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Tuesday, Sept. 28, 2010

Don B. Kincaid, Jr., et al. v. Erie Insurance Company, Case no. 2009-1936
8th District Court of Appeals (Cuyahoga County)

Donald Ward et al. v. Summa Health System et al., Case no. 2009-1998
9th District Court of Appeals (Summit County)

State of Ohio v. Welton Chappell, Case no. 2009-2131
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. William N. Davis, Case no. 2009-2208
8th District Court of Appeals (Cuyahoga County)


Does Policyholder Have Standing to Sue Insurer for Breach of Contract Without First Filing Claim?

For Alleged Failure to Reimburse Incidental Litigation Expenses

Don B. Kincaid, Jr., et al. v. Erie Insurance Company, Case no. 2009-1936
8th District Court of Appeals (Cuyahoga County)

ISSUE: When an insured person has been sued for damages that he caused to a third party in an auto accident, and at the request of his insurance company incurs travel costs and other incidental expenses to defend that suit, does the insured have legal standing to file a breach of contract lawsuit against the insurance company for failure to reimburse his litigation-related expenses without first filing a claim with the insurer documenting those expenses and requesting reimbursement under the “additional payments” coverage in the insurer’s policy?

BACKGROUND:  In 2003, Don Kincaid Jr. was sued in the Cuyahoga County Court of Common Pleas by a bicyclist who was injured in a 2001 traffic accident for which Kincaid was at fault. Kincaid sought legal representation and indemnification for damages under the liability coverage in an auto insurance policy issued by the Erie Insurance Company. Erie provided legal representation to defend Kincaid, and in October 2004 entered into a settlement with the bicyclist after pretrial proceedings during which Kincaid incurred personal expenses for travel, parking, photocopying documents and other litigation-related costs at the request of Erie. Although the Erie policy including “additional payments” coverage for litigation-related expenses incurred by an insured, Kincaid never filed a claim with Erie documenting his expenses or seeking reimbursement for them.

In 2008 Kincaid filed a class action lawsuit against Erie asserting claims of breach of contract on behalf of himself and other policyholders who had not been reimbursed by the company for litigation-related expenses under the “additional payments” coverage in their policies. Erie filed a motion to dismiss, asserting that Kincaid did not have standing to sue the company for breach of its insurance contract because Kincaid had not notified Erie of his litigation expenses, had not requested reimbursement for them, and the company had never denied coverage. The trial court granted the motion to dismiss for lack of standing.

Kincaid appealed. On review, the 8th District Court of Appeals reversed and remanded the case to the trial court for further proceedings. In its opinion, the 8th District observed that while the Erie policy under which Kincaid was covered included a specific requirement that persons seeking coverage under the collision, comprehensive or medical payments provisions of the policy may not sue the company until 30 days after submitting “proof of loss,” there was no similar requirement of notice to the insurer or proof of a covered loss in the policy language applicable to claims for liability or “other payments” coverage. The court of appeals wrote that while it might seem “illogical” to require an insurer to pay for expenses that the insured never notified the company about, the plain language of the Erie insurance contract did not require insureds to notify Erie in any particular way or within any certain time frame prior to suing to enforce the terms of the policy. Erie sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for the insurance company argue that in order for a party to have legal standing to sue for breach of contract, there must be a justiciable controversy between the parties to that contract, i.e., the plaintiff must allege that he has suffered actual harm as a result of the defendant’s failure to perform one or more of its obligations under that contract. In this case, they assert, Kincaid cannot show either that he suffered actual harm or that Erie breached a contractual obligation without first showing that he initiated a claim for reimbursement under the “other payments” provision of the insurance policy and that Erie refused to honor that claim. Because Kincaid never filed a claim, and Erie never denied coverage, they assert, there is no justiciable controversy and the trial court rightly dismissed Kincaid’s suit for lack of standing.

Attorneys for Kincaid respond that in order to have standing to pursue a lawsuit for breach of contract against Erie, all that Kincaid is required to show is that he was entitled to other expenses benefits under the company’s policy, that he did what was required to seek coverage under the liability provisions of the policy, and that Kincaid suffered a loss because Erie did not reimburse him for his litigation-related expenses despite the fact that it was contractually obligated to do so. They urge the Court to affirm the 8th District’s holding that nothing in the liability portion of the Erie policy required Kincaid to give notice to the company documenting his litigation-related expenses or to wait a certain number of days prior to seeking recovery of those expenses by means of a lawsuit, and therefore the trial court erred in dismissing Kincaid’s breach of contract suit for lack of standing.

Contacts
John Hurst, 216.771.3239, for Don Kincaid.

Shawn W. Maestle, 216.241.6602, for Erie Insurance Company.

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May Infected Patient Compel Doctor to Testify About Doctor's Own Medical Condition?

In Medical Malpractice Suit Against Hospital

Donald Ward et al. v. Summa Health System et al., Case no. 2009-1998
9th District Court of Appeals (Summit County)

ISSUE:  Under R.C. 2317.(B)(1), the state law that makes medical records and communications between a physician and patient “privileged” (not subject to disclosure under most circumstances), when a patient who undergoes a surgical procedure later develops an infectious disease and files a malpractice suit against the hospital where the operation took place, may the patient compel the doctor who performed the surgery to answer discovery questions about the doctor’s own medical condition at the time of the operation?

BACKGROUND: In 2006, Dr. Robert Debski performed heart valve replacement surgery on Donald Ward at Akron City Hospital, a facility operated by Summa Health System. Following Ward’s discharge from the hospital, he received a notice from Summa advising him that he might have been exposed to the Hepatitis B virus while he was a patient at the hospital. Ward underwent blood testing, which showed that he was infected with the Hepatitis B virus.

Ward sued Summa, alleging negligence by virtue of the hospital’s failure to prevent his exposure to the virus. Dr. Debski, who is not employed by Summa, was not named as a defendant in Ward’s complaint. During discovery, Ward demanded to see a report compiled by Summa documenting the epidemiology investigation it had conducted to determine the source of the virus and the manner in which Ward and at least one other patient had been infected. Summa provided only a significantly redacted version of the report that did not disclose the identity of the person or persons who were the source of the Hepatitis B virus, but included information that led Ward to conclude that that the probable source of the virus he had contracted was Dr. Debski himself. 

Ward’s attorneys issued a subpoena demanding that Dr. Debski appear for a deposition to answer questions about his own personal health, and when or whether he had discovered and advised Summa about any personal health issues that might have contributed to Ward’s infection. Debski indicated that he would appear but intended to answer only questions about the performance of Ward’s surgery and would refuse to answer any questions regarding his personal medical information on the basis that such information was privileged under R.C. 2317(B)(1). When Ward indicated that those limitations were not acceptable, Debski sought a protective order from the trial court barring Ward’s attorneys from posing any questions regarding Debski’s personal health or medical history. The court granted the protective order.

Because Ward was ultimately unable to obtain through discovery sufficient information pertaining to the exact source of his infection and how the exposure occurred, he was unable to obtain a required  “affidavit of merit” signed by a medical expert supporting his negligence claim against Summa. Summa sought and was granted dismissal of Ward’s lawsuit based on Ward’s failure to produce an affidavit of merit.

Ward appealed, arguing that the trial court had erred in granting a protective order that prevented Ward from questioning Debski about his own medical status at the time he operated on Ward. On review, the 9th District Court of Appeals reversed the trial court’s order dismissing Ward’s lawsuit and remanded the case for further proceedings. The appellate panel held that the doctor-patient privilege set forth in R.C. 2317(B)(1) bars testimony by a doctor about the medical condition or treatment of that doctor’s patient, but does not bar testimony by a doctor about the doctor’s own medical condition. Debski sought and was granted Supreme Court review of the 9th District’s ruling.

Attorneys for Debski assert that the 9th District’s decision in this case is contrary to several recent Supreme Court of Ohio decisions including Roe v. Planned Parenthood Southwest Ohio Region (July 2009) that have held that the physician-patient privilege bars a litigant from compelling disclosure of confidential medical records or testimony by a physician about a non-party to that litigation. In this case, they argue, Dr. Debski is not named as a defendant in Ward’s lawsuit against Summa, and therefore under this Court’s prior decisions Ward cannot compel disclosure of information about his diagnosis or treatment for a medical condition.

Attorneys for Ward respond that the Supreme Court’s rulings in Roe and other cases cited by Summa are not applicable to this case because those cases involved attempts by a litigant to compel disclosure by a provider of medical services about the diagnosis or treatment of a third party. In this case, they assert, Ward did not seek testimony by Debski about the medical condition or treatment of one of his patients, but rather sought to question Debski about his own medical condition at the time he operated on Ward. They urge the Court to affirm the 9th District’s holding that nothing in R.C. 2317(B)(1) extends the physician-patient privilege to bar testimony by a person who happens to be a medical professional about his or her own medical condition when that condition is a relevant factor in a case before a court.

Contacts
Douglas G. Leak, 216.615.4835, for Dr. Robert Debski.

Michael J. Elliot, 330.376.1440, for Donald and Susan Ward.

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May State Indict Defendant for 'Possession of Criminal Tools' Based on Intent to Violate Federal Law?

Or Must Underlying ‘Criminal’ Conduct Be a Violation of State Law?

State of Ohio v. Welton Chappell, Case no. 2009-2131
8th District Court of Appeals (Cuyahoga County)

ISSUE: Is an indictment for possession of criminal tools under R.C. 2923.24 invalid if it fails to assert that the defendant intended to use the offending items to violate a state law, or may a valid indictment be predicated solely on the defendant’s intent to use the offending items to violate a criminal provision of federal law or a municipal ordinance?

BACKGROUND: Welton Chappell of Cleveland was indicted on three criminal charges including possession of criminal tools under R.C. 2923.24 when he admitted having a computer with illegal software, blank DVDs and CDs and other items in his car for the purpose of duplicating copyrighted movies and music disks and selling the pirated copies.

Chappell was acquitted of one charge by a jury and the trial court dismissed a second count after the jury could not reach a verdict and a mistrial was declared. Chappell then sought and was granted a court order requiring the Cuyahoga County prosecutor to provide him with a bill of particulars stating what specific criminal conduct was the basis for the remaining count of possession of criminal tools.
The prosecutor provided a bill of particulars specifying that the criminal conduct underlying that count was an intent to violate criminal provisions of the federal copyright laws.

Chappell subsequently entered a motion seeking  dismissal of the possession of criminal tools charge. He argued that a valid indictment for violating R.C. 2923.24 requires the state to allege that the offending items were possessed with an intent to commit a “crime,” which under Ohio law means an offense prohibited by the Ohio Revised Code. The trial court granted the motion to dismiss, holding that because the indictment and bill of particulars submitted by the state in support of the criminal tools charge cited only an intended violation of federal law, and did not identify any state law that Chappell intended to violate by using those items, the indictment was invalid. On review, the 8th District Court of Appeals affirmed the ruling of the trial court. The prosecutor sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for the state argue that the plain language of R.C. 2923.24 defining the offense of possession does not require that an offender possess an item with the intent of violating a state law, but merely prohibits the possession or control of an item “with purpose to use it criminally.”  They contend that legislature could have limited the language of the criminal tools statute, as it has limited the language of other statutes, to apply only to violations of the Ohio Revised Code.  By instead  using the general term “criminally,” they assert, the legislature indicated intent that the statute be broadly applicable to items used with an intent to commit any conduct that constitutes a criminal offense − regardless of whether that offense is defined by a state law, a federal law or a local ordinance.

Attorneys for Chappell urge the Court to affirm the lower courts’ holdings that Ohio’s criminal tools statute must be read in combination with R.C. 2901.03(A) and (B), which specifically state that “(n)o conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code,” and that “an offense is defined when one or more sections of the Revised Code state a positive prohibition ... and provide a penalty for violation of such prohibitions.”  In this case, they say, Chappell could validly be charged with violating the state criminal tools statute only if the prosecutor alleged that items in his possession were intended for use in connection with an offense defined in the Revised Code and punishable under its provisions.

They point out that the underlying conduct identified in Chappell’s indictment and bill of particulars is copyright infringement, which is not only not an offense defined by or punishable under the Ohio Revised Code, but is conduct the state is explicitly barred from prosecuting or punishing because the federal government has preempted the field of copyright enforcement.  In light of the fact that the state could not and did not charge Chappell with  copyright infringement, they assert, the lower courts correctly found that federal copyright infringement could not serve as the “underlying crime” to support a valid indictment for violating the state law against possession of criminal tools.”

Contacts
Thorin Freeman, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

Joseph T. McGinness, 216.525.0553, for Welton Chappell.

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Does Court's Failure to Advise Defendant's Wife of Right Not To Testify at Husband's Trial Require a New Trial?

Or Must Appeals Court Find Wife’s Testimony ‘Changed Outcome’ of Trial

State of Ohio v. William N. Davis, Case no. 2009-2208
8th District Court of Appeals (Cuyahoga County)

ISSUE: When a trial court fails to make a required determination that the wife of a criminal defendant called as a state witness at the trial of her husband understands her right to decline to testify, and the defendant does not enter an objection to the wife’s testimony, is an appellate court that later notices the trial court’s error required to automatically reverse the defendant’s convictions as “plain error” and order a new trial, or may the court of appeals order a new trial only if it makes a specific finding that, but for the wife’s testimony, the outcome of the trial would have been different?

BACKGROUND:  Ohio Evidence Rule 601(B) provides that the spouse of a criminal defendant is not competent (not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify.

In this case, William Davis of Cleveland was charged with 19 counts of rape and other sexual offenses committed over an extended period of time against two young girls who were his nieces. At his trial, Davis’ wife, Alberta Davis, was listed as a potential witness on both the prosecution’s and  the defendant’s witness lists. The victims testified in court and gave detailed accounts of multiple incidents  in which Davis engaged in sex acts with them.

When Mrs. Davis was called to testify and identified herself as the defendant’s wife, the trial judge did not engage in a required discussion with her to determine if she was aware of her right not to testify or to confirm that she had freely chosen to testify with the understanding she could not be compelled to do so. Defense counsel did not object to the calling of Mrs. Davis as a witness by the state and did not object to the court’s failure to review her competency before permitting her to testify. During her testimony Mrs. Davis indicated that she had no direct knowledge about her husband’s alleged assaults on the victims, gave inconsistent responses regarding whether she believed that the victims were telling the truth and confirmed details of conversations she had with her husband while he was in jail awaiting trial.

Davis was convicted on multiple counts of rape of a child under the age of 13 and other charges, and sentenced to life in prison.  Davis appealed his convictions, but did not raise as an assignment of error the trial court’s failure to make a competency determination before allowing his wife to testify. On review, the 8th District Court of Appeals sua sponte (on its own initiative) took note of the absence of a competency determination, and ruled that that mistake constituted “plain error.”  Without analyzing the impact of Mrs. Davis’ testimony on the outcome of the case, the court of appeals held that it was “compelled” by the Supreme Court of Ohio’s earlier decisions in State v. Adamson (1995) and State v. Brown (2007) to reverse Davis’ convictions and remand the case for a new trial based on the absence of a competency determination.  The state sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for the state argue that, while the 8th District correctly recognized the trial court’s error in failing to engage in a competency discussion with Mrs. Davis before allowing her to testify, the court of appeals failed to complete the mandatory second step of  “plain error” analysis by evaluating the relative importance of Mrs. Davis’ testimony to her husband’s convictions.

They point out that in both the Adamson and Brown decisions cited by the 8th District, this Court specifically found that the spousal testimony at issue in those cases was critical to establishing the guilt of the witness’ spouse, and therefore met the second requirement for reversal as “plain error,” which is that the trial court’s error must have had a significant impact on the outcome of the defendant’s trial. In this case, they assert, Mrs. Davis’ testimony was of minor importance compared to the detailed testimony of the rape victims describing the sex acts performed on them and identifying Mr. Davis as their assailant, and in any case the court of appeals’ opinion includes no analysis of the relative importance of the spousal testimony and makes no finding that Mrs. Davis’ testimony was crucial to the outcome of her husband’s trial. Therefore, they urge the Supreme Court to reverse the 8th District’s ruling and remand the case to that court with a directive to conduct the second step of the plain error analysis and to order a new trial only upon a finding that Davis probably would have been acquitted if his wife’s testimony had not been admitted.

Attorneys for William Davis argue that under Evidence Rule 601(B) one spouse is presumed incompetent to give testimony against the other spouse in a criminal case, and that presumption can be overcome only where a trial court makes a careful determination on the record that the prospective witness clearly understands his or her right not to testify, and freely chooses to forego that right. In this case, they say, the trial judge made no effort to advise Mrs. Davis of her right not to testify, or to instruct her that she was under no compulsion to do so despite the fact that she had been subpoenaed to appear in court. While the court of appeals made no explicit finding that Mrs. Davis’ testimony was crucial to the outcome of her husband’s trial, they argue, such a finding was implicit in the court’s comments noting that Mrs. Davis’ testimony indicated that she was unsure about her husband’s innocence and disclosed the content of personal conversations between the spouses while she was visiting him in prison.

Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

Katherine Szudy, 614.466.5394, for William Davis.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.