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Court News Ohio
Court News Ohio

Wednesday, Feb. 14, 2018

WEDNESDAY, Jan. 24, 2018

Worthington City Schools Board of Education et. al. v. Franklin County Board of Revision et. al., Case no. 2017-0003
Ohio Board of Tax Appeals

State of Ohio Bureau of Workers’ Compensation v. Loretta M. Verlinger, et al., Case no. 2017-0102
Ninth District Court of Appeals (Summit County)

Judith Pelletier v. City of Campbell et al., Case no. 2017-0088
Seventh District Court of Appeals (Mahoning County)

Should Parking Lot Not Owned by Grocery Store Be Included in Store’s Property Value?

Worthington City Schools Board of Education et. al. v. Franklin County Board of Revision et. al., Case no. 2017-0003
Ohio Board of Tax Appeals


  • Was the adjustment by a grocery store’s appraiser properly made to adjust for physical differences between the store’s property and properties with comparable sales?
  • Did the Board of Tax Appeals fail to value the store property’s fee simple interest, as if unencumbered?
  • Did the Board of Tax Appeals’ decision impermissibly require the store to pay property tax on a parking lot not owned by the store?

The Franklin County auditor valued a Kroger grocery store in Worthington at $3 million for tax year 2014. The retail store sits on 1.699 acres, which doesn’t include a parking lot. To provide parking to customers, the Kroger Company entered an agreement with the owner of the parking lot in front of the store for a voluntary easement that gave Kroger the non-exclusive right to use the shared lot.

Kroger filed a complaint with Franklin County Board of Revision, arguing for a reduction in the auditor’s $3 million valuation. The Worthington City School District Board of Education submitted a counter-complaint asking to retain the auditor’s valuation of the property for tax purposes.

At a hearing before the board of revision, an appraiser for the grocery store placed the property’s taxable value at $2.39 million. The appraiser looked at sales of comparable retail outlets. Noting the Kroger property’s low land-to-building ratio because the parking lot isn’t part of the property, the appraiser calculated an adjustment to the comparable property values to account for that fact. The school board’s appraiser determined, however, that the property’s value was between $4.9 million and $5 million, and rejected the reduction made by the store’s appraiser.

In February 2016, the board of revision accepted the store appraiser’s valuation, reducing the property’s taxable value to $2.39 million.

Parties Appeal Rulings
The school board appealed the decision to the Board of Tax Appeals (BTA). The BTA ruled in December 2016 that the adjustment made by the store’s appraiser was improper and determined the property’s value for taxes was $3.95 million.

Kroger appealed to the Ohio Supreme Court in January 2017. At that time, the law gave parties a right to appeal BTA rulings to the Supreme Court, which was mandated to hear the cases. The Court’s rules provided for oral argument either to a master commissioner or the full court. Kroger requested argument before the full court, which was granted.

Grocery Store Supports Adjustment for Property with Unusual Setup
Kroger notes that the comparable properties used by both appraisers’ calculations all differed from the Worthington Kroger property because each comparable property encompassed land for parking. The store’s appraiser adjusted the property value to account for the unusual physical difference this store had, Kroger states. Contrary to the BTA’s rationale, Kroger maintains that the adjustment wasn’t made to measure the negative impact that the lack of its own parking lot had on the property’s value.

According to Kroger, the BTA made a legal error by misclassifying the store appraiser’s adjustment. The BTA stated that the rights to the parking lot, which Kroger benefitted from, had to be included in the store’s property value. But Kroger counters that, while it had additional rights because of the parking easement, the law doesn’t allow these rights to be part of the real property value subject to taxation.

The BTA improperly transferred the value of the parking lot owned by another entity onto the store’s property, Kroger contends. By doing so, Kroger reasons that the BTA has forced the store to pay extra property tax on a parking lot not owned by the store and taxed to the owner. The BTA decision was unreasonable and unlawful and should be overturned, Kroger concludes.

Use of Parking Lot Is Part of Store’s Property Value, School Board Asserts
The school board responds that the BTA determined the $1.56 million reduction made by the store’s appraiser was unsupported by the facts and was legally improper. Because the parking situation at the store didn’t negatively impact the store’s property value, no deduction should have been made, the school board argues.

