongful death lawsuit. 

 

The presentation also included active participation and input from insurers, attorneys and experts from across the country involved with this serious and important topic.  

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RMI DEHUMIDIFIER FIRE SETTLEMENTS $462,000 Aggregate in Recent Settlements

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RMI recently resolved three dehumidifier fires with an aggregate recovery of $462,000.00 in settlements. The losses involved fires in southern, central and western Ohio.

Although the losses involved two different foreign manufacturers, all involved the same failure mode. In all three fires the dehumidifiers overheated, ignited combustible materials within the product with fire then extending to adjacent combustibles.

More specifically as to the product defect, each case involved an internal failure of the thermal protection device in the dehumidifier.

Dehumidifiers have been the subject of wide recalls in the United States. However, the Ohio Rules of Evidence do not permit the introduction of a recall into evidence to prove liability. An additional challenge is that the manufacturers involved are foreign corporations.

On all three losses RMI was involved in the early stages. The firm ensured that the proper entities (including the US supplier and seller) were on notice, scene preserved, that an NFPA compliant joint scene exam was held followed by a forensic lab examination to identity the failure mode.

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RMI AWARDS & PRESENTATIONS AT NASP 20th ANNUAL CONFERENCE

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This past month the National Association of Subrogation Professionals (NASP) held its 20th annual conference in Orlando, Florida. RMI has been involved in NASP since its inception and was proud to be part of the 20 year celebration of subrogation professionals. Attorneys from our property and auto divisions were also presenters at the conference.

At the Sunday night reception, NASP President Kevin DeGarmo presented RMI partners Glenna Roberts and David Matejczyk with 20 year perfect attendance awards.  Dave was the conference chair at the inaugural (and two subsequent) NASP Annual Conferences. Both are past board members of the organization.

The following morning, RMI Attorney Amanda Martanovic received her Certified Subrogation Recovery Professional (CSRP) designation.  Amanda oversees the automobile subrogation division at RMI. Amanda was also a co-presenter in the automobile track at the conference. The session “Let’s Play Categories: Dealing with Challenging Insureds” explored multiple issues involving auto subrogation.

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AMANDA MARTANOVIC RECEIVES SUBROGATION CSRP DESIGNATION

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RMI Attorney Amanda Martanovic received her Certified Subrogation Recovery Professional (CSRP) designation at the National Association of Subrogation Professionals (NASP) Annual Conference held this month in Orlando, Florida.

Attorney Martanovic oversees the automobile subrogation division at RMI.

The CSRP designation is a significant accomplishment in the subrogation field. The designation is awarded to industry professionals who have met stringent academic and experience requirements followed by passing a comprehensive examination of multiple subrogation topics.

The first step of the designation requires five years experience in the area of insurance subrogation.

Amanda first started her career in subrogation while clerking at RMI. Upon graduation, Amanda was a natural fit at the firm. She began litigating cases for insurers throughout the state of Ohio. In 2018, Amanda was named manager of the automobile subrogation division at the firm. In that role she continues to litigate cases throughout the state in addition to overseeing a team of paralegals in RMI’s auto recovery unit.

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RMI SETTLES $550,000.00 GAS EXPLOSION CASE: Second large loss gas explosion settlement in back to back months

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RMI in back to back months has recovered by way of settlement two significant six digit gas explosion cases.

This past month the firm settled a natural gas explosion that destroyed an insured’s commercial building in Columbus, Ohio. The previous month RMI resolved a residential explosion that completely destroyed a home. On both losses, the firm was retained within twenty-four hours after the explosions.

The $550,000.00 commercial building settlement was very close to the calculated actual cash value of the loss.

Despite being on site immediately, there was “catch up” involved as the gas company had already commenced return to service repairs.

The loss involved a main gas line servicing several city blocks. Luckily, an evacuation of the insured’s building occurred minutes prior to the blast that rocked the downtown area. The blast destroyed the insured’s building and displaced multiple commercial tenants.

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NEW OHIO LAW IMPACTS DRIVER’S LICENSE SUSPENSIONS: Governor Signs “Reinstatement Fee Amnesty Initiative”

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August, 2018

Every auto subrogation professional handling Ohio claims should be aware of a new law aimed at making it easier for suspended drivers to get back on the road.

Governor John Kasich on August 3, 2018 signed into law House Bill 336, known as the “Reinstatement Fee Amnesty Initiative.” The new law will require the Ohio Registrar of Motor Vehicles to establish a 6 month driver’s license reinstatement fee reduction and amnesty program.

