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Arthur O'Neil Mertz Michel & Brown Co., LPA

 

Barkan Meizlish
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Wentz, LLP

 

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Elk & Elk

 

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The Gervelis Law Firm

 

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Meyer Wilson Co., LPA

 

Murray & Murray Co., LPA

 

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Petersen & Petersen

 

Plevin & Gallucci Co., LPA

 

Rourke & Blumenthal

 

Slater & Zurz, LLP

 

Scott Elliott Smith, LPA

 

Spangenberg, Shibley & Liber

 

Robert J. Wagoner, Co., LLC

 

Tzangas Plakas Mannos Ltd.

 


 

                     

Each and every day Ohioans deal with the insurance system. Whether it be health insurance, car insurance, life insurance, or any other kind of insurance, the process can be difficult to deal with; especially when insurance companies fight against their policyholders. This section allows members to share information about taking on the insurance companies and protecting clients rights. Through the listserv, roundtable conversations, and CLE seminars, the section plans to have an active year with great information sharing and collaboration.

Section Chair Peter Traska | Traska Law Firm, LLC


Spending vs. Messaging
By: Peter Traska, Esq.
When I graduated law school in 2002, it was the height of the frenzy that was Scott-Pontzer.  Ohio was the hothouse for uninsured/underinsured motorist coverage issues and litigation.  Being at a large plaintiffs’ firm, my task was to keep pulling together the hundreds of fast-flowing court decisions on each of the dozens of moving target issues that were being litigated in Ohio like they never had been in any other jurisdiction.  Each brief filed by every side was accompanied by a stack of supportive unreported cases.  If that stack was less than two inches thick, well, you’d lose the weight of authority argument.  
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Trying A Case With “ROBINSON” Numbers—Drilling Down on the Final Problem
By: Brian Wilson, Esq.
Those familiar with the spellbinding PBS Sherlock series know that Moriarty, Sherlock Holmes’ arch nemesis, is foreshadowing and plotting Sherlock’s eventual ruination and death. In many respects, Robinson v. Bates has been to us what Moriarty was to Sherlock: an unrelenting villain hellbent on destroying their perceived enemies. Slight exaggeration with Robinson, but perhaps still in the ballpark.
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The Bad Faith and Personal Counsel “Clubs” in Third-Party Cases
By: Todd Rosenberg, Esq.

Many people believe that bad faith can only be used in a first-party case such as a UM/UIM or med pay claim.  However, bad faith is a highly overlooked “club” that plaintiffs’ lawyers can use to get larger settlements in third-party tort claims.  It is also surprising to many lawyers that tortfeasor’s insurers may be forced to hire two separate defense counsel.
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The Elusive “Robinson Number” in an Age of Balance Billing
By: Benjamin P. Pfouts, Esq.
Almost a decade has passed since the Ohio Supreme Court’s decision in Robinson v. Bates1 . Since then, the term “Robinson number,” referring to the amount a medical provider has agreed to accept as full payment for the services provided after being paid by one or more third parties, has become commonplace in every negligence case involving injuries. 

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Ohio Insurance Law: A Throwback Perspective on the Past, Present, and Future
By: 
Bob Kerpsack, Esq.
I believe it was a Thursday—a Throwback Thursday if you will—when I received the call from President Paul Grieco, appointing me chairperson of the Ohio Association of Justice Insurance Law Section—again.  You see I held this same position in 1998 and 1999. Yes, during my first term as section chair, the membership lined up in droves to learn the latest consumer-friendly insurance case law being churned out by the Ohio Supreme Court.  Of course, this was before the days of online listservers and webinars.  Ah, the good ol’ days.  In all likelihood, I am not going to be able to return us to those glory days of yesteryear, but I can tell you that I accepted the role of section chair—again—because there is again consumer-friendly insurance law for our membership to learn and share.
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Identifying Means Tested Public Assistance Programs
By: Blaine P. Brockman, Esq.
So, you're questioning your client about what public assistance she receives. Your client casually says, "I get Social Security and Medicaid." You get that little feeling in your stomach because you know these public benefits issues are malpractice traps. You know the answer to the next question before you ask, but you ask anyway. 
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The Importance of Defending Plaintiffs
By: Sydney S. McLafferty
This past October, media outlets all over the world (yes world!) lit up with the story of a Connecticut woman who sued her then eight year-old nephew. The headlines most commonly stated that the Aunt sued her nephew for $127,000 dollars for an ‘over exuberant hug’ he gave her when she arrived at his birthday party. The dollar figure was almost always included in the headline. The backlash on social media was vicious, dubbing her the “Auntie Christ” and the “Aunt from Hell”. Shortly thereafter, the hashtag, “#badaunt” was born.

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Where Are We With Pro Rata Subrogation Law and the Made Whole Doctrine in Ohio?
By: Bob Wagoner, Esq.
On June 30, 2015, Governor Kasich signed into law H.B. 64, Ohio’s biannual budget bill. Included within the bill was a repeal of existing R.C. 2323.44, which created the Ohio subrogation rights commission, whose purpose was to “[i]nvestigate the problems posed by, and the issues surrounding, the N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson (2004), 103 Ohio St.3d 188 decision regarding subrogation[.]” (R.C. 2323.44(B)(1)) The subrogation rights commission was created by statute in 2005, just one year after Lawson was decided by the Supreme Court of Ohio. That’s right, it did not take long to realize the imbalance in subrogation law created by the Lawson decision. No longer was an insurer’s enforcement of subrogation rights conditioned upon the insured’s receiving full compensation for his or her underlying damages claim. According to Lawson, as long as the insurance policy or Plan language unambiguously gives the insurer rights to first recovery, then the contractual language controls and the insurer has priority claims over all other interests, including the injured insured. Not long ago an opposing counsel pointed out to me that since the Lawson decision Ohio still follows the Made Whole Doctrine. This is technically true, but the law’s deference to the contractual language of the insurance policy makes “made whole” effectively obsolete. We can expect that every insurance policy written since Lawson includes that magic language granting the insurer first rights of recovery for subrogation. Even the opposing counsel had to acknowledge this reality.

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Navigating through Ohio BWC Subrogation: A practical way to make sure your clients get their fair share when BWC pays their medical bills and wage loss
By: Richard Topper, Esq.
If Weird Al Yankovic were to pen a parody of a John Lennon song to describe our practice, it might go something like this: “Everybody’s talking ‘bout litigation, mitigation, contribution, subrogation. Oh we are saying, ‘Just give me a break.’”  Fortunately for our clients, Ohio BWC subrogation law is one of those areas in which they can catch a break. Unlike, the “subrogee takes all” case law ruling health and auto health care payments, equity rules the division of personal injury proceeds in a case in which the Ohio BWC or a self-insured subrogee pays your clients’ medical bills.

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Who picks up the tab in the Court of Claims anyway? It matters to you and your clients!
By: Craig Tuttle, Esq.
As Ohio’s General Assembly continues to propose and enact new legislation providing cover from civil liability for state employees or agents, we as practitioners are seeing the practical impact of that legislation: disappearing pockets of recovery! With every ‘immunity statute’ enacted, the incentive for tortfeasors to exercise reasonable care disappears, and yet another client is denied just compensation for legitimate claims. This troubling trend persisted in Ohio’s Court of Claims over the past decade, as immunity for State employees continually expanded, shifting the burden of bearing responsibility for the damages created by the wrongdoer from the private insurance carriers, to the citizens of Ohio through the state budget. This is especially true with physicians in Ohio, as recent decisions continue to broaden health-care practitioner immunity.

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Med Pay or Not Med Pay: That is the question
By: Brian Miller
In the not-so-long-ago “good old days,” medical payments coverage was a useful and recommended component of any Ohioan’s automobile insurance coverage.  A responsible citizen, with adequate financial means, would purchase such coverage to work in conjunction with his or her health insurance.  If and when injuries were sustained in an automobile collision, that person and/or that person’s attorney, would typically utilize health insurance benefits to pay for the bulk of medical bills incurred and then utilize med pay monies to satisfy deductibles and co-payments not covered by health insurance.

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Winning - At defeating nursing home arbitration agreements
By: Nancy Iler, Esq.
You have just filed a wrongful death and survivorship case against a nursing home for the untimely death of a lovely mother and grandmother who suffered a fatal fall and you are feeling confident.  But the defendants file a Motion to Dismiss and attach an Arbitration Agreement signed by the decedent.  Gulp…..  So game over or game on?   Armed with an understanding of the current case law from the Ohio Supreme Court and various appellate decisions it will be GAME ON! Arbitration Agreements in consumer contracts are the latest wave of attack on the right to trial by jury. The nursing home industry is enforcing these agreements because their research shows they have reason to fear juries deciding these cases.

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Anyone know what to do? Sovereign immunity vs. health insurance reimbursement 
By: Dennis Yacobozzi, Esq., Columbus, OH
Your client was injured in an automobile collision by the negligence of an employee of “The Ohio State University.” You nailed the deposition of their driver while wearing your elbow-patched blazer and boot-cut jeans, an outfit that had seen you solo line-dance at “Barrel 44” that Saturday night when your wife was at “girls’ weekend.” All was looking good until you received the offer from the State that did not include compensation for your client’s large medical lien asserted by his employer’s self-funded plan governed by ERISA (“Plan”). The proverbial question that every client has asked you immediately comes to mind... “Can they do this?” The answer is “yes;” but what do we do about the Plan’s lien that has the designation of a “super lien.” 

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Havel v. Villa St. Joseph: A Trial without a Roadmap  
By: Hon. Frank G. Forchione, Canton, OH
On February 18,2012, the Ohio Supreme Court in the case of Havel v. Villa St. Joseph, 131 Ohio St.3d 235, upheld an important part of the Tort Reform Bill enacted in 2005 which requires a trial to be split into two phases - or "bifurcated" - when a party files a complaint seeking both compensatory and punitive damages. By a 5 -2 vote, the Court's majority held that the Ohio Assembly intended the bifurcation provision to be a substantial right and was therefore not an unconstitutional encroachment on the Court's powers to set procedural rules. Under the holding, trials must now be held pursuant to the statute. The end result strips away the trial court's discretion to decide on a case-by-case basis whether bifurcation is warranted. In turn, if a jury finds that a party is entitled to punitive damages, the trial court is now required to conduct an additional trial on punitive damages. Unfortunately, the decision leaves the trial court with many unanswered questions as to how the second trial should proceed - and additional anticipated litigation to fill in the gap.

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UPDATED: The Duty Of Good Faith Of An Insurer To Advise The Insured Of A “Non Trivial Probability” Of An Excess Verdict Of The Policy Limits And An Insured’s Right To Independent Counsel.
By: Dimitrios Pousoulides, Esq., North Canton, OH
A friend calls you. He was the at fault driver in a two car crash a year ago.  He was sued by the injured party in the other car. His insurance company provided a defense attorney. The defense attorney told him to not worry since the insurance company would pay for the attorney fees, expenses and costs of litigation and would pay for any monetary settlement or jury verdict.  About six months into litigation, your friend discovers that the injured party has serious injuries and is making a demand of $100,000. The injured party has no other insurance coverage. The problem is that your friend only has $25,000 in coverage. The friend asks you for advice. What do you tell him? Even though liability is in question, your friend faces the real possibility of an excess verdict in which he can be personally responsible. Does the insurance defense counsel owe a duty to advise the tortfeasor that there is a conflict of interest between the insurance company and the tortfeasor because there is a significant possibility that a jury verdict may exceed the policy limits?
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**This article was originally published in the Summer 2011 Issue of Ohio Trial, Volume 21 Issue 2. To see the original publication visit www.oajustice.org/OHTrial and open the archive to search for the article and publication

 

Is an Insurance Company Practicing Law When it Provides In-House Counsel to its Tortfeasor Insured?
When an insurance company is both obligated to provide a defense to an alleged tortfeasor, and a defendant, the insurance company may use its own in-house counsel or a “captive” law firm to represent both defendants.  The practice has gained traction over the past two decades, yielding some fundamental ethical concerns about this tripartite relationship.  Who is the client?  To whom does the lawyer owe confidentiality?  Can the lawyer ethically represent both parties if there is a potential conflict?  What constitutes a conflict?  States have dealt with these issues in disciplinary decisions, legal malpractice cases, and disqualification hearings.
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**This article was originally published in the Summer 2011 issue of Ohio Trial, Volume 21 Issue 2. To see the original publication visit www.oajustice.org/OHTrial and open the archive to search for the article and publication.

 

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