The school board adds that the parking easement guaranteed adequate parking to Kroger customers and employees. Given this guarantee and the lack of a negative impact on the store’s property value, an adjustment for the parking lot situation wasn’t warranted, the school board reasons. In addition, the school board supports the BTA’s determination that the rights and privileges Kroger had from the use of the parking lot shouldn’t be excluded from the property’s value. The school board also notes the BTA stated that any increased risk to the property’s value because parking isn’t part of the property was reflected in a higher capitalization rate used to value the property.  

The school board disputes that Kroger is being taxed on the parking lot, which it doesn’t own, and that the parking lot’s value is being taxed twice. The store has rights to the parking lot that continue with the property if sold, the school board maintains. In addition, the school board argues that no evidence in the case record indicates the value of the parking lot or how its value was determined. The school board asks the Court to uphold the BTA’s decision.

Tax Offices Cannot Argue Case
Because the Franklin County Auditor, the Franklin County Board of Revision, and the Ohio Department of Taxation didn’t submit briefs in this case, they will not be permitted to participate in oral argument.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Kroger Company: Nicholas Ray, 614.464.5640

Representing Worthington City School District Board of Education: Mark Gillis, 614.228.5822

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Must Injured Worker Denied Benefits Notify Workers Compensation of Settlement?

State of Ohio Bureau of Workers’ Compensation v. Loretta M. Verlinger, et al., Case no. 2017-0102
Ninth District Court of Appeals (Summit County)


  • Must an injured worker who was denied workers’ compensation benefits notify the Ohio Bureau of Workers’ Compensation (BWC) of a settlement with the person causing the injury if the worker is appealing the denial of benefits?
  • Under R.C. RC. 4123.931 does BWC have subrogation rights to recover medical payments made for an injured worker if at the time of the settlement the bureau had not paid any benefits?
  • For the purposes of R.C. 4123.931, is the bureau of workers compensation notified of a proposed settlement if the injured workers reports to the bureau the names of the parties involved in the accident and their insurance companies?

Loretta Verlinger was employed at her husband’s business Together Leather in Northfield. On Aug. 1, 2011, Verlinger was riding with her husband on a motorcycle when she was struck by a car driven by Suzanne Wolke. The accident occurred around 7 p.m. Verlinger told investigators the store closed at 7 p.m. and she was on her way to a customer’s home to sew couch cushions.

Verlinger suffered severe injuries to her leg. She was life-flighted from the accident scene to hospital, where she spent seven days recovering from surgery. She then spent about three weeks at a nursing home. On August 17, Verlinger filed a claim with BWC seeking coverage for medical payments and lost wages, stating that the accident occurred during the course of employment. A BWC representative contacted her the next day and discussed the accident with Verlinger. BWC also obtained an accident report from the Sagamore Hills Police Department that cited Wolke, and Wolke admitted to causing the accident. The bureau obtained the names of both parties’ insurers, and also the name and address of the customer Verlinger was supposedly on her way to see.

On Sept. 2, BWC denied Verlinger’s claim, stating there was no proof Verlinger had an appointment or was on her way to an appointment with a customer. Verlinger appealed her claim to the Ohio Industrial Commission. Verlinger also filed a lawsuit against Wolke’s insurance company, Metropolitan General Property and Casualty Insurance, and her insurer, Foremost Property and Casualty Insurance. On Dec. 15, while her appeal was still pending, Verlinger settled for $250,000 with the insurance companies, and she did notify the bureau of the settlement. A week after the settlement, the Industrial Commission overturned the BWC denial and found Verlinger was entitled to BWC payments.

In July 2103, BWC sued Verlinger, Metropolitan, and Foremost in Summit County Common Pleas Court. The bureau argued that under Ohio’s “recovery statute” (R.C. 4123.931), the three violated the subrogation provisions of the law by not notifying the bureau of payments. It argued that the law allowed BWC to hold the injured worker and the two insurers jointly and severally liable for the money it paid to Verlinger. BWC claimed it paid about $74,000 in benefits and would pay $46,000 in the future, and that it was entitled to recovery $120,000 of the $250,000.

The trial court ruled that under R.C. 4123.931, the bureau was not entitled to the recovery because it had denied Verlinger benefits at the time of the settlement. The Ninth District Court of Appeals affirmed the decision and BWC appealed to the Supreme Court, which agreed to hear the case.