For those subrogation professionals who use license suspensions as a method of recovery, this is a law that needs their attention. Under this new statute, individuals with suspended licenses who have committed an “eligible offense” can apply to the Ohio BMV to either have their reinstatement fees reduced or have the fees waived completely if they meet various criteria.

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“BURN IT TO LEARN IT” LIVE BURN SEMINAR A SUCCESS - 150 Attendees at Ohio Event

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RMI was pleased to participate and co-sponsor “Burn it – to Learn it” - a day long information packed fire investigation and insurance subrogation/adjuster seminar.

The event featured a morning classroom program addressing legal and insurance issues.  The program was held at the Norwich Township and Fire Department state-of-the-art training facility. A live burn was held in the afternoon at the adjacent Franklin County Fairgrounds. The program was attended by approximatey150 representatives of the insurance industry (adjusters, subrogation units and in-house counsel), agents, property managers and local fire officials.

The classroom portion featured insurance issues including proper and compliant notice, roles and duties of the front line adjuster & subrogation unit, scene preservation, avoidance of bad faith claims, impacted third parties, losses involving injuries and proper damage documentation.

RMI partner David Matejczyk was a presenter on the insurance and legal issues from a fire loss.

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SUBROGATED HEALTH INSURER OR PLAN NAMED AS A DEFENDANT IN OHIO - "I received a court document! What should I do?"

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Failure to Properly Respond Per Ohio Civil Rules May be Fatal to Your Subrogation Claim

In Ohio, court documents may arrive in several different forms. The court document or pleading most likely to be seen first would be a “Summons and Complaint” naming a plan or TPA (usually improperly named) as a defendant, which is very common in Ohio. In fact, some courts require the subrogated interest(s) such as a health plan or workers comp lien to be added as a party where not originally named. The document you receive may be an initial complaint alleging injury or an amended complaint by which the lien interest is being added to the already ongoing litigation. 

Under Ohio law, a defendant has only 28 days from the date the summons and complaint or amended complaint are first received in which to answer. The 28 days begins running as soon as the party or its agent (i.e., statutory agent, TPA, any office address, etc.) receives the suit papers. We all know this time can pass all too quickly during the press of ordinary business, while the court document is first associated with a particular member (or subscriber’s relative) and eventually makes its way to the appropriate handler for the first time.

A timely phone call to Ohio outside counsel, even with limited information, can help stave off the potentially bad consequences of a late response. It should be emphasized here that it is not sufficient at this point under either the Ohio civil rules or practical experience for the file handler to simply call or write the plaintiff’s attorney – the simple fact is that you need to get right with the court through counsel at the peril of your subrogated interest.

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BURN IT - TO LEARN IT! - Insurance Adjuster/Subrogation LIVE BURN Seminar - June 22, 2018 in Hilliard, Ohio

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Invitation....

RMI is pleased to have been asked to participate in an information packed fire investigation and insurance adjuster/subrogation live burn seminar being held Friday, June 22, 2018, 9:30 am to 1:30 pm at the Norwich Township Fire Department, 5181 Northwest Parkway in Hilliard, Ohio.

Your company’s adjusters, managers, subrogation units and in-house counsel are invited to attend.

Lunch is provided. Please RSVP to Michelle Hoffman (Ph. 614-863-9650) or This email address is being protected from spambots. You need JavaScript enabled to view it.

  

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Ohio Supreme Court Holds Third Parties Jointly and Severally Liable as to Subrogation Interest on Post Settlement Workers’ Compensation Benefits

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CASE ALERT:

The Ohio Supreme Court has issued a decision underscoring the reach of the state’s workers’ compensation automatic subrogation statute.

In Bureau of Workers Compensation v. Verlinger (Slip Opinion No. 2018-Ohio-1481), Ohio’s high court reversed the lower courts, holding that both a claimant and settling third parties are jointly and severally liable for the subrogation lien, including as yet unpaid and future benefit payments. Third parties would include the tortfeasor, its insurance carrier, and the claimant’s underinsured motorist insurer.

In Verlinger, the statutory subrogee (the Bureau) filed suit asserting its subrogation interest naming as defendants the claimant, her insurer and the insurer of the driver alleged to have caused the accident.

The factual setting was interesting given that at the time of the third-party settlements there were no workers’ compensation benefits paid. In fact, the claimant had previously been denied workers’ compensation benefits for failing to demonstrate that the motorcycle crash injury occurred within the course and scope of the driver’s employment. The denial was subsequently reversed on administrative appeal and the claimant was deemed eligible for benefits.

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RMI DEFEATS “SUDDEN-MEDICAL EMERGENCY DEFENSE” / $350,000 in Recoveries after Verdict & Settlements on Three Recent Challenges to Ohio Doctrine

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Ohio’s “sudden-medical emergency” doctrine has long been utilized by defense insurers and counsel to defeat subrogation cases. The defense is often used by insurers who claim a sudden medical or other emergency resulted in a driver losing control of a vehicle and colliding with a building.

In three recent cases, RMI has successfully challenged the defense resulting in $350,000.00 in aggregate subrogated recoveries by way of a verdict and two settlements.

All three cases involved property losses to buildings sharing a common denominator of a complete denial of liability by the vehicle insurer based on the sudden emergency doctrine. Two of the cases involved alleged medical emergencies.

Tim Ita tried a case to verdict in Hamilton County with a 100% liability finding in his client’s favor, an insurer of a retail store. The defendant driver claimed a sudden emergency resulted in his swerving onto the sidewalk and crashing into the storefront. Tim Ita also litigated and settled a claim for $146,000 involving a residential loss where the defense was that the commercial operator of a heavy equipment truck had lost consciousness from choking and collided with the insured’s home.

David Matejczyk recently litigated and resolved a “sudden-medical emergency” case in the sum of $180,000 for a subrogated insurer. The defense insurer maintained its driver collided with a commercial building because she allegedly lost consciousness. In that case, RMI immediately visited the loss site and matched witness statements as to specific locations along the route of travel. It was successfully argued that there was nothing “sudden” about the driver’s loss of consciousness, and that she continued driving despite warning signs of her condition.

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SUBROGATING PIPE FREEZE, SPRINKLER SYSTEM FREEZE FAILURES AND PLUMBING LOSSES / $516,000 Settlement on Pipe Break Claim / Subrogation Targets & Tips

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Once again, Ohio is gripped with plunging temperatures and resulting claims from pipe freeze losses.  Recently, RMI was pleased to present a program along with Lee Fire Protection on “Sprinkler System Freeze Failures: Causes, Investigation and Successful Subrogation.” The webinar was a joint presentation with PLRB and NASP.

Plumbing failures occur when water in a system freezes. Water expands when it changes from liquid to solid, and if there are not sufficient air pockets a pipe break will ensue. Often the failure is not evident until a thaw or warming in temperature, sometimes two to three days after the bitter cold spell ends. The resulting escape of water can be catastrophic. RMI has successfully litigated multiple cases involving freeze failures in sprinkler systems, along with other pipe freeze and other plumbing failures.

Recently the firm had a $516,000.00 pipe break water loss subrogation settlement at a commercial building in northern Ohio. The case was litigated by RMI Attorney David Matejczyk.

Other significant recoveries by the firm have involved six digit settlements on freeze failures involving contractors who deviated from the standards set forth in NFPA 13 (Standard for Installation of Sprinkler Systems, and NFPA 25 – Inspection Testing and Maintenance of Water-Based Fire Protection Systems).  RMI Attorneys  David Matejczyk and Glenna Roberts have litigated multiple large and small losses involving freeze failures, NFPA 13 and NFPA 25. The firm also this past year added to its property division Attorney Dustin Smith  a graduate of Ohio State’s engineering program whose background includes fluid and thermodynamics.

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RMI PARTNER CO-PRESENTER: FIRE SCENE SAFETY, PRESERVATION & RELATIONSHIPS: THREE KEYS TO A SUCCESSFUL FIRE INVESTIGATION

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RMI partner David Matejczyk, who has participated in hundreds of fire scene examinations in Ohio during his legal career, was a co-presenter at the NASP Annual Conference on the topic of safe and successful fire scene examinations.

The program titled “Fire Scene Safety, Preservation, and Relationships: Three Keys to a Safe and Successful Fire Investigation Subrogation” addressed steps to a successful fire scene investigation.

Co-presenters included the Chair of the IAAI Health and Safety Committee along with another experienced subrogation counsel from a neighboring state.

The program addressed the health and safety risks associated with site inspections, the legal risks associated with improperly handling site inspections, and the interpersonal conflicts that may exist during the site inspection process. The presentation addressed issues that arise during the early stages of a fire loss investigation: (1) the often overlooked environmental and physical hazards; (2) the sometimes overlooked NFPA 921 mandates for site access, site exams, and evidence preservation; and (3) the interrelationships between those involved in the investigation process and the conflicts that sometimes develop.

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