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THIS ISSUE

Insurance Law &Personal Injury

BAR JOURNALOF THE CLEVELAND METROPOLITAN BAR ASSOCIATION

VOL. 6 NO. 7 | FEBRUARY 2014

Cleveland Metropolitan Bar Journal feBruary 20142 |

The Bar Journal of the Cleveland Metropolitan Bar Association (ISSN 0160-1598) is published monthly, with the exception of July and August, by the Cleveland Metropolitan Bar Association, 1301 East 9th Street, Second Level, Cleveland, Ohio 44114-1253. Periodical postage paid at Cleveland, OH. POSTMASTER: Send address changes to Bar Journal of the Cleveland Metropolitan Bar Association, 1301 East 9th Street, Second Level, Cleveland, OH 44114-1253.

Phone (216) 696-3525, fax (216) 696-2413, www.clemetrobar.orgFree to members. Subscriptions are $35 per year.

David R. Watson, PublisherMelanie M. Farrell, EditorJacqueline F. Baraona, Designer

CLeveLand MetroPoLItan bar assoCIatIon offICersJonathan Leiken, PresidentBruce G. Hearey, President-ElectAnne Owings Ford, Vice PresidentG. Christopher Meyer, TreasurerDarrell A. Clay, Vice President of MembershipSonali B. Wilson, Vice President of Diversity & InclusionDavid R. Watson, Secretary

CMba board of trusteesAnn-Marie AhernKarl A. BekenyCathleen M. BolekBrent M. BuckleyHon. Michael P. DonnellyIan N. FriedmanJoseph N. GrossGregory G. GuiceJason Hillman

Scott M. LewisMajeed G. MakhloufRaymond M. MaloneMarlon A. PrimesCarole S. Rendon Richik SarkarHon. Joan C. SynenbergPhyllis A. UlrichDarlene E. White

Craig M. Boise, Law School DeanBruce M. Hennes, Public Rep.Ginger F. Mlakar, CMBF PresidentLawrence E. Mitchell, Law School Dean Tom Mlakar, Legal Aid Rep.Joseph D. Roman, Public Rep.Carter E. Strang, Past PresidentTheresa N. Turk, YLS Rep.

CLeveLand MetroPoLItan bar foundatIon offICersGinger F. Mlakar, PresidentThomas L. Feher, Vice PresidentDrew T. Parobek, TreasurerHugh E. McKay, Vice President of EndowmentLarry W. Zukerman, Vice President of Special EventsDavid R. Watson, Secretary

CMbf board of trusteesRobert D. Anderle Barton A. Bixenstine Mitchell G. Blair Eric R. GoodmanShelly K. HillyerRonald V. JohnsonHon. Diane J. Karpinski (retired)Patrick J. Krebs Dennis R. Lansdowne

John T. Mulligan Bethanie R. MurrayDavid M. Paris Sarah K. Rathke Susan L. RaceySteven H. SteinglassRosemary Sweeney Stephanie E. Trudeau E. Mark Young Deborah W. Yue

Jillian Eddy, Community Trustee Bruce G. Hearey, Ex Officio Trustee Jonathan Leiken, Ex Officio TrusteeLynn A. Lazzaro, Past PresidentMegan O’Bryan, Community TrusteeCatherine O’Malley Kearney, Community TrusteeKimberly A. Textoris, Ex Officio Trustee

JournaL advertIsIng rePresentatIvesJohn Moore (216) 531-4044 Chris Allen (216) 736-8601

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The Cleveland Metropolitan Bar Journal has been printed on recycled paper since 1993.

Cleveland Metropolitan Bar JournalfeBruary 2014www.CleMetroBar.org | 3

feBruary 2014

33 New MeMbers

QU

ICK

GU

IDE

21 new members

31 CmbA CAlendArs

32 ClAssifieds

35 mVP ProViders

35 Cle

36 briefCAse

38 Attorney disCiPline

Avalon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2The Avenue District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22E.V. Bishoff Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Excelsior Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Frantz Ward LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Gallagher Sharp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hennes Paynter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33The Catholic Diosese of Cleveland . . . . . . . . . . . . . . . . . . . 15Major Legal Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Meaden & Moore. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Micro Systems Management . . . . . . . . . . . . . . . . . . . . . . . . 14Oswald Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Rutter & Russin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Sutter & O’Connell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24SS&G Parkland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Thacker Martinsek LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Ulmer & Berne LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Weston Hurd LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

DEPARTMENTS07 from THE cmba

prESIdEnT Justice All Over the Place: A Lawyer’s Bedtime Story For Kids Jonathan Leiken

16 donor SpoTlIgHT Porter Wright Morris & Arthur Ginger F. Mlakar

18 nomInaTIonS

20 yoUr clE mETro bar Membership Promotion, CLE Thank You, and Upcoming Events

FEATuRES09 bEwarE of THE

“bErmUda form” arbITraTIon provISIon In a commErcIal lIabIlITy InSUrancE polIcy By Chris Bator

11 oHIo SUprEmE coUrT caSE may ImpacT SIgnIfIcanTly covEragE caSE SETTlEmEnTS By Paul A. Rose

Caroline L. Marks

13 IT’S noT form ovEr SUbSTancE: procEdUral fUndamEnTalS of makIng and rEvIEwIng a claIm By Michael Brittain

K. James Sullivan Kevin M. Young Karl A. Bekeny Jennifer L. Mesko

22 dETErmInIng prIorITy of InSUrancE covEragE — a STEp-by-STEp gUIdE By Richard C.O. Rezie

uNDERSTANDiNg YouR

PRoFESSioNAl liAbiliTY PolicY

DETERMiNiNg PRioRiTY oF iNSuRANcE covERAgE — A STEP-bY-STEP guiDE

DIVERSITY&INCLUSIONA COMMITTEE OF THE CLEVELAND METROPOLITAN BAR ASSOCIATION

22

27

08 UPComing eVent

16 donor sPotlight

27 UndErSTandIng yoUr

profESSIonal lIabIlITy

polIcy: wHaT yoU nEEd

To know By Bob Rutter

Al Stephens

29 SUppoSE yoUr vEHIclE IS

“rEar-EndEd,” can yoU

rEcovEr for “rESIdUal

dImInUTIon In valUE”? By E. Richard Stege

Erick J. Nevin

FEATuRES coNTiNuED

Cleveland Metropolitan Bar Journal FeBruary 2014 www.CleMetroBar.org4 |

2014Annual

Golf Outing

Save the date!

Monday, June 9Shaker Heights Country Club

Save the Dategreet the Judges & gCsThursday, May 22, 2014 at Café Sausalito

Please plan to join us to connect with friends and colleagues, old and new.

| 5| 5 | 5

I will attend Rock the Foundation 9! i will purchase _______ main event tickets at $125 each (*$25 tax deductible). 2 Main Event tickets may be purchased for a discounted price of $225 (savings of $25)

i will purchase _______ (up to two) main event tickets at $100 each because i am a judge, a gov’t attorney, an attorney at a non-profit, or a yls member.

2 Main Event tickets may be purchased for a discounted price of $175 (savings of $25)

i am a Cmbf fellow. *Call (216) 539-5974 for special pricing!

total $_______________

name _________________________________________________________

Company _______________________________________________________

Address ________________________________________________________

City _____________________________state ________ Zip _____________

email __________________________________________________________

Check enclosed (payable to the Cleveland metropolitan bar foundation) Visa mastercard American express discover

Credit Card # _______________________________exp. date ____________

signature _______________________________________________________

Saturday, march 22, 2014at the House of blues

ViP reception 6 –7 p.m.main event 7–11 p.m.

enjoy great food, open bar, live music from local favorite band shoUt, dancing, raffles and more!

WeaR youR FavoRIte Cleveland geaR to shoW youR hometoWn pRIde!

Rock the Foundation benefits the award-winning public outreach programs funded by the Cleveland Metropolitan Bar Foundation, including The 3Rs, which is making a positive difference in the Cleveland and East Cleveland City Schools.

Complete thIs FoRm and RetuRn to attn: Tressa mazzocca

cleveland metropolitan bar foundation1301 East ninth Street, 2nd level

cleveland, ohio 44114fax: (216) 696-2413

[email protected]

event Presented by:

FoundationROCKTHE

This year, we’re showcasing all the reasons...

cleveland rocks!


2014 william J. o’neill great lakes regional bankruptcy Institute

The bankruptcy line-Up

who’s Up and what’s the Pitch

May 20 & 21global center for Health Innovation

Visit www.Clemetrobar.org for more information.


I have young kids. My youngest is seven. Over the years, often at bed-time when I’m tucking them in, they ask me about my job.

“Dad, what’s your job?”“I’m a lawyer.”

“But what is a lawyer?”“A lawyer is someone who helps people.”“Like a doctor?”“Not quite.”It’s hard to explain to a child what a lawyer

is and what a lawyer does. Even when you try, and they nod and pretend to understand, it’s hard to feel confident that they get it.

I’ve felt kind of stumped about this for years. So, I tried to put a few thoughts together to make sense of our amazing profession in a way that my young kids might understand, and maybe other kids too. I share this with you in case you’ve had the same problem, or in case you’ve been through this and have thoughts that you’d like to share with us. In thinking about how to explain to kids what we as lawyers do, I’m reminded why I’m so proud to do this for a living; why I love being a lawyer. For what it’s worth, here’s what I came up with ...

Listen:IMAGINE that you have been transported to a

far away place. Imagine that the place is really, re-ally beautiful, and really, really big. In one part of the land there’s deep forests, and in another there’s snowy mountains. In another there are hot sandy beaches and in another there’s windy, open fields. There are big, blue misty oceans on all sides.

Imagine that the land is filled, absolutely filled, with people of all different colors. I’m not talking about black and white. I’m talking about green and purple and yellow and polka-dot and stripes and zig-zags and every design you can possibly imagine.

Imagine that, a long time ago, a bunch of these multi-colored people got together to try

to create the perfect place to live. They wanted everyone in that far away land to be able to en-joy all the things that were cool and beautiful about the place where they lived.

Most of all, they wanted everyone to feel really, really excited about living there. They wanted people to feel inspired (which means to feel really excited about something when you wake up in the morning).

So, the multi-colored people sat down together and started talking about ideas: the best ideas they could think up to make the land really, really great and to make everyone feel inspired about living there. The ideas were about making every-thing fair, so everyone had a fair chance to have a good life in the land. The ideas were about not hurting one another, and not doing mean things to one another. The ideas were meant to encour-age people to come up with new inventions, to try new things, to write music and paint paintings, to do whatever people wanted to do with their lives.

Sometimes the people didn’t agree about which ideas were the best, sometimes they even argued, but they did the best they could to sort them out. And those ideas that people thought were the best ones they wrote down in a big huge book. And that book of ideas became a book of rules for the land. A rule, after all, is just an idea that people follow.

Because the land was so big, and because there were so many people, they needed lots of ideas to help make everything work better. And so they needed lots of rules in that big book. Sometimes they needed to change the rules to try to make them better, and they always needed new ideas and new rules because things kept changing and growing so fast. Every day, someone would come up with some new invention that would change everything. Cities grew up, and airplanes appeared and rocket ships and computers and electric guitars.

When the ideas worked, and when the rules worked just right and things were fair and people were free to do creative things, the multi-colored people called it Justice.

Sometimes, though, some of the multi-colored people forgot to follow the rules. Or, sometimes people found the rules confusing and couldn’t figure out how to follow them. Sometimes people made mistakes and needed a time-out because they broke the rules.

And so people decided that someone in the land needed to be a helper, a person who helped other people to understand the ideas in the big rule book, or to remember them, and how to follow them. The person was a like a guide, and a teacher, and a helper and a reminder about the ideas in the book, and how the land was created in the first place.

That person was called a lawyer. The people they helped were called clients, which could be a person or even a group of people trying to grow and build something together. Sometimes the lawyers helped their clients get through scary tunnels. Sometimes the lawyers were teachers, explaining the rules so their clients could understand. Sometimes the lawyers stood up for their clients, explaining to others how the client tried to follow the rules. And whenever lawyers really helped their clients, Justice spread all over the place.

***That land, Sascha, is where we live.Being a lawyer is what I do.And I’m really, really lucky.Good night. Tomorrow, I hope you create

something you love.

Jonathan Leiken is a former federal prosecu-tor in the Southern District of New York and a partner in the global Corporate Criminal Investigations practice at Jones Day. He defends companies and individuals in signifi-cant government investigations and complex litigation, and at trial. He can be reached at (216) 586-7744, (212) 901-7256 or at [email protected].

from the president

Jonathan Leiken

Justice all over the placeA Lawyer’s Bedtime Story For Kids


you’Re InvIted2014 dIveRsIty & InClusIon ConFeRenCetuesday, maRCh 1112:45 – 4 p.m.

aloft cleveland downtown1111 west 10th street, Cleveland, 44113

3.00 hours of clE requested

Join us as we feature nationally recognized speaker Kathleen nalty to discuss exciting initiatives and action plans that take our firms to the next

level-retaining and advancing the legal community to generate a truly inclusive

work force.

cmba Inclusion Innovation awards Join us for a reception immediately following the conference to honor the following individual leaders in our community who promote diversity and inclusion in their workplace and throughout Cleveland:

inajo davis Chappell Adam fishmanwilliam m. warren (awarded posthumously)sanford watson

Sponsorship opportunities also available. To register or receive more information, please contact (216) 696-3525.