Settlement Must Be Reported Even If Claim Initially Denied, Bureau Maintains
BWC explains the workers’ compensation is a “pay first, recover later” system, where injured workers receive benefits once it is established they were injured in the course of employment. The bureau retains the right to later recover the payments made to treat and compensate injured workers from those responsible for causing the injuries, including third parties. In this case, Wolke caused the injury and her insurance had a $100,000 limit. Verlinger’s uninsured/underinsured motorist policy had a $250,000 limit, and the three agreed to a total settlement of $250,000 with $150,000 being paid by Foremost.

The bureau argues Verlinger violated the law by not notifying the bureau of the settlement and kept the payment. Because BWC was ordered to pay benefits, the bureau claims Verlinger is receiving a “double recovery” for her injuries, which is not permitted by law.

BWC argues the lower courts wrongly ruled that Verlinger was not a “claimant” at the time she filed the lawsuit, even though she was in the midst of appealing her initial denial of the claim. The subrogation sections of workers’ compensation chapter of the Ohio Revised Code had separate definitions of terms from the rest of the code. R.C. 4123.93(A) states: "Claimant" means a person who is eligible to receive compensation, medical benefits, or death benefits under this chapter or Chapter 4121., 4127., or 4131 of the Revised Code.”

The trial court ruled Verlinger was not eligible to receive benefits when the BWC denied her claim, meaning she wasn’t a “claimant.” Since she wasn’t a claimant, she didn’t have to notify the bureau of the settlement. BWC argues that Verlinger became “eligible” for the benefits once she was injured. She was not “entitled” to the benefits until her appeal was accepted and the proof was provided that she was injured while driving. The bureau argues that Verlinger considered herself a claimant at the time she settled because she was still appealing her denial and seeking coverage. BWC maintains that injured workers continue to be a claimant from the time they file a claim until there is a final determination to pay benefits. If a worker settles any personal injury lawsuit related to the injury, the law requires the worker notify the BWC so it can assert it subrogation rights and recover from the settlement any funds it pays the injured worker.

Worker Claims Bureau Attempting to Amend the Law
Verlinger argues that the lower courts applied the law as written to her circumstances and ruled appropriately in the case. She maintains that to reach the BWC’s conclusion, words would have to be added to the statute. She argues the Ohio General Assembly may want to make revisions to the recovery statute to accomplish what BWC wants, but the Court is not in the position to alter the law.

Verlinger asserts the plain language of the law defines a claimant as “a person who is eligible to receive compensation,” and that “is” means presently eligible. She argues that to accommodate the bureau, lawmakers could easily have rewritten or amended the law to state a claimant “or one who may become a claimant” must notify the bureau of the settlement.

Even if Verlinger was a claimant, she argues, she complied with the law. R.C. 4123.931(G) states: “No settlement, compromise, judgment, award, or other recovery in any action or claim by a claimant shall be final unless the claimant provides the statutory subrogee and, when required, the attorney general, with prior notice and a reasonable opportunity to assert its subrogation rights.”

Verlinger points to the BWC’s case notes on her claim, which show that on the day after she reported the claim in August the customer service represented documented the “subrogation window updated with” information about Verlinger’s attorney and Wolke’s insurance company. While the hearing examiner ruled in December that Verlinger was eligible, the order did not take effect until February 2012. She argues that BWC had the names of the parties that would be involved in a settlement, and that subrogation was possible, and had more than four months to inform the insurance companies that they wanted to assert their recovery rights if there was a settlement. She maintains that complies with the law to give BWC “a reasonable opportunity” to assert its rights.

Insurance Companies Claim BWC Interpretation Unfair
Metropolitan Group joined a brief filed by Foremost in the case, both claiming that the BWC’s interpretation of claimant would unfairly put innocent third parties like insurance companies in the position of having to pay the settlement and additional funds to the bureau if the injured worker didn’t report the settlement. The companies indicate they are only notified from a police report about who is responsible for the accident and then the companies assess what insurance coverage the parties have. They aren’t aware that the accident victim is filing a workers compensation claim, and when the bureau denied the claim they had no way to know if the decision would be overