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 $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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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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“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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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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