DIVERSITY&INCLUSIONA COMMITTEE OF THE CLEVELAND METROPOLITAN BAR ASSOCIATION


BAR JOURNALFEATuRE

bY chRiS bAToR

B usinesses are usually focused on the coverages afforded by a specific liability policy and pertinent exclusions both when purchasing a

liability policy and making a claim. Sometimes the provisions of the policy providing the mechanism to resolve a coverage dispute with the carrier can be overlooked. This can create a significant and costly issue for the policyholder, especially if the policy contains the “Bermuda Form” arbitration provision.

The Bermuda Form arbitration provision, named after the location where the provision originated, consists of two primary components. The first is that any dispute relating to the policy shall be determined in London, England under the provisions of the English Arbitration Act of 1996. The second is that substantive issues are to be construed in accordance with the internal laws of the state of New York and applied in an “evenhanded fashion” as between the policyholder and insurance carrier. Thus, the U.S. common law that ambiguities are to be construed in favor of the policyholder is eliminated. A sample Bermuda Form arbitration provision taken from a policy issued by XL Insurance (Bermuda) Ltd. is set forth below:

e. arbitration(1) Any dispute, controversy or claim arising out of or relating to this Policy or the breach, termination or invalidity thereof shall be finally and fully determined in London, England under the provision of the Arbitration Act of 1996 (“Act”) and/or any statutory modifications or amendments thereto, for the time being in force, by a Board composed of three arbitrators to be selected for each controversy as follows:

Any party may, in the event of such a dispute, controversy or claim, notify the other party or parties to such dispute, controversy or claim of its desire to arbitrate the matter, and at the time of such notification the party desiring arbitration shall notify any other party or parties of the name of the arbitrator selected by it. The other party who has been so notified shall within thirty (30) calendar days thereafter select an arbitrator and notify the party desiring arbitration of the name of such second arbitrator. If the party notified of a desire for arbitration shall fail or refuse to nominate the second arbitrator within thirty (30) calendar days following the receipt of such notification, the party who first served notice of a desire to arbitrate will, within an additional period of thirty (30) calendar days, apply to a judge of the High Court of Justice of England and Wales for the appointment of a second arbitrator and in such a case the arbitrator appointed by such a judge shall be deemed to have been nominated by the party or parties who failed to select the second arbitrator. The two arbitrators, chosen as above provided, shall within thirty (30) calendar days after the appointment of the second arbitrator choose a third arbitrator. In the event of the failure of the first two arbitrators to agree on a third arbitrator within said thirty (30) calendar day period, either of the parties may within a period of thirty (30) calendar days thereafter, after notice to the other party or parties, apply to a judge of the High Court of Justice of England and Wales for the appointment of a third arbitrator, and in such cases the person so appointed shall be deemed and shall act as the third arbitrator. Upon acceptance of the appointment by said third arbitrator, the Board of Arbitration for the controversy in question shall be deemed fixed. All claims,

demands, denials of claims and notices pursuant to this Section E shall be given in accordance with Section A of Article VII.

f. Construction and InterpretationThis Policy, and any dispute, controversy or claim arising out of or relating to this Policy, shall be governed by and construed in accordance with the internal laws of the State of New York, except insofar as such laws:

(1) may prohibit payment in respect of punitive damages hereunder, as to punitive awards in the underlying action.

(2) pertain to regulation under the New York Insurance Law, or regulations issued by the Insurance Department of the State of New York pursuant thereto, applying to insurers doing insurance business, or issuance, delivery or procurement of policies of insurance, within the State of New York or as respects risks or insureds situated in the State of New York; or

(3) are inconsistent with any provision of this Policy;

provided, however, that the provisions, stipulations, exclusions and conditions of this Policy are to be construed in an evenhanded fashion as between the Insured and the Insurer, without limitation, where the language of this Policy is deemed to be ambiguous or otherwise unclear, the issue shall be resolved in the manner most consistent with the relevant provisions, stipulations, exclusions and conditions (without regard to authorship of the language, without any presumption or arbitrary interpretation or construction in favor of either the insured or the insurer or reference to the “reasonable expectations” of either thereof or to contra proferentum and without reference to parol or other extrinsic evidence). To the extent that New York law is inapplicable by virtue of any exception or proviso enumerated above or otherwise,

Beware of the “Bermuda Form” arbitration provision in a Commercial liability Insurance policy


and as respects arbitration procedure pursuant to Section E, the internal laws of England and Wales shall apply.

If there is a coverage dispute with the carrier, the policyholder cannot ignore the arbitration provision or attempt to negate it. The policyholder may, for example, file a declaratory judgment action in a U.S. court attempting to strike the Bermuda Form arbitration provision on choice of law principles. The carrier, however, can attack the lawsuit and stop it in its tracks. The carrier can obtain an ex-parte order from the Commercial Court in London, England enjoining the policyholder from continuing with the U.S. based lawsuit simply on the basis that the policy incorporates the Bermuda Form arbitration provision. Such an order can further provide that failing to abide by the injunction order can result in the policyholder being subject to contempt, fines and even imprisonment. If the policyholder is a corporation, the order can apply to both directors and officers of the corporation. If the policyholder has property or business in England, or if its directors or officers travel there, such an order can be a real concern and should not be ignored. An attempt to have the U.S. court dissolve the London-based antisuit injunction order could also be considered a violation of the order.

The end result is that the U.S. based policy-holder must pursue its coverage dispute in Lon-don, England pursuant to the English Arbitration Act of 1996, with the application of New York substantive law. Although not absolutely neces-sary, the policyholder is best protected by engag-ing local counsel in London with specific expe-rience in Bermuda Form arbitrations. Because of the English system of jurisprudence, this will entail engagement of both a solicitor attorney to assist with pleadings and discovery and a barris-ter who can present and argue the case to the ar-bitration tribunal. In addition, local counsel with significant New York substantive law experience may also be worthwhile. Needless to say, this will create a significant expense for the policyholder.

As the arbitration proceeds, the first order of business will be to appoint an arbitration tribu-nal in accordance with the procedures set forth in the Bermuda Form arbitration provision of the policy and the English Arbitration Act of 1996. There is a group of barrister attorneys in London who routinely act as arbitrators and litigate pur-suant to these provisions on behalf of either poli-cyholders or carriers. The input of local counsel in London on this issue is thus critical. Once the arbitration tribunal is appointed, the parties and panel will prepare what is known as a “First Order for Directions,” which is similar to a case management plan in the United States. Because pleading and discovery are quite different in Eng-

land than in the United States, reliance on local counsel is again a necessity.

If you should be faced with a Bermuda Form arbitration provision in a dispute with a car-rier, I strongly recommend that you obtain and review a copy of the book titled Liability Insur-ance in International Arbitration, the Bermuda Form (Second Edition) by Richard Jacobs, QC, Lorelie S. Masters and Paul Stanley, QC. The book provides an excellent explanation of the Bermuda Form arbitration provision and how the procedure works.

Businesses should review their liability poli-cies to determine whether any contain the Ber-muda Form arbitration provision. If possible, the policyholder should discuss this provision with its broker at the time of policy purchase or re-newal to obtain a policy providing the required coverage that does not contain this provision. Otherwise, the policyholder can be in for a rude awakening if a coverage dispute should arise.

Chris Bator is counsel with Baker-Hostetler LLP. He is a member of the firm’s litigation practice group and focuses on advising clients concern-ing insurance coverage issues and

the resolution of coverage disputes. He has been a CMBA member since 1987. He can be reached at (216) 861-7372 or [email protected].


BAR JOURNALFEATuRE

Ohio long has permitted wide latitude to parties in structuring and timing settlements of their insurance

coverage cases, and this flexibility has served well the interests of policyholders, insurers, and Ohio’s courts. Currently before the Supreme Court of Ohio, however, is a case that may as a practical matter alter significantly the abilities of parties in coverage cases to settle in ways that best suit their individual interests and best serve the state’s interest in the orderly administration of justice. The decision in that case, Lincoln Electric Company v. Travelers Casualty and Surety Company, et al., Supreme Court of Ohio Case No. 2013-1088, is one that Ohio’s insurance coverage practitioners should await with great interest.

In Lincoln Electric, the Supreme Court of Ohio accepted for review the following question certified by the United States District Court for the Northern District of Ohio: “May an insured who has accrued indemnity and defense costs arising from progressive injuries, and who settles resultant claims against primary insurer(s) on a pro rata allocation basis among various primary insurance policies, employ an ‘all sums’ method to aggregate unreimbursed losses and thereby reach the attachment point(s) of one or more excess insurance policies?”

The Lincoln Electric case involves a policyholder with long-tail bodily injury coverage claims arising from alleged exposure by persons to the policyholder’s welding products. The underlying welding product claims span many policy years. The policyholder settled with its primary insurer for less than the total limits of all policies issued by that insurer for all implicated years, and the policyholder now seeks to recover from its excess insurers for

unreimbursed portions of these claims that reach and penetrate into the policyholder’s excess policies.

The certified question is a complex one, which implicates four long-standing doctrines of Ohio insurance coverage law: (1) Ohio’s law of “trigger,” which provides that all policies on the risk from the date of an underlying claimant’s first exposure to allegedly harmful substances through the date of manifestation of injury or disease are implicated by the claim (see, e.g., Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835); (2) Ohio’s law of “allocation,” which provides that the policyholder may allocate its insurance claim to any triggered policy, each of which provides coverage up to its stated limits for “all sums” the policyholder is legally obligated to pay (see, e.g., Pennsylvania Gen. Ins. Co. v. Park-Ohio Industries, 126 Ohio St.3d 98, 2010-Ohio-2745, 930 N.E.2d 800); (3) Ohio’s law regarding “drop-down” liability, which provides that an excess insurer is not required to “drop down” to pay claims that do not reach its stated attachment point but must pay covered claims that reach its attachment point, regardless of whether a directly underlying insurer has paid its full limits (see, e.g., Wurth v. Ideal Mut. Ins. Co., 34 Ohio App.3d 325, 518 N.E.2d 607 (12th Dist.1987)); and (4) Ohio’s law of contribution, which provides that a selected paying insurer has certain equitable rights of contribution against other triggered insurers (see, e.g., Goodyear, supra).

In regard to complex coverage cases, such as environmental or asbestos cases, these four doctrines have operated in concert to permit policyholders to settle with their insurers at various times before or during coverage actions, often on varying bases that have suited the particular

circumstances of the settling parties, without effecting a forfeiture of any coverage by the policyholders and without causing any undue disadvantage to any insurers, regardless of whether they settle. Because complex coverage cases typically would take many years to proceed through trial and subsequent appeals, typically causing the parties considerable expense and costing the courts considerable resources, the beneficial effects of these doctrines, which permit and promote settlements of such cases, have been inestimable.

Correspondingly, the practical and public policy implications of the Supreme Court of Ohio’s consideration of the certified question are potentially profound. The insurers in the case have contended, in effect, that by settling with its primary insurer, which issued policies spanning many years, the policyholder has elected to allocate its claim horizontally among multiple triggered years, which is akin to a pro-rata allocation approach and contrary to Ohio’s “all sums” law, which was articulated by the Supreme Court of Ohio in Goodyear and recently re-affirmed by that Court in Park-Ohio. In the view of the insurers in Lincoln Electric, the policyholder has, in effect, forfeited its right to avail itself of Ohio’s “all sums” law and has, instead, relegated itself to recover from the excess insurers only those amounts that would be available to the policyholder under a pro rata allocation approach.

Depending upon the facts of the particular case, such a rule of law could significantly diminish or even eliminate a policyholder’s potential recovery under excess policies. Primary insurers, like all other litigants, typically settle only if there is a benefit to them in doing so. That benefit usually includes a discount from the cumulative primary policy limits in all triggered years. Until now, policyholders who settle with

ohio supreme Court Case May Impact significantly Coverage Case settlements bY PAul A. RoSE & cARoliNE l. MARkS


their primary insurers for an amount less than a targeted overlying excess insurer’s attachment point become self-insured for the gap and have to absorb as a “self-insured” amount the differential between the settlement payment and the excess insurer’s attachment point. If this principle is expanded, as Lincoln Electric’s insurers advocate, so that a policyholder settling a claim triggering multiple primary policies is required to absorb as a self-insured amount the difference between the settlement payment and the cumulative limits of all settled primary policies — instead of having to absorb as under current law only the difference between the settlement amount and the attachment point of a particular targeted excess insurer — then policyholders that settle with primary insurers will risk de facto forfeiture of excess coverage. In cases in which policyholders have many years of primary coverage and primary insurers that are unwilling to settle for amounts close to the cumulative limits of all of their policies — a common situation — policyholders effectively will be precluded from settling with their primary insurers.

The permutations, variations, and nuances of this public policy conundrum

are numerous, particularly in regard to large long-tail claims and complex coverage programs that span decades and provide coverage reaching into the hundreds of millions of dollars per year. Depending upon the Supreme Court of Ohio’s decision in Lincoln Electric, the methods employed by policyholders and insurers alike and embraced by courts throughout Ohio to manage and resolve complex insurance coverage cases may have to change considerably. The default outcome of a trial against all insurers that proceeds for weeks or months following years of litigation, which is a type of trial previously seen only rarely in Ohio, may become the standard course for such cases.

Briefing in the Lincoln Electric case is scheduled to conclude in the first quarter of 2014, which makes possible and perhaps likely a decision being issued in the case before the end of the year. That decision may determine whether parties in complex coverage cases may continue to settle such cases as parties traditionally have done, with the policyholder settling with each insurer at the time and on the basis that best suits that insurer, or whether the parties may have no effective choice in many cases but

to refrain from settling and instead proceed through trial.

Paul A. Rose is a partner in the Akron office of Brouse McDowell, where he heads the firm’s insurance recovery practice group. He can be reached at

(330) 535-5711 or [email protected].

Caroline L. Marks is a partner in the Cleveland office of Brouse McDowell and a member of the firm’s insurance recovery practice group. She has been a

CMBA member since 2006. She can be reached at (216) 830-6830 or [email protected].

Both regularly represent policyholders in complex insurance recovery matters, and both have been certified by the Ohio State Bar Association as Specialists in Insurance Coverage Law. Mr. Rose and Ms. Marks represent more than 20 trade organizations and companies which have appeared as amici curiae in support of the policyholder in the Lincoln Electric case.


BAR JOURNALFEATuRE

When facing a third-party claim, a policyholder and its insurer will focus significant attention on the substantive question of whether that claim is covered

under the applicable insurance policies. In this article, Calfee policyholder-side coverage lawyers and Tucker Ellis carrier-side coverage lawyers have joined to discuss the procedural ins-and-outs of a coverage claim. Procedural issues are often overlooked for the substantive question of coverage, but these issues are important and can ultimately make the difference in whether a claim is covered.

How can a company be ready for a future claim by a third party?A company waiting until a claim hits before understanding its insurance coverage program is a poor approach. A well-thought-out risk management and insurance program can mean the difference between adequate insurance protection and financial disaster. Every company should have a risk management team in place for the procurement of insurance policies and planning and managing loss-response activities.

Once insurance policies are issued and delivered, the policyholder should carefully review them to confirm the limits, terms, and provisions. Mistakes can be easily corrected by the broker and insurance underwriter shortly after issuance and before a loss occurs. After a loss, mistakes are much harder to fix.

All policies, including historical policies, must be well-organized and readily available to the risk management team. Often, decades-old policies offer significant protection against gruesome defense and indemnity costs for claims such as asbestos and environmental exposures. When facing a covered loss, a misplaced policy is the same as losing a stack of cash.

a third party makes a claim against a company. What now?Whenever a loss or claim happens, the policyholder should review all potentially applicable policies to determine if they provide coverage. A single loss or claim may trigger a number of different policies. For example, claims that fall within the coverage of commercial general liability (CGL) policies may include allegations and claims that are also covered under Directors and Officers (D&O) policies.

After identifying the potentially applicable policies, prompt notice should be given under all of the policies. For large claims, the safest approach is to notify all primary, umbrella, and excess carriers at the same time. Depending on the circumstances, notice of a loss or claim may be given by the policyholder, its insurance broker or agent, or its outside counsel.

When should notice of a loss or claim be given to a carrier?The importance of timing cannot be overstated. Failing to give timely notice can sometimes result in a total loss of coverage. When a loss occurs or a claim is made or reasonably anticipated, notice should be

given to all relevant insurers as soon as possible. The policyholder should not make the mistake of waiting until a lawsuit is filed, because most policies consider any indication of a claim sufficient to trigger a duty to give notice. A “claim” includes things like a demand letter, or even an informal email. If a company is unsure whether something qualifies as a “claim,” it should consult with outside coverage counsel.

How is notice of a claim given to a carrier?Liability policies will typically specify the mechanics of notice: how, to whom, and when notice must be sent, as well as what the notice should include. It is important that policyholders know, take seriously, and comply fully with these provisions.

When a third party sues a policyholder, will insurance pay for the policyholder’s defense?Many liability policies, including CGL policies, provide the insurance company with the right and duty to defend any suit seeking damages covered by the policy. Other policies, such as many D&O policies, will provide for a reimbursement of defense costs paid by a policyholder.

It’s not Form over substanceProcedural Fundamentals of Making and Reviewing a Claim PolicYholDER PERSPEcTivE bY MichAEl bRiTTAiN & k. JAMES SullivAN

iNSuRER PERSPEcTivE bY kEviN M. YouNg, kARl A. bEkENY & JENNiFER l. MESko


Even if not all claims are covered, the insurer will generally defend the whole lawsuit unless, of course, the claims are all indisputably outside the scope of coverage.

In addition, some policies provide that defense costs constitute supplementary payments that do not erode the limits of liability.

What happens after an insurer receives notice of a claim?The insurer will analyze the applicable policy(ies) and review the claim along with

any pleading that has been filed to determine if coverage exists for the claim. The insurer must respond to the notice of a claim in writing within fifteen days and commence an investigation of a claim within twenty-one days of receipt of notice. Ohio Admin. Code. 3901-1-07(C)(2), (4). In addition, the insurer must advise the insured of acceptance or rejection of the claim, or the need for more time to make such a determination, within twenty-one days after receipt by the insurer of a properly executed proof of loss. To the extent additional

time is needed to assess the claim, the insurer must send the claimant an update every ninety days setting forth the need for additional time. Ohio Admin. Code. 3901-1-07(C)(12).

The carrier has multiple options for responding: (1) deny coverage; (2) defend without reserving its rights; (3) accept a defense after securing a non-waiver agreement; (4) defend under a unilateral reservation of rights; or (5) file a declaratory judgment action to determine its coverage obligations.

If the claim sets forth facts that are arguably covered under the policy, the insurer has a duty to defend the insured under Ohio law. But the insurer may accept the defense under a non-waiver agreement or a unilateral reservation of rights to preserve its coverage defenses. A reservation of rights letter provides notice that even though the insurer is agreeing to defend the policyholder at that time, some or all losses may not be covered by the terms of the policy and/or the insurer may seek reimbursement of defense costs at a later date.

What should a unilateral reservation of rights letter include?A reservation of rights letter must (1) be timely and (2) fairly inform the policyholder of the insurer’s position. To fairly inform, the insurer


should identify all of the bases for a potential coverage denial under the policy, citing all relevant policy provisions and exclusions. The reservation of rights letter also should be timely supplemented as additional grounds for denial come to the insurer’s attention. Failing to timely send a reservation of rights letter, update it, or fully explain the bases for the reservation of rights may result in a waiver of some of the insurer’s coverage defenses.

What should a policyholder do if it receives a reservation of rights or denial letter?A policyholder should promptly respond in writing to a reservation of rights or denial letter, setting forth all objections to the insurer’s positions, and detailing why the policyholder believes coverage applies based on the pleadings, known facts, and/or policy language. The letter should also reserve the rights of the insured under the policy and applicable law.

If an insurer defends its policyholder against a third-party claim, who hires the defense counsel?Some policies reserve the right to select defense counsel for the carrier, while other policies allow the insured to select counsel. Even when the insured is allowed to pick a lawyer, it is important to involve the carrier because often the policy will set guidelines limiting how much the insured’s lawyers can be paid or requiring the selection of counsel from a specific list of lawyers known as “panel counsel.” To avoid future disagreements, the policyholder and its insurer must communicate early, clearly, and regularly about these issues.

does a policyholder have to keep its insurer updated about a loss or a claim?Put simply, yes. Virtually all liability policies contain a cooperation clause that requires the policyholder and insurer to cooperate in the investigation, defense, and settlement of claims. The primary purposes of such clauses are to protect the insurer’s ability to adjust and defend the claim and to prevent collusion between the claimant and the policyholder.

The policyholder or its lawyer should regularly send the insurer updates on litigation, including pleadings and discovery. The policyholder should also submit to interviews by defense counsel and attend depositions, court hearings, and trial as reasonably requested by the insurer.

The policyholder must notify the insurer of meaningful settlement opportunities. After all, if the insured wants the carrier to pay for the settlement, the carrier has a right to participate

in the decision-making. This is not just a product of fairness; it is required by the terms of virtually every policy.

The privilege issues related to the duty to cooperate are too sticky to address substantively in this article, but it is important that policyholders and carriers consult with coverage counsel to understand the consequences before sharing privileged information.

all of these procedural hoops and hurdles make it sound like the relationship between a policyholder and its insurer is adversarial in nature. Is it?Although policyholders and their insurers sometimes get crosswise, they fundamentally share a common goal to minimize third-party claims that one or both of them might have to pay. The procedural rules are not meant to set traps; rather, they ensure that the insureds and insurers know what to expect of each other.

Michael Brittain is a policyholder insurance coverage lawyer at Calfee. He has been a member of the CMBA since 1980. He can be reached at [email protected].

James Sullivan is a policyholder insurance coverage lawyer at Calfee. He has been a CMBA member since 2004. He can be reached at [email protected].

Kevin Young is a member of the Tucker Ellis Insurance Group and co-author of Ohio Insurance Coverage (2013 Edition). He has been a member of the CMBA since

1986. He can be reached at [email protected].

Karl Bekeny is a member of the Tucker Ellis Insurance Group and co-author of Ohio Insurance Coverage (2013 Edition). He has been a member since 2002.

He can be reached at [email protected].

Jennifer Mesko is a member of the Tucker Ellis Insurance Group and co-author of Ohio Insurance Coverage (2013 Edition). She has been a member since 2011.

She can be reached at [email protected].


bY giNgER F. MlAkAR

THE clEvEland mETropolITan bar foUndaTIon’S (cmbf) $1 Million Campaign to grow its endowment to $2 million is well underway. This campaign will create a reliable funding model for the award-winning community outreach programs of the Cleveland Metropolitan Bar Association (CMBA) and CMBF long into the future. The CMBF is pleased to focus on our Founding Fellows, who have committed gifts of at least $50,000. So far, we have featured the law firm of Spangenberg, Shibley & Liber, along with the late John (Jack) D. Liber and his wife, Nancy, who have committed jointly to a $50,000 lead gift and offered a challenge to increase their gift to the $100,000 level if the CMBF is able to obtain commitments from four other firms (including gifts by members of their firms) at the $100,000 level by May 2014.

In addition to the Spangenberg law firm and Jack and Nancy Liber, our Founding Fellows include, among others, BakerHostetler; Calfee, Halter and Griswold LLP; Jones Day Foundation and Dick Pogue; Parker Hannifin Foundation; Margaret Wong & Associates, LPA; Nurenburg Paris with its partners, David Paris, Jonathon Mester, and William Jacobson; and Porter Wright Morris & Arthur (“Porter Wright”), with the lat-ter three having met the $100,000 challenge!

It is my privilege now to focus on Porter Wright, which has made a generous commitment

at the $100,000 leadership level. Porter Wright was established in 1846 and has grown to six of-fices in Ohio, Florida and Washington, D.C. One of its core values is “Give back and pay forward — to help keep the communities in which we prac-tice strong and vital.” The Cleveland office of Por-ter Wright has long been a leader and major sup-porter of the CMBA and CMBF programs, and its lawyers have been active in leadership posi-tions, including Ann Caresani, Michael Ellis, Re-becca Kopp, Hugh McKay, Fred Pompeani, and Tracey Turnbull, among others. Porter Wright encourages its lawyers to lead and provide service in programs at the CMBA. Their engagement in programs from The 3Rs to the Cleveland Home-less Legal Assistance Program to the Women in the Law Section and beyond, stands as a shining example for the profession and the community.

Hugh McKay, a commercial litigator and Partner-in-Charge of the Cleveland office, is a past president of the former Cleveland Bar As-sociation (2006–07) and the visionary behind The 3Rs: Rights, Responsibilities, Realities pro-gram (“The 3Rs”), which is in its eighth year and has impacted over 26,000 students. This program sends 500 volunteer lawyers out into the tenth grade social studies classrooms of the Cleveland and East Cleveland public schools to share a curriculum focused on the U.S. Con-stitution, to enhance the civics education and career counseling, and to help students prepare for life after high school. It is so successful that it has won numerous national awards and other

communities have used it as a model for similar programming. In his inaugural address as the Bar Association President, Hugh encouraged his fellow lawyers to roll up their sleeves and get involved by saying, “The Cleveland and East Cleveland schools are not an unsolvable prob-lem, but rather a great opportunity ... and these students are waiting for us to reach them.”

Hugh is the current Vice President of Endow-ment of the CMBF and Chair of the CMBF Fel-lows Committee. Hugh’s vision, enthusiasm and energetic “can do” leadership style set the example for other lawyers at his firm, including partner Tracey Turnbull and Senior Associate Tracy Francis, who were also interviewed for this article. Hugh captains a 3Rs team at Rhodes High School, competes in the five mile run on team “Porter Fright” at the annual Halloween Run, takes the stage at events including CMBA Sings, and works tirelessly as an officer of the CMBF board and a member of The 3Rs Committee. Hugh has been honored with both the William K. Thomas Pro-fessionalism Award and the President’s Award of the CMBA. Additionally, Hugh was among lead-ers, including Kelly Tompkins, in the creation of the CMBF’s signature Rock the Foundation event.

Q. What inspired Porter Wright to give to the endowment Campaign at the highest leadership level?

A. Hugh: The quality and impact of the CMBA programs is remarkable, but we need to assure their viability for the long term, and for the long term, the CMBF funding model needs

Lawyers Giving Back

DonorSpotlight

PoRTER WRighT MoRRiS & ARThuR

giVe bACK And PAy forwArd

tracey turnbull, hugh mcKay, and Ann Caresani


to rely more on endowment to sustain our great programs. We determined that this major gift is the best way to have a significant positive impact on the CMBF and CMBA for the long term. It inspires us to know our support will have a posi-tive impact on the quality of our bar and com-munity “in perpetuity.” And that’s a long time.

Q. Why is the firm so involved in the CMba and CMbf programs?

A. Hugh: We’ve been very actively engaged with the bar association since the early ’80s, starting with Law Day programs in the Cleve-land schools. Our lawyers have been active in leading sections and committees. We were very engaged in launching The 3Rs and speaking for myself, my mom, as a long-time teacher — in-cluding at East High — inspired me to focus on programs impacting the school kids and serving in the schools is an area where we as lawyers are especially well-suited to have a positive impact. Our passion has been with the schools and chan-neling lawyers’ energies for the good of the kids.

Q. Why are the CMba and CMbf pro-grams important to greater Cleveland?

A. Hugh: Ultimately, Cleveland will only be as strong as its kids and its schools. We have one of the greatest “law towns” in America, but we will rise or fall on how well we keep the faith with the kids of Cleveland. Cleveland lawyers are unique in being both technically great and greatly com-mitted to the community, including the schools.

A.Tracy: Although The 3Rs program is de-signed to help students prepare for the Ohio Graduation Test and help them focus on life after high school, the real benefit derived from The 3Rs is the connection made with the stu-dents during the time spent with them. It has been a rewarding and humbling experience wit-nessing the students’ excitement when we come into the classroom each month and this enthu-siasm demonstrates how just a couple hours of our time each month can make a positive impact. As a volunteer, a major takeaway from participating in The 3Rs program has been ob-serving Cleveland students taking responsibil-ity for their future — this is not only inspiring, but provides hope for this city in the future.

Q. What has involvement in the CMba and CMbf programs meant to you person-ally and to your career?

A. Hugh: It is inspiring to see how 500 or more Cleveland lawyers, for eight years, month after month, have maintained an ongoing commitment to the Cleveland school kids. It makes me very proud as a Cleveland lawyer, as there is nowhere in the country where this sort of commitment is carried out on a consistent and sustained basis. When a young woman — Jackie, who was in my 3Rs class five years ago — working at a gas station in Slavic Village, stopped me and said, “Mr. McK-

ay, that 3Rs Program at South High was the best. You lawyers are so cool,” and she ex-plained how she was now getting her degree, it hit home. We are hav-ing a big impact in ways we don’t necessarily ap-preciate — and Jackie was one of our quietist students! The positive upward movement on the Ohio Gradua-tion Test passage rate in social studies since we have been in the schools is great to see. But our ability to look nearly every Cleveland tenth grader in the eye and remind them that they have what it takes is really what inspires us, and hopefully them. As my mom said when she taught at East High, “The kids just need to know somebody be-lieves in them.” Our work in the schools benefits our lawyers as much as the kids.

A. Tracey: In law school I learned about the legal profession and the special role lawyers play in their community. I began volunteering for the bar association’s programs because it provided me with opportunities to become a part of the Northeast Ohio community. Volunteering and providing pro bono legal services has taken me to different areas in the City of Cleveland and intro-duced me to groups which in most cases, I never would have encountered on my own. These vol-unteer activities ranged from making breakfast at the Ronald McDonald house, to painting and yard work at University Settlement and the De-troit – Shoreway neighborhood, to planting hun-dreds of bulbs in the Public Square gardens.

The CMBA has also allowed me to give back by participating in the Books for Kids pro-gram, The 3Rs program, serving as a mentor to local law students and graduates through the Women in Law Section and volunteering at Homeless Legal Intake sessions and Brief Advice Clinics with Legal Aid. All of these ac-tivities enabled me to help people in different ways and truly become part of this community.

Each of these opportunities has demonstrated to me that as lawyers we do have the power to help people and improve our community. Often times it does not take much to provide significant help to a particular group or individual. Spending only

a few hours participating in one of the CMBA’s programs can make a huge difference to others in the community who need help and it will provide a sense of fulfillment that cannot be ignored.

ConclusionThere is a famous quote attributed to John Quin-cy Adams that can be applied to Porter Wright’s leadership efforts, especially in the development of The 3Rs program, “If your actions inspire oth-ers to dream more, learn more, do more and become more, you are a leader.” Since The 3Rs started in 2006, over 26,000 high school students have experienced 3Rs volunteers in their class-rooms to inspire, mentor and encourage them. On behalf of the CMBF and our community at large, we are grateful to Porter Wright for its leadership and for its constant efforts to fulfill the firm’s core values — “Give back and pay forward.”

for more information on the cleveland metropolitan bar foundation, go to www.clemetrobar.org/foundation.

Ginger F. Mlakar, President of the CMBF, is Senior Counsel and Director of Donor Relations at the Cleveland Foundation. She also practiced law for 16 years in the area of estate and charitable gift planning. She can be reached at (216) 615-7187 or [email protected].

hugh mcKay and lebron James prepare for 3rs videotaping

team Porter fright: brodie butland, tracy francis, and Karen Jones


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Members of the Cleveland Metropolitan Bar Association are invited to submit their recommendations or to apply directly for the office of vice president, as well as for at-large positions on the Association’s Board of Trustees. This nominating process is open to all Cleveland Metropolitan Bar Association members. If a member knows someone who would be a strong candidate for one of the positions listed below, please submit that person’s name with his or her consent. Members, sections and committees of the Cleveland Metropolitan Bar Association are encouraged to submit names of candidates for officer or trustee positions to the Nominating Committee. The following terms apply for these positions:

vIcE prESIdEnT will serve one year as vice president before advancing for one year to president-elect and then president.

board of TrUSTEES six member lawyers will each serve a three-year term.

The Nominating Committee will accept nominations by letter or e-mail and at two (2) meetings of members. The meetings of members will be held on Friday, February 14 and Friday, February 21 from 12:00 - 3:00 p.m. at the CMBA offices, 1301 East Ninth St., Second Level, Cleveland, OH 44114. All nominations should include the resume of the nominee, whether submitted in writing to the Nominating Committee or presented at the meeting of members.

The primary consideration in reviewing nominees is service to the Cleveland Metropolitan Bar Association. Those who are chosen have chaired or served on committees, sections and/or in CLE programs, or have been actively involved in the Bar Association.

all nominations and applications are due by 5:00 p.m. on monday, march 3, 2014.

nominations or applications should be sent to:

Cleveland Metropolitan Bar Association Nominating Committee David R. Watson, Executive Director 1301 E. Ninth St., Second Level, Cleveland, OH 44114-1253 e-mail to [email protected]


2014 2015

Cmbf2014 CmbA nominAting Committeeto be announced

2014 Cmbf goVernAnCe & nominAting Committeedennis r. lansdowne (Chair)mitchell g. blair (Vice-Chair)robert d. Anderle thomas l. feher ginger f. mlakardeborah w. yue

Please do not contact individual committee members.

The Cleveland Metropolitan Bar Foundation, the charitable arm of the Cleveland Metropolitan Bar Association, is seeking leaders who are interested in contributing service to the important fundraising activities that benefit our award-winning Justice For All pro bono and community service programs which are making a difference in our community.

Members of the Cleveland Metropolitan Bar Association are invited to submit nominations or to apply directly for the positions of Vice President, Treasurer and Trustee of the Cleveland Metropolitan Bar Foundation as described below. Pursuant to Article I of the Code of Regulations of the Foundation, applications are reviewed by the Governance & Nominating Committee of the Cleveland Metropolitan Bar Foundation, which then makes recommendations to the Foundation Board of Trustees. Foundation board trustees are then elected by the Cleveland Metropolitan Bar Association Board of Trustees.

vIcE prESIdEnT shall serve one year as vice president before automatically advancing to president of the Foundation. Term of office for vice president begins June 2014.

vIcE prESIdEnT of EndowmEnT shall serve a one-year term, beginning June 2014.

vIcE prESIdEnT of SpEcIal EvEnTS shall serve a one-year term, beginning June 2014.

TrUSTEE the term of office of elected trustees is two fiscal years. Elected trustees may serve three consecutive terms.

commUnITy TrUSTEE may be individuals who are not practicing attorneys. The term of office of community trustees is two fiscal years. Elected community trustees may serve three consecutive terms.

The primary considerations in reviewing nominees are demonstrated fundraising ability and service to the Association and Foundation, especially the community outreach programs of the Association and/or service to other non-profit organizations. A brief questionnaire will be e-mailed to each nominee or applicant.

all nominations and applications are due by 5:00 p.m. on friday, march 14, 2014.

inquiries, nominations or applications should be sent to:

Cleveland Metropolitan Bar Foundation Governance and Nominating Committee David R. Watson, Executive Director 1301 E. Ninth St., Second Level, Cleveland, OH 44114-1253 e-mail to [email protected]


Each month, these pages will be dedicated to highlighting just some of the activities and programs of your cleveland metro bar.

MEMbERShiP PRoMoTioN coNTiNuESnow is the perfect time to invite your friends or colleagues to join. They will save 50% off membership and receive all the benefits through June. Any members who sign up for membership in February will be included a raffle for two tickets to the upcoming Rock the Foundation event at the house of blues.

Current members earn recruitment bonus: Ask those you recruit to list you as the referral on their application and earn a $25 credit on your account for each new member* you recruit.*Some exclusions apply. contact the cMbA membership department with questions.

facebook.com/clemetrobar

@clemetrobar

cMbA NighT ouT AT PlAYhouSESquAREWe are excited to share that your cMbA has reserved a block of tickets to the blockbuster broadway hit Jersey boys on May 8 at 8 p.m. at the State Theater. This particular performance includes a chat with the cast following the show. Available to members, the reserved seats are in the mezzanine and balcony of the State Theater and available in three price points ($34.50, $43.50 and $70.50). Tickets are available on a first come, first served basis. the deadline to reserve tickets through the CmbA is thursday, march 27. Payment is due upon reservation. visit our site for more details.

clE ThANk YouThe cMbA gratefully acknowledges the members who have served as Seminar/institute chairs from August through December. Thank you for your commitment to the cMbA.

2013–2014 Seminar chairs (chronological by event): Katrina Kenyon, katrina D. kenyon, llc; hon. deanna o’donnell, Parma Municipal court; shannon f. Jerse, Sisters of charity health System; michael J. Jordan, Jordan Resolutions llc; laura C. mcbride, ulmer & berne llP; david w. sloan, David Sloan ADR Services; michael J. thacker, keybank National Association; Judith C. saltzman, hickman & lowder co., lPA; bobby A. rutter, Rutter and Russin, llc; michael e. brittain, calfee, halter & griswold llP; sarah mcfarlane Polly, case Western Reserve university School of law; deborah d. Zielinski, chicago Title insurance company; michael A. Poklar, The law office of Michael A. Poklar ; ian n. friedman, Friedman & Frey, l.l.c.; robert C. folland, barnes & Thornburg llP; hon. michael P. donnelly, cuyahoga county court of common Pleas; hon. Joan C. synenberg, cuyahoga county court of common Pleas; larry w. Zukerman and Paul b. daiker, Zukerman, Daiker & lear co., l.P.A.; scott f. frodyma, Jones Day; Carol d. strassman, Ross, brittain & Schonberg co., l.P.A.; bryan P. o’malley, city of North olmsted; thomas m. horwitz, Thomas M. horwitz co. lPA; dean boland, boland legal, llc; bob terbrack, Mcglinchey Stafford; scott h. winograd, Attorney at law; and bruce m. hennes, hennes Paynter communications


oN ThE RADAR ScREEN march 11 Diversity & inclusion conference at Aloft cleveland Downtown march 22 Rock the Foundation 9 at house of blues april 7 Annual bench-bar Memorial Program april 11–12 Medical/legal Summit april 23–24 14th Annual Northern ohio Employment & labor law conference may 2 cleveland Mock Trial may 22 greet the Judges & gcs members-only reception may 20–21 William J. o’Neill bankruptcy institute June 9 golf outing at Shaker heights country club June 13 Annual Meeting at the Marriott at key center

2014

Joseph w. bauer Bauer Advising LLC

kristin m. brown

Jacob andrew bruner

robert Edgar bulford, Jr. United States Attorney’s Office

Edward francis caja

craig Edward cullen

laura divincenzo

Ikechukwu nnamdi Ekeke

Emily a. Everden

Joshua a. friedman Renner Otto Boisselle & Sklar LLP

benjamin michael gavel

amy E. gilbert

mary Jo Hanson Mary Jo Hanson, LLC

Jeffrey J. Higerd Unique Paving Materials

Jeffrey david Johnson

Sarah r. kendig Dubyak, Connick, Sammon, Thompson & Bloom

david a. landman Benesch, Friedlander, Coplan & Aronoff LLP

Elisabeth catherine leonard

benjamin m. maraan, II Law Office of Benjamin M. Maraan II

Emilly katherine mikes

Henry vincent morchak

andrew patrick moses Brouse McDowell

matthew m. nee Nee/Bittinger, LLC

Jason dorval norwood

donald-anthony c. phillips Phillips & Rzepka Attorneys At Law

Thomas b. robinson

assunta rossi

Scott david ruebensaal

gregory c. Sasse United States Attorney’s Office

Julianne danae Shenigo Robert J. Fedor, Esq., LLC

matthew Shupe Paulette F. Balin & Associates, LLC

michael d. Slodov Sessions,Fishman,Nathan & Israel, L.L.C

neil nikhil vakharia Jones Day

James Edward von ver Heydt Ulmer & Berne LLP

bobbi m. wilson

angela ann-Hwey wu Law Office of Angela A. Wu, Esq.

WelcomeNew Members

New Members

Mock TRiAl SEASoN iS uNDERWAYThe 31st Annual ohio Mock Trial District competition was held on January 31 at the Justice center. The ohio Mock Trial cuyahoga Regional competition will be held Feb. 21. if you are available to volunteer, please contact Jessica Paine or see our site for more details.


bY RichARD c.o. REZiE

W hen multiple insurers cover the same event or multiple insured parties are involved in a dispute,

it becomes necessary to determine priority of coverage, i.e., the order in which insurance is, or may be, obligated to pay. On the plaintiffs’ side, this preliminary determination is key to engaging in settlement negotiations or collecting a judgment. For defendants, determining the priority of coverage is imperative to both obtaining a defense and assessing personal exposure. From the standpoint of the insurers involved, no insurer wishes to pay more than it owes or, indeed, has contracted to provide.

Generally, the priority of coverage is governed by policy language and court decisions interpreting that language. See,

e.g., Ohio Revised Code 3937.18 (Ohio’s uninsured/underinsured motorist statute). Accordingly, insurers craft language to suit the intended coverage. Determining priority of coverage requires careful review and comparison of the specific language in the various policies covering the loss. Although policy language varies, there are certain rules of general application which can assist in the priority of coverage determination. The steps in applying these general rules to determine priority of coverage follow.

step 1: determine whether coverage is available under multiple policies.Generally, this initial determination is governed by the type of loss, the type of coverage afforded under the various policies in issue, and the exclusions contained in those policies. Note that if coverage is not available under multiple policies, then there is no issue

of priority of coverage. That analysis does not involve the priority of coverage, but rather, determining whether coverage is available under multiple policies. That determination can be complex and is beyond the scope of this article but focusing on the grant of coverage is often an important first step.

Specifically, some insurers limit the initial grant of coverage (i.e., the definition of “Who Is An Insured”) to persons who are “not insured” for losses because no “coverage under another” insurance policy exists. Ohio appellate courts have found such provisions valid because no coverage is afforded in the first instance where other insurance covers the loss. See, e.g., W. Am. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 1st Dist No. C-100012, 2010-Ohio-6311, ¶18; Johns v. Hopkins, 8th Dist. No. 992182013-Ohio-2099. Thus, a good starting point in determining priority of coverage is looking to the definition of “Who Is An Insured” to determine if it has such a limitation.

Although such limitations have generally been found valid by Ohio’s Courts of Appeals, limitations on the initial grant of coverage have not yet been directly analyzed by the Supreme Court of Ohio. One remaining issue is whether the Supreme Court of Ohio would find that limiting the initial grant of coverage to those without other insurance coverage is analogous to an “escape clause.” In State Farm Mut. Auto. Ins. Co. v. Home Indem. Ins. Co., 23 Ohio St. 2d 45, 46 (1970), the Supreme Court addressed an “escape clause” that provided coverage “but only if no other valid and collectable ... insurance, either primary or excess ... is available to such person.” The Supreme Court reasoned that, because excess insurance is not “collectable” until primary insurance is exhausted, there is no “other valid and collectable insurance” at the primary level and the “escape clause” does not apply. The policy with the “escape clause” was thus found primary to excess insurance. It is unclear whether the Supreme Court would apply similar analysis if faced with a conflict between: an excess insurance provision; and a clause limiting the definition of “Who Is An Insured” based on the existence of “coverage under another” insurance policy.

BAR JOURNALFEATuRE

determining Priority of Insurance Coverage — a step-by-step guide


In the meantime, insurers with such language will often take the position that their coverage does not apply if other insurance is available to cover the loss.

step 2: determine the types of “other Insurance” clauses at issue. After determining that more than one policy provides coverage for the loss and reviewing the definition of “Who Is An Insured,” the next step is to review the “Other Insurance” clauses at issue. There are six basic types of “Other Insurance” clauses. An example of each type follows with the generic language helpful in identifying that type of clause emphasized:1. Pro Rata: If there is any other applicable

liability insurance or bond, we will pay only our share of the damages. Our share is the proportion that our limit of liability bears to the total of all applicable limits.

2. Equal Shares: If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.

3. Escape: Coverage is provided for the insured “but only if no other valid and collectable ... insurance, either primary or excess ... is available to such person.”

4. Excess: Any insurance we provide will be excess over any other collectable insurance, self-insurance, or bond. Any insurance we provide for use of a covered auto by any person other than you will be excess over any other collectable insurance, self-insurance, or bond.

5. Excess Over Excess: Any insurance we provide shall be excess over any other collectable insurance. Any insurance we provide for use of your covered auto by any person other than you or any family member will be excess over any other collectable insurance, self-insurance or bond stated to be primary, contributing, excess or contingent.

6. Super Excess: Under a “super excess clause,” coverage is available only “after exhaustion of all ... insurance ... whether primary, excess or contingent ....” Generally, true “super excess” clauses are found only in high level excess policies which also specify the underlying limits which must be exhausted.Because there is no standard “Other

Insurance” language, different language which does not fit within any of the above categories may be encountered. In that event, the language’s effect may vary from any of the categories identified.

step 3: determine priority of coverage.Once the types of “Other Insurance” clauses involved have been identified, the next step is to determine whether they conflict. If there is no conflict, then they should be applied as written. For instance, if one insurer states that it is pro rata with other “applicable” insurance and the second policy states that it is “excess” over other “collectable insurance,” then the pro rata policy is primary because the excess policy is not “applicable” until primary coverage is exhausted. Trinity Universal Insurance Co. v. General Accident Fire & Life Insurance Co., Ltd., 138 Ohio St. 488, 489 (1941).

If the “Other Insurance” provisions are in conflict, i.e., two policies state that they are excess, then the following general guidelines apply: (1) If two policies both provide coverage on the same basis, they are pro rata, i.e., excess vs. excess = pro rata. Buckeye Union Ins. Co. v. State Auto. Mut. Ins. Co., 49 Ohio St. 2d 213, syllabus (1977); (2) Where one policy states that it is “excess” and the other policy contains an “escape clause,” the policy with the “escape clause” is primary. State Farm Mut. Auto. Ins. Co. v. Home Indem. Ins. Co., 23 Ohio St. 2d 45, 47-48 (1970); and (3) “Excess over excess” language is read to be “excess” insurance


that prorates with other excess insurance. Progressive Direct Ins. Co. v. Motorists Mut. Ins. Co., 191 Ohio App. 3d 686 (1st Dist. 2011). Different or non-standard language requires additional analysis and may vary results.

The priority of coverage analysis should be performed as early as possible to both ensure prompt notice to the appropriate insurers and to facilitate resolution of the dispute. Using this set-by-step approach will often resolve priority of coverage and point to which insurers should be involved in the defense as well as settlement negotiations. It may also point to the insurer(s) responsible to pay any judgment. In these ways, determining priority of coverage early facilitates the resolution of disputes.

Rich Rezie is a partner active in Gallagher Sharp’s Insurance and Appellate Practice Groups. He focuses on complex civil litigation, class actions, and defense of

insurers, including toxic tort and environmental coverage claims, bad faith, unfair claims practices, and breach of contract. He has been a CMBA member since 2012. He can be reached at (216) 241-5310 or [email protected].


get your name at the top of the list!more and more, your local bar association’s lrs is becoming the go-to source for referrals.

recent enhancements offer you a unique opportunity to market yourself to the public through its 24/7 online referral directory.

Through your lrS profile, potential clients can more easily review and select an attorney for their legal needs at any time. In place of a basic listing, each lrS member may purchase an

enhanced profile featuring priority placement and additional listing options.

CmbA lawyer referral service online referral directory

www.clemetrobar.org/referrals

Special limited-Time offers available!lrS member-participants: for a special offer on an referral directory enhanced profile through June 30, 2014, contact Jim smolinski at [email protected] or (216) 696-3525.

non-members: Considering lrs? for a special offer on a ‘test-drive’ membership through June 30, 2014, contact Jim smolinski at [email protected] or (216) 696-3525.

Name

Select

FirmFirm Here

Location

Location Here

Selected Area of Law

Area of Law Here

Languages

Languages Here

Your Name HereSelect

FirmYour Firm HereLocationYour Location HereSelected Area of LawYour Area of Law Here

LanguagesYour Languages Here

YourPhotoHere

Fee Information

EducationWork History Personal Information

Practice Information

Area/Panels of Law Covered List all of your practice areas here... e.g. FAM: Child Custody/Visit (Domestic),

FAM: Child Support, (Domestic), FAM: Child Support (Juvenile), FAM: Paternity,

FAM: Divorce/Dissolution, FAM: Post Divorce...

basic listing

Enhanced profilelisting includes detailed information about education, professional accomplishments, and

other practice areas; as well as a photo and featured placement on the referral lists!

LAWYER REFERRALS E RV I C E

C M B ALAWYER

REFERRALSERVICE

LAWYERREFERRALservice


robert K. Bissell

neil J. Byrne

thomas H. deChant

Margaret demer

robert e. fleck

philip n. Georgeadis

lois a. Gruhin

richard H. Hahn

Walter J. laska

Hon. patrick G. lazzaro

John d. liber

lloyd loux Jr.

James r. Manley

C. daniel nash

Sidney nudelman

Joseph t. ostrowski

rexford W. post

Mark W. ruf

nicholas d. Satullo

Walter a. Savage

lawrence e. Stewart

Seth C. taft

Clyde e. thomas

lawrence C. turnock

thomas C. vanik

dean p. Wyman

2014 Annual Greater Cleveland Bench-Bar Memorial Program

In Honor and Remembrance of the Lawyers and Judges of Cleveland and Cuyahoga County who passed away from January 1, 2013 – December 31, 2013

Monday, april 7 at noonin the atrium of the Howard M. Metzenbaum u.S. Courthouse

For more information, please contact Melanie Farrell of the Cleveland Metropolitan Bar Associationat (216) 696-3525 ext. 2001, or at [email protected].

The CMBA has made every effort to compile a complete list of the attorneys and judges in Cuyahoga County who have passed away over the past year. If you are aware of a name that has been omitted from this list, please contact Melanie Farrell.

A memorial program will be held for the following members of the bench and bar who passed away over the past year. Family, friends, colleagues and all lawyers in the Cleveland and Cuyahoga County area are invited to

share in this final tribute to honor these men and women.


we all get them — professional liability renewal applications. Every year we complete

them, send in the premium, receive back a new policy, and stick it in our drawer, safe in the knowledge that we are protected from our mistakes for another year.

But are we? As with many of life’s questions, the answer

is — it depends.Professional liability (PL) policies —

popularly referred to as malpractice or E&O policies — have some unique (i.e. tricky) provisions. Understand them and your level of protection increases; ignore them at your peril.

THESE arE claImS madE and rEporTEd polIcIESMost people are familiar with homeowner polices, auto policies, and perhaps commercial general liability (CGL) policies. These policies all share one trait — they are “occurrence” based. That is, the trigger of coverage is an occurrence or accident within the policy period. A claim or lawsuit may not follow for several years, and in some cases (think asbestos, toxic torts) the injured person may not even realize that he has been injured for many years. When the injured person discovers the injury, reports the injury, or files a lawsuit is irrelevant; the trigger is the event itself.

PL policies are different. They are not triggered by an accident or injury, but instead depend on two distinct events happening within the policy period — (1) a claim must be asserted against the policyholder, and (2) the policyholder must report that claim to the carrier. Both events must occur in the same

policy period; if they do not, coverage is not triggered. When the injury giving rise to the claim occurred is irrelevant, and, in fact, most often the event occurred before the policy period in which the claim is made.

Lawyers think in terms of lawsuits, and although a lawsuit is a claim, not all claims are lawsuits. So, an important way a lawyer can increase the chances of being protected by a PL policy is to think in terms of claims being made or threatened against the lawyer — not just lawsuits being filed.

wHaT IS a claIm?Since we need to be on the lookout for claims, we need to know what we are looking for. “Claim” is a technical term typically defined in a PL policy. Usually it means simply a demand for money or services, but all PL policies are not alike. Here are some typical definitions:

Claim means a demand that seeks damages.Claim means a request or a demand, including

the institution of a suit or arbitration proceedings against any insured, received by us and seeking the payment of damages by an insured.

Claim means receipt of a civil action, suit, proceeding, or demand naming the Insured seeking damages and/or Professional services arising out of a Wrongful act by the Insured or any entity for whom the Insured is legally liable.

Claim means a demand for money or services, or the filing of suit or institution of arbitration proceedings or alternative dispute resolution naming an Insured and alleging a negligent act, error, omission or Personal Injury resulting from the rendering of or failure to render Professional services.

Consider whether these are “claims:”• A notice from the local disciplinary board

that a client has registered a complaint;• A letter from a client’s new lawyer stating

that he is “looking into” your handling of the client’s legal matters;

• A client’s refusal to pay your bill, asserting that the work was unsatisfactory;

• A disgruntled client demanding that you return fees that have already been paid;

• A letter from a former client asking for the identity of your malpractice carrier;

• A telephone call from a client complaining about the outcome of a lawsuit or transaction;

• A client complains to the news media about your representation of the client;

• You miss a statutory deadline and inform the client;

• You miss a court-imposed deadline for a dispositive motion and inform the client.These may or may not be claims depending

on the language of the policy and the case law in your jurisdiction. But don’t take a chance. Think claim or potential claim — not just lawsuit. And don’t overlook the “supplementary” coverages in your policy. These are things like disciplinary defense coverage, subpoena coverage, and spousal coverage, just to mention a few. Read your policy from back to front, or even front to back. If you do this just one time, odds are you may save yourself some time, money, and aggravation someday.

THE claIm mUST bE rEporTEdOnce a claim is made or a potential claim arises, the clock is ticking on the second event needed to trigger coverage. You must report the claim within the same policy period as when the claim was made. PL policies may contain other more demanding conditions such as providing “immediate notice” of a claim or notice “as soon as practicable,” but these are nebulous standards that can often be argued around.

What cannot be so easily dismissed is the requirement that the claim be reported within the same policy period as it was made. If a lawyer does not recognize a “claim” when it is made, then it stands to reason that the claim will not be reported as needed to trigger coverage.

The safest course of action is to report any omission, act, or circumstance that might result in a claim. The old mantra applies of “Better to be safe than sorry.” But lawyers are reluctant to do this because• The claim is not meritorious — “It’s a bunch of

BS!”• The client is “crazy.”

Understanding your professional liability policywhat you need to KnowbY bob RuTTER & Al STEPhENS

BAR JOURNALFEATuRE


• “I was trying to work it out.”• Fear of an increased premium.

Lawyers are in the business of trying to resolve conflicts, and so their natural inclination is to try to resolve a conflict with a client. Perhaps this is advisable for minor conflicts, but we need to be aware of the time deadline (end of the policy period) to make a decision on whether a minor conflict is going to turn into a major one. Err on the side of caution and increase your chances of being able to utilize the benefits of your PL policy. Act on your own for too long and you may end up being on your own for the long run.

wHaT aboUT claImS madE nEar THE End of THE polIcy yEar?These happen. Consider this fact pattern in a situation where a PL policy is issued on a calendar year:• Client signed up on 5/3/2011.• Attorney commits negligent act on 8/15/12.• Client asserts a claim on 12/10/12.• Claim reported to carrier on 1/10/13.

The policy expired on 12/31/12, so the claim was made in one policy period and reported in the next. Is the lawyer out of luck? Fortunately, no. PL policies have extended reporting periods of 30–90 days after the date the policy ends. A claim reported in this limited timeframe is deemed to have been made and reported in the earlier policy period.

But notice that this window is fairly small. If the lawyer in the fact pattern above has a PL

policy with only a 30-day extended reporting period and he dawdles and does not report the claim (because it’s not a lawsuit) until 2/25/13 — he is out of luck.

So the next way to increase your chances of being protected — get a policy with a longer extended reporting endorsement and then, when your policy comes up for renewal, think about whether you need to report any claims before the end of the extended reporting endorsement.

wHaT If I rEporT an EvEnT bEforE IT IS a claIm?There is generally no harm in reporting an event that is not technically a claim. PL policies typically contain a provision stating that once an event is reported, if it later results in a claim being made, then the claim will be deemed to have been made and reported in the policy year in which the event was first reported.

Do this especially if you are switching insurance companies.

The general rule still applies — report, and report early.

HandlIng rEnEwal applIcaTIonSPL policies require a written renewal application every year. The insured must report any facts that may give rise to a claim. A typical question is:

Do you or any member or employee of your firm have knowledge of any incident, act, error, or omission that is or could be the basis of a claim under this proposed professional liability policy?

Here’s the rub. If you answer ‘Yes,’ then the carrier may exclude that incident on the renewal policy. If you answer ‘No,’ then the carrier may deny any claim later made under the policy based on a misrepresentation in the application, or even rescind the entire policy.

What to do?The answer is simple. Report to the insurance

company any potential claim ideally before mentioning it on a renewal or new application. By doing so, you will be deemed to have reported the claim — even if it’s not really a claim, but only an incident that “could be the basis of a claim” — in the earlier policy period; the earlier policy will therefore be triggered by a later actual claim even if the insurer is no longer your insurance company. This is really important, because the present insurer will exclude the incident from coverage regardless of whether you gave the present insurer notice or not — because all known incidents are excluded from coverage in any event. However, reporting the incident on a renewal application will at least avoid a denial of coverage due to a misrepresentation, and more importantly, avoid a rescission of the present policy. This may be clear as mud, so just take our word for it. Always give notice and always report on a renewal or new application!

conclUSIonFollow these rules and you will increase your chances of being protected by the PL policy that you bought and paid for:• Think claim — not lawsuit.• Report any event that might constitute a claim.• Remember that claims must be reported in

the same policy year as they were made.• Get a policy with a longer extended

reporting period.• Report any claim before putting it on a

renewal application.

Bob Rutter is a member of Rutter & Russin, LLC. He represents policyholders in disputes with insurance companies, including claims for fire, property, life and

disability loss, and issues arising from a breach of the duty to defend. He has been a member of the CMBA since 2012. He can be reached at (216) 642-1425 or [email protected].

Al Stephens, now a Senior Account Executive at Professional Liability Services in Cleveland, Ohio, is a retired trial lawyer. He has been a CMBA member since

1977. He can be reached at (216) 447-5001 or [email protected].


you are an accomplished trial lawyer. You are driving along on a two-lane highway. The speed limit is 50 MPH. You are alert — no cell

phone, no radio, nothing to distract your focus. You slow to a near-crawl in order to stop for the red light ahead. Suddenly you glance in your rear view mirror and catch a glimpse of a larger vehicle bearing down on you from behind. You hear no squealing brakes; instinctively, you brace yourself for the impact. You absorb the blow in your mid-back. Your neck snaps violently forward and then violently backward.

A split second later, your adrenalin kicks in. You get out. Glancing at the massive damage to the rear end of your car, you march over to the other car which is gushing radiator fluid onto the pavement. The shaken driver is still holding her cell phone in her hand. “What the h___ were you doing? (or something more

colorful),” you shout. At that moment you could kill her.

***Two days later it is time to deal with your

sorry-looking vehicle. You paid $35,000 for your car only three months ago. The estimate of repairs is $15,000. You know that come trade-in time, even if the repairs are A-1, you will never get what the car would have been worth had it not been in a major collision. So you ask your bright young law clerk, Aristotle, to give you a quick but thorough memo on the law. Here it is:

To: The BossFrom: AristotleRe: Recovery for residual diminution of value in OhioDate: December 25, 2013

When a person’s vehicle is involved in an accident, he/she has decisions to make regarding recovery for damage to the vehicle. The primary

decision is whether to have the vehicle repaired or have it “totaled.” The owner can either collect the difference in value immediately before (pre-collision value) and immediately after (post-collision value1) the accident OR can elect to make repairs to the vehicle at his/her insurance carrier’s expense. If the owner elects to have repairs made however, he/she should think ahead to making a claim for “residual diminution in value” before making a final decision.

discussionFalter v. Toledo, 169 Ohio St. 238 (1959) states the general rule which looks to the fair market value (FMV)2 of the vehicle both immediately before and immediately after the collision. That numerical difference is referred to as the gross diminution in value (GDV). Falter holds that an owner has a choice of receiving the GDV or the cost of repairs — but payment for the cost of repairs cannot exceed the GDV. This principle is the bread and butter of every chattel-damages claim. Thus it behooves the owner to get a reliable estimate of the post-collision value of the vehicle prior to making an educated decision about whether or not to authorize repairs.

But there is another reason for the owner to obtain a reliable estimate of the post-collision value of his/her vehicle and that relates to the owner’s putative claim for residual diminution in value (RDV). Taking your example, let’s say that you get your car repaired for the estimate of $15,000. And let’s say that you have determined that the post-collision value of the vehicle (before repairs) is $5,000.3 How do these numbers affect the RDV calculation? And how do you go about collecting for RDV?

The leading case in Ohio is Rakich v. Anthem Blue Cross & Blue Shield, 172 Ohio App.3d 523, 2007-Ohio-3739 (10th District, 2007). (The Rakich opinion is well-written and was authored by then Judge French who currently sits on the Ohio Supreme Court; it has been followed by other district courts of appeal without exception.)4 Rakich arose when the plaintiffs had already recovered for the cost of repairs to their vehicle, but then sought to present evidence of the future diminution in resale value by reason of the collision. The court held that simply recovering for the cost of repairs is inadequate “when it can be shown that the repairs were insufficient to restore the vehicle to its pre-collision value:”

Under the general principle that an injured party should have sufficient compensation for his/her injuries to make him whole, we find that when a plaintiff proves that the value of

suppose your vehicle is “Rear-ended,” Can you Recover For “Residual diminution in value”?bY E. RichARD STEgE & ERick J. NEviN

BAR JOURNALFEATuRE


his automobile after repair is less than the pre-injury value of the automobile, the plaintiff may recover the residual diminution in value (RDV) 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 automobile immediately before and immediately after the injury.5

How does this work in practice?An unsuspecting owner may fall into a trap if he/she is not careful. That’s because of the “cap” placed on recovery of RDV by the court in Rakich. But Boss, your situation is ideal: You have

a solid pre-collision value of $35,000 because you only recently bought the car;6 and you have a solid post-collision value of $5,000 based on the research you have told me about.7 Now all you need to know is an estimate of what your vehicle will be worth on the open market after it is repaired.8 Let’s say that value is $12,000. Applying the Rakich analysis, you are entitled to recover the cost of repairs of $15,000 plus the RDV of $23,000 ($35,000 less $12,000) for a provisional total of $37,000. But, since the maximum that you can recover under the Rakich cap is $30,000 ($35,000 less $5,000), you will only be able to recover $30,000. (Boss, my heart bleeds for you.)

Question: Will your own carrier pay for RDV or must you collect the cost of repairs from your carrier and then look to the tortfeasor’s carrier for RDV? Answer: I checked my own Travelers policy and I see that they recently (probably in response to Rakich) amended the property damage provision to expressly exclude payment for RDV. I understand that other carriers vary in their willingness to cover for RDV. On the other hand, the tortfeasor’s carrier is obligated to “make you whole,” so you should be able to collect RDV from the tortfeasor’s carrier. By the way, I trust that the idiot who hit you while texting on her cell phone has coverage — am I correct???

Finally, I cannot resist pointing out that the RDV law benefits the rich who can afford to buy expensive vehicles. I remind you that it was Anatole France (1894) who wrote, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and steal bread.”

1 Sometimes referred to as “salvage value.”2 I.e., a willing buyer and a willing seller in an open market. 3 There are three common methods used to determine post-collision value: A reputable “book value,” bids from auto wreckers or junk yards, and private appraisers. See generally, Gaier’s Garage v. Exel Logistics, 1998 Ohio App. LEXIS, 4976, at *4 (3rd Dist.); 8 Am. Jur. 2d Automobiles § 1216, Establishing Market Value (Nov. 2013). Cf., 8 Ohio Jur. 3d Automobiles & Other Vehicles § 693, Damages – Change in Market Value (Nov. 2013). Insurance carriers often use a fourth, namely what the damaged vehicle would sell for at auction based upon a service like “CoPart.”

4 See, e.g., Brantley v. Southwest Ohio Regional Transit Authority, 2010-Ohio-6290 (1st Dist. 2010); Avis Rent-A-Car System, L.L.C. v. Atkinson, 2012-Ohio-4921 (5th Dist. 2012); Safe Auto Ins. Co. v. Hasford, 2008-Ohio-4897 (10th Dist. 2008).

5 Rakich, 172 Ohio App.3d at 532.6 Most people are not so fortunate. They will need to go to NADA, JD Power or the blue book for a value.

7 You told me that you contacted “Copart” online and obtained an offer for your damaged vehicle.

8 This requires some “inside” information. I suggest you call your business client who buys and sells used cars online for a living. Alternatively, I suggest you talk to the dealer who sold you your vehicle for an estimate.

E. Richard (Rick) Stege is a seasoned trial lawyer with Stege & Michelson in Solon, Ohio. Rick has two successful United States Supreme Court arguments to his

credit. Rick has tried well over one hundred jury and bench lawsuits, including personal injury, medical malpractice and commercial cases. He has been a CMBA member since 1979. He can be reached at [email protected].

Erick J. Nevin is a law clerk at Stege & Michelson. He is currently a second-year law student at Cleveland-Marshall College of Law, an associate on the Journal of Law &

Health, and a member of the Moot Court program. He has been a CMBA member since 2012. He can be contacted at [email protected].

the Cleveland metropolitan bar Association requests nominations for the annual Professionalism Award. the award seeks to honor a lawyer or judge who has significantly contributed to the enhancement of professionalism in the greater Cleveland legal community by exemplifying the goals of the ohio supreme Court’s “A lawyer’s Creed” and “A lawyer’s Aspirational ideals” and by furthering the ideals expressed in the mission of the Cleveland metropolitan bar Association. nominations are encouraged from bar Association members and other interested persons. the nominees need not be members of the Cleveland metropolitan bar Association.

nominations for the 2012–13 Award, and the basis therefore, should be submitted in writing to: the ethics and Professionalism Committee, Cleveland metropolitan bar Association, 1301 east ninth st., second level, Cleveland, oh 44114-1253, Attn: tom horwitz, chair. Please include your address and telephone number. nominations must be submitted no later than friday, April 25 2014.

nominations will be reviewed and evaluated by a selection committee of lawyers, judges and law professors. the award will be formally presented at the Association’s annual meeting in June 2014.


CmbA eventsfebruary/march

2014

monday tuesday wednesday thursday friday

3CMBF Fellows Committee Mtg. – 8:15 a.m.

4CMBF Executive Committee Mtg. – 8:15 a.m.Grievance Committee Mtg.

5Diversity and Inclusion Committee Mtg. – 8:30 a.m.Women In Law Section Mtg.

6International Law Section Mtg.

7Membership Committee Mtg.

10PLI: Nuts and Bolts of Tax Penalties 2014 – 8:30 a.m.CMBF Board of Trustees Mtg.

11Diversity & Inclusion Conference (Aloft Cleveland Hotels)ADR Section Mtg.Insurance Law Section Mtg.

12CMBA Executive Committee Mtg.UPOL Committee Mtg.Workers’ Compensation Section Mtg. & CLE - State Office Building

13VLA Committee Mtg.Bench-Bar Committee Mtg. – 12:30 p.m. IP Section CLE & Happy Hour – 4 p.m.

14PLI: Securities Offerings 2014: A Public Offering: How it is Done – 8:30 a.m.

17

18PLI: Fundamental Concepts in Drafting Contracts – 8:30 a.m.Estate Planning Section Mtg. & CLEGrievance Committee Mtg.

19PLI: How to Read Financial Statements 2014 – 8:30 a.m.CMBA Board of Trustees Mtg.Health Care Law Section Mtg. & CLE

20

21Pro Se Divorce Clinic – 10 a.m.

24

25Real Estate Law Section Lunch & Presentation

26Labor & Employment Law Section Mtg. & CLE3Rs Committee Mtg.

27Court Rules Committee Mtg.

28

31

*All events held in CmbA offices at noon unless otherwise noted.Saturday, 3/22 rock the foundation 9 – 7:00 p.m. (house of blues)

marcH (current as of publication date)

monday tuesday wednesday thursday friday

10CMBF Board of Trustees Mtg.

11ADR Section Mtg. & CLEInsurance Law Section Mtg.JFA Committee Mtg.

12PLI: Corporate Governance – A Master Class 2014 – 8:30 a.m.CMBA Executive Committee Mtg.UPOL Committee Mtg.Workers’ Compensation Mtg. & CLE (State Office Building)

13Municipal Law Update and Sunshine Laws TrainingVLA Committee Mtg.Love, Law & Chocolate – 5 p.m. Sleepy Hollow Golf Course

14

17

18Estate Planning Section Mtg. & CLEGrievance Committee Mtg.

19CMBA Board of Trustees Mtg.Health Care Law Section Mtg. & CLE

20Corporation & Business Law Section Lunch & CLEEthics Committee Mtg.

213Rs Lesson Five (Cleveland Public Schools) – all dayOhio Mock Trial Regional Competition (Cuyahoga County Court House) – 11:30 a.m.MCP Interviews and Testing 2 p.m.

24PLI: Consolidated Tax Return Regulations 2014 – 8:30 a.m.

25PLI: Consolidated Tax Return Regulations 2014 – 8:30 a.m.Real Estate Law Section Lunch & Presentation

263Rs Committee Mtg.Labor & Employment Law Section Mtg. & CLE

27Court Rules Committee Mtg.

28Pro Se Divorce Clinic – 10 a.m.Pro Se “Plus” Divorce Clinic – 1 p.m.

*All events held in CmbA offices at noon unless otherwise noted.

fEbrUary (current as of publication date)


listingsclassifieds

offICe sPaCe/sHarIng

beachwood – In beautiful, fully renovated suite on Chagrin. Receptionist, copier, fax machine, conference room, and other amenities provided. Suite has generated referrals in the past. Call Dave Pomerantz (216) 587-1221.

beachwood – Five-star space. Needs joyful personalities. Some work sharing. Federal experience, a plus. Rent: too little to print. Garage available. (216) 244-3423

beachwood, LaPlace Mall, corner of Cedar and Richmond near Beachwood Place and Legacy Village. Upper level, sunny office space available with the usual amenities. Separate area for assistant. Free underground parking. Call (216) 292-4666 or email [email protected].

bedford – Law Offices available with conference room/library, kitchen, receptionist, and mentoring from CM grad with 40+ years legal experinece. (440) 439-5959

Chagrin blvd. at Warrensville Center rd. Sunny, furnished office. Shared services available including receptionist, Lexis, Internet, etc. Excellent environment. Call (216) 991-6200 or e-mail [email protected].

Chagrin falls (downtown) law firm has office space and work available for attorney interested in of-counsel relationship. Space includes receptionist, conference room, new computer equipment, all furnishing. Call Alex at (440) 571-7775.

Cleveland – Leader Building corner office available in six office lawyers suite. Includes conference room, law library, kitchen and usual law office equipment. Call Carl at (216) 241-8040.

downtown Cleveland – rockefeller bldg. @ W. 6th & superior. Exceptional office space, exceptional value. All window space, no interior offices. Contact Ben Cappadora or Therese Manos at (216) 696-3929.

downtown Cleveland, small office building for sale. 4800 sq. ft. office building ideal for law firm or owner occupant. Space is easily divided for leasing. Downstairs offices include full kitchen, bath with shower. Two restrooms each floor. New HVAC. Easy access to all major freeways and Justice Center. Build equity

instead of paying rent. $194,000. Visit www.StClairOffice.com or call (216) 235-2597.

elegantly furnished office in a beautifully appointed and striking suite; located in prime historic warehouse district landmark. Call Gretchen at (216) 241-8172.

fairview Park office space – Beautifully remodeled. Many amenities included. As low as $475.00 per month. Call (440) 895-1234 to schedule a visit.

Large Lake view Corner office on upper floor of Terminal Tower available for sublease. Office is wood paneled with marble executive washroom. Adjacent secretary/assistant office is also available. Shared conference rooms, fax, and copiers are available for use. Call (216) 621-3500 for more information.

Leader building – Office space available in elegant suite with several other attorneys, receptionist, optional secretarial space, library/conference room, fax, copier, telephone system, kitchen. (216) 861-1070 for information.

Lyndhurst – Mayfield at richmond – Office space, receptionist, conference room, optional secretarial area, fax, photocopier – $1,000.00 per month. Call Tim Haffey at (216) 291-3600.

Mayfield village – Wilson Mills at I-271. Great location. Furnished office with 2 other attorneys. Usual amenities. Great opportunity for attorney seeking own practice. Email [email protected].

office space available – Professional office space for one or two persons available for immediate occupancy. Exceptional suite of offices beautifully decorated, offering a great view of the lake and downtown Cleveland with convenient access to indoor and outdoor parking, restaurants and the Galleria. Amenities include reception area, conference room, kitchen, utilities, video-conferencing, Polycom, Wi-Fi, internet, fax, in-suite cleaning service and 24-hour access. Secretarial space available. For more information, please contact: Levin & Associates Co., L.P.A., 1100 Tower at Erieview, 1301 East 9th Street, Cleveland, Ohio 44114, (216) 928-0600, [email protected]

office space, standard building – Large or small office, with or without secretarial space, in nicely decorated suite with several other attorneys. Includes all usual amenities. Call David at (216) 621-6201.

office sublease – Independence – 2500+ square feet, 6 window offices, private entrance, work room, receptionist and sitting area available. Contact Anne ([email protected]) for more information.

Parma/north royalton – Office spaces in modern suite available now. Contact Paul T. Kirner at (440) 884-4300.

rocky river – Office in nicely decorated suite. Cost effective for attorney practicing in western suburbs. Conference room/library, copier, fax, reception area. Patrick Talty (440) 356-9400.

single office in busy, friendly small firm in Cleveland’s Leader building. Phone, internet, copy-fax-scan-print, kitchen. $750.00. Other amenities available. Perfect for rising young lawyer, or older lawyer winding down. Reply by e-mail only. [email protected]. www.galluplaw.com.

standard building – Office space available in suite with several other attorneys. Telephone, receptionist, fax, copier, secretarial available. Referrals possible. Contact Ty Fazio at (216) 589-5622.

superior building – Offices available in professionally decorated suite. Congenial environment with possible referrals. Will also consider barter arrangement for younger attorney seeking to establish own practice. Jack Abel or Lori Zocolo at (216) 621-6138.

strongsville – office space with an established firm, receptionist/secretarial, fax, photocopier, access to conference room, telephone system, high speed Internet. Referrals available. Call David Kolick at (440) 572-1660.

terminal tower – Law offices available in prime location with reception area, secre-tarial space, conference room, copier, fax and kitchen. Reasonable rent. Call (216) 241-2022.

unique Cleveland Warehouse district executive and associate offices with available full services, amenities, and referrals. Convenient to court houses, restaurants, and parking. Call Pam MacAdams (216) 621-4244.

Warehouse district: Multiple spacious law offices available; sublease $295-$695/mo. Classy conference room. Next-door parking. Walk to restaurants. Chandra Law Firm: (216) 578-1700.


listingsclassifieds

for saLe

for saLe (or potential donation to a worthy non-profit organization): Law office’s Lanier LD 135 black-and-white printer, copier, scanner, and fax machine. 35 ppm. 2 paper trays and collating finisher with stapler. $1,950 OBO. Warehouse District — you arrange pick up. Approx. 700,000 copies, still reliable. Call (216) 578-1700.

sligh Mahogany Leather-top desk and Matching 4-drawer Credenza – Tower East Office in Shaker Heights. Madelon Sprague at (216) 310-2512 or [email protected]

servICes

experienced appellate attorney – Former Ohio Supreme Court and Eighth District judicial attorney; Adjunct professor of appellate advocacy; 25+ Federal and State Court appeals. [email protected]; 440-782-7822.

experienced attorney willing to co-counsel cases in Cleveland and all municipal courts – Contact Joe at (216) 363-6050.

experienced expert Witness for probate, estate planning or related matters. ACTEC Fellow since 1994. Harvard Law. EPC “Planner of Year 2006.” Herb Braverman at [email protected].

experienced Process server – Super competitive prices – flat rate $50/address within Cuyahoga County. First attempt within 24 hours. Pente Legal Solutions (216) 548-7608 or [email protected]

Jd / banking / Cre – BGL Real Estate Partners – Highly-experienced dealmakers in Healthcare, Hospitality, Industrial, Multifamily Brian Lenahan 216.960.6656 [email protected]

Premise security expert Witness and Consultant – 35 years experience – 6 years providing expert services to attorneys – Thomas J. Lekan, (440) 223-5730 or [email protected] – www.lekanconsulting.com

tax Consultations – Cleveland attorney with more than 35 years experience dealing with federal, state and local tax audit and collection matters; available for consultations, preparation of administrative and judicial hearing documents and pleadings, attendance at hearings, resolution of liability and refund claims, delaying and preventing levies upon assets, obtaining release of tax levies and liens, advice and representation re tax resolution alternatives and techniques. Contact: Irving Bell, 1392 SOM Center Rd, Cleveland, Ohio 44124; (440) 449-4560; e-mail:[email protected]; Website: www.irsadvice.com

advertise Herefirst 25 words

free for members

$1 per additional word($2 per word for non-members)

Contact Jackie baraona at [email protected].



Earn clE crEdIT for pro bono lEgal SErvIcES Beginning January 1, 2014, one hour of continuing legal education credit may be awarded for every six hours of pro bono legal service performed, with a maximum of six credit hours for service performed during a biennial compliance period. See Gov. Bar R. X Section 5 (H),

“Pro bono” is defined as legal service provided to either a person of limited means or a charitable organization in which the legal service is assigned, verified, and reported to the CLE Commission by any of the following:• An organization receiving funding for pro

bono programs or services from the Legal Services Corporation or the Ohio Legal Assistance Foundation;

• A metropolitan or county bar association;• The Ohio State Bar Association;• The Ohio Legal Assistance Foundation;• Any other organization recognized by the

CLE Commission as providing pro bono programs or services in Ohio.Only pro bono legal service performed on

or after January 1, 2014, may be eligible for continuing legal education credit. There is a form for attorneys to use — Application for CLE Credit for Pro Bono Legal Services, which must be completed by the attorney and sent to the pro bono provider for verification no later than December 31 of the calendar year in which the legal services are provided.

Attorney volunteers providing pro bono service in the following CMBA programs are encouraged to record their hours of service for verification: Cleveland Homeless Legal Assistance Program, Volunteer Lawyers for the Arts, Reach Out Pro Bono for Nonprofits and the Pro Se Divorce Clinics. The CMBA will provide ongoing information and assistance to volunteers related to this new provision.

Questions about clE credit for pro bono legal service should be directed to mary groth at [email protected] or (216) 696-3525.

clE rEgUlaTIon cHangESEffective January 1, the Supreme Court of Ohio announced significant changes to the CLE regulations. The number of required hours will remain at 24 per biennium, including 2.5 hours of “attorney professional conduct” instruction.

Changes include:• Attorneys may now earn 12 hours of self-

study credit hours per biennium, up from 6 hours.

• Attorneys will be able to “unbundle” their 2.5 hour professional conduct requirement. This means that attorneys will no longer be required to earn one hour of ethics, one hour of professionalism, and one-half hour of substance abuse credit each biennium, but rather will be permitted to choose from a variety of subjects related to professional conduct to meet the 2.5 hour professional conduct requirement. Hours earned in 2013 that were accredited as “ethics,” “professionalism,” or “substance abuse” instruction will automatically be applied to the 2.5 hour “attorney professional conduct” requirement due December 31, 2014.

• Attorneys may receive credit for CLE presentations that occur during a meal.

• Attorneys may earn up to 6 hours of CLE credit each biennial period for certain types of pro bono service performed on or after January 1, 2014. See above article for more information.

• Attorneys will no longer be required to file a Final Reporting Transcript.

for complete information, please visit www.supremecourt.ohio.gov/attysvcs/clE/rulechanges2014/default.asp for comparison charts and faQs.

for more information on cmba clE, please visit www.clemetrobar.org/clE or contact Samantha pringle, clE director, at [email protected].

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Tucker Ellis llP is pleased to announce three new associate attorneys.

Chelsea Croy focuses her practice on product liability defense and

business litigation. Paul Janowicz represents clients in complex commercial

litigation and white collar criminal matters. Kelli steber focuses her

practice on the defense of medical device and pharmaceutical companies.

briefsthe briefcase

Taft Stettinius & hollister llP is pleased to announce that 20

attorneys in Taft’s cleveland office were selected for inclusion in ohio

Super lawyers 2014 including: Kevin d. barnes, Philip r. bautista,

howard bobrow, michael h. diamant, Christopher b. ermisch,

stephen h. Jett, thomas J. lee, bruce J. l. lowe, Carl A. murway,

stephen m. o’bryan, richard s. rivitz, david r. tavolier, mark J.

Valponi, missia h. Vaselaney, david h. wallace, and timothy l. Zix.

in addition, david h. wallace was honored as “Top 100” ohio Super

lawyer 2014 and “Top 50 cleveland” Super lawyer 2014.

giffen & kaminksi llc is proud to announce edward Proctor as new

Partner. Proctor practices in the areas of real estate litigation, business

litigation, and financial services litigation.

NEW AssociAtioNs & PRoMotioNs

HONORS

brouse McDowell is proud to announce that 23 brouse attorneys have

been selected as 2014 ohio Super lawyers® and Rising Stars including:

Kate m. bradley, Christopher J. Carney, Kevin drummond eiber,

suzana K. Koch, marc b. merklin, linda l. stepan, Caroline l. marks,

michael P. o’donnell, susan P. taylor, and Anastasia J. wade.

The law firm of Roetzel & Andress is pleased to

announce that Anna moore Carulas has received special

recognition in several categories as one of the “Top”

lawyers in ohio by ohio Super lawyers magazine.

Paul Janowicz Kelli steberChelsea Croy

Tucker Ellis llP is pleased to announce that partner

irene Keyse-walker has received the 2013 Excellence in

Advocacy Award from the ohio Association of civil Trial

Attorneys (oAcTA).

buckley king is pleased to announce that brent m. buckley, the Firm’s

Managing Partner, has been again distinguished as one of the “Top 100

lawyers in ohio” for 2014 by Super lawyers (Thomson Reuters).

Jackson lewis P.c. congratulates the following attorneys. Shareholders

Patricia f. Krewson and ryan J. morley and Associates morena l. Carter

and daniel l. messeloff were selected to the 2014 ohio Rising Stars list

cleveland Managing Shareholder James m. stone and Shareholder Jeffrey

b. Keiper were selected to the 2014 ohio Super lawyers list.

ulmer & berne llP is pleased to announce that

attorney Joseph s. simms has been appointed as a

member of the American bar Association’s (AbA)

Securities litigation committee of the litigation

Section and as a co-chair of the Securities Arbitration

Subcommittee. he has also been appointed the

Treasurer of the ohio State bar Association’s (oSbA)

litigation Section. in addition, Mr. Simms serves as a

member of the oSbA’s litigation Section council.

ulmer & berne llP is pleased to announce that michael

n. Ungar, chair of the firm’s litigation Department, has

been ranked the number one lawyer in the State of ohio

for the second consecutive year by Super lawyers.


briefsthe briefcase

ELECTIONS & APPOINTMENTS

Eliza Jennings, a nationally recognized not-for-profit organization and

trusted expert in aging services, announced that Jennifer m. griveas

has been named vice President of legal Affairs and general counsel.

deborah A. Coleman has opened coleman law llc,

through which she will provide arbitration and

mediation services, and counsel and representation

on professional ethics issues. She can be reached at

[email protected].

SOMETHING TO SHARE?Send brief member news and notices for inclusion in the Briefcase to Jackie Baraona at [email protected].

ANNOUNCEMENTS

Zagrans law firm llC is pleased to announce they have moved

their offices. Their new location is 6480 Rockside Woods blvd., South,

Suite 180, cleveland, oh 44131.

Tucker Ellis llP is proud to announce thomas Coffey, Jonathan

Cooper, harry d. Cornett, Jr., stephen ellis, robert hanna, Jeffrey

healy, Christopher hewitt, irene Keyse-walker, John Q. lewis,

irene macdougall, rita maimbourg, John mcCaffrey, mark mcCarthy,

Joseph morford, matthew moriarty, glenn morrical, brian o’neill,

thomas ostrowski, Anthony Petruzzi, susan racey, Keith raker,

dustin rawlin, Patricia seifert, hugh stanley, robert tucker, Jeffry

weiler, and Kevin young have been named “ohio Super lawyers®.”

michael brink, Jonathan feczko, erica James, Arun Kottha, seth

linnick, benjamin sassé, and seth wamelink have been selected as

“ohio Rising Stars®” for 2014.

in addition, rita maimbourg is recognized among the “The Top

50 Women” in ohio and “The Top 25 Women” in cleveland. brian

o’neill and John mcCaffrey are recognized among “The Top 100” in

ohio and “The Top 50” in cleveland.

The following are calfee’s attorneys selected as ohio Super lawyers

for 2014: brent d. ballard, fritz e. berckmueller, mitchell g. blair,

michael e. brittain, Cheryl A. d’Amico, Anthea r. daniels, Virginia

davidson, John J. eklund, david K. hales, maura l. hughes, tracy

scott Johnson, matthew J. Kucharson, donald e. lampert, James

m. lawniczak, matthew m. mendoza, douglas A. neary, Colleen m.

o’neil, robert n. rapp, william l.s. ross, raymond rundelli, K. James

sullivan, Jennifer l. Vergilii, marcia J. wexberg, and nathan A. wheatley.

The following calfee attorneys have been selected as 2014 Rising

Stars: megan e. Chrzanowski, molly A. drake, Jeffrey J. lauderdale,

mark w. mcdougall, william b. mcKinley, brent m. Pietrafese,

Alexander b. reich, lindsey e. sacher, Addisah sherwood, Kimberly

A. textoris, Jennifer b. wick, and eric s. Zell.

hennes Paynter Communications received the coveted “best of

Show” award at the greater cleveland chapter of the Public Relations

Society of America’s annual cleveland Rocks Awards ceremony for its

work on behalf of a ferry boat operator.

Spangenberg Shibley & liber llP is pleased to

announce that attorney william hawal has been

inducted as a Fellow of the American college of Trial

lawyers at their annual meeting in San Francisco.

buckley king is pleased to announce the following attorneys have been

recognized as ohio Super lawyers: brent m. buckley, Kenneth r.

Callahan, daniel P. Carter, theodore m. dunn, Jr., harry w. greenfield,

rosemary sweeney, and Jeffrey C. toole.

Carter strang received the DRi lifetime Achievement

Award for his role in creating the Stokes Scholars Program,

citizens legal Academy, green initiative, and the Tucker Ellis

Pipeline Diversity Program, in addition to his work as

co-author of the curriculum for the 3Rs program.

Cleveland Metropolitan Bar Journal feBruary 2014 WWW.CleMetroBar.orG38 |

ATTORNEY DISCIPLINE on october 8, 2013, gAry miChAel goins, Attorney Registration

No. 0039050, last known business address in gates Mills, ohio, was

suspended from the practice of law in ohio for an interim period. See

the Supreme court’s entry in In re Gary Michael Goins, 2013-ohio-4440

for additional information.

on october 17, 2013, JosePh PAtriCK o’mAlley, Attorney Registration

No. 0060087, last known business address in Westlake, ohio, was indefinitely

suspended from the practice of law in ohio. See the Supreme court’s

entry in Disciplinary Counsel v. Joseph Patrick O’Malley, 2013-ohio-4566 for

additional information.

on october 17, 2013, ronAld robinson, Attorney Registration

No. 0029934, last known business address in cleveland, ohio, was

indefinitely suspended from the practice of law in ohio. See the Supreme

court’s entry in Disciplinary Counsel v. Ronald Robinson, 2013-ohio- 4583 for


on october 22, 2013, forrestine e. mCginnis, was enjoined from

engaging in any further acts that constitute the unauthorized practice of

law in ohio, and a civil penalty was imposed. See the Supreme court’s

entry in Cleveland Metropolitan Bar Association v. Forrestine E. McGinnis,

2013-ohio- 4581 for additional information.

on october 28, 2013, wAyne lewis KereK, Attorney Registration No.

0029211, last known business address in Strongsville, ohio, was suspended

from the practice of law in ohio for an interim period. See the Supreme

court’s entry in Disciplinary Counsel v. Wayne Lewis Kerek, 2013-ohio-4749

for additional information.

on November 21, 2013, JAmes ClArenCe wrentmore, Attorney

Registration No. 0046779, last known business address in Mayfield heights,

ohio, was indefinitely suspended from the practice of law in ohio. See the

Supreme court’s entry in Cleveland Metropolitan Bar Association v. James

Clarence Wrentmore, 2013-ohio-5041 for additional information.

on December 9, 2013, edwArd george KrAmer, Attorney

Registration No. 0024873, last known business address in cleveland, ohio,

was suspended from the practice of law for an interim period. See the

Supreme court’s entry in In re: Edward George Kramer, 2013-ohio-5357 for


on December 5, 2013, PAige n. CAsey, was enjoined from engaging in

any further acts that constitute the unauthorized practice of law in ohio, and

a civil penalty was imposed. See the Supreme court’s entry in Disciplinary

Counsel v. Paige N. Casey, 2013-ohio-5284 for additional information.

Save The Date

summIt detaIlsApril 11 – up to 4.75 clE hours; cME TbD health Care law Update Cle: 12:30–4 p.m. Keynote address / Q&A session: 4–5:30 p.m. followed by networking reception

April 12 – 4.00 clE hours; cME TbD Continental breakfast: 7–8 a.m. Program: 8 a.m.–12:30 p.m.

location global Center for health innovationone st. Clair AvenueCleveland, ohio 44114

Early Registration rate for Summit (before March 1) $75 CmbA members, AmCno members and employees of health systems $125 non-members

Early Registration rate for Summit and update (before March 1) $125 CmbA members, AmCno members and employees of health systems $175 non-members

After March 1, add $50 to listed price

Cle, Cme and risk management Credits Pending

topics and speakers tbA

2014

medical/legalSummit April 11 &12, 2014

Co-sponsored by the Cleveland metropolitan bar Association, Academy of medicine education foundation, and the Academy of medicine of Cleveland & northern ohio (AmCno).

keynote Speaker: Senator bill frist

Chair: matt donnelly, deputy Chief legal officer, Cleveland Clinic foundation

Vice Chair: dr. michael Anderson, University hospitals

this summit is designed to bring together doctors, lawyers, health care professionals and others who work in allied professions for education, lively discussion and opportunities to socialize.

for more information, call the CmbA at (216) 696-2404 or AmCno at (216) 520-1000.

www.amcno.orgwww.clemetrobar.org

FeatuRIng: keynote Speaker

senator bill frist

CMBA 1301 E. NINTH ST. SECOND LEVEL, CLEVELAND, OH 44114-1253

february 2014

FoundationROCKTHE

This year, we’re showcasing all the reasons...

Cleveland Rocks!March 22, 2014

House of BluesRock the Foundation 2014 Host Committee: April Miller Boise, Paul N. Harris, Charles E. Jarrett,

Tom Piraino, Richard W. Pogue, Geralyn M. Presti, Frederick G. Stueber, and P. Kelly Tompkins

Lawyers Giving Back

The Cleveland Metropolitan Bar Foundation’s Signature Charitable Event

presented by

Documents

THIS ISSUE Insurance Law & Personal Injuryattorneysliability.com/media/CMBA_Journal_Feb_2014.pdf · THIS ISSUE Insurance Law & Personal Injury B J ONL ... Micro Systems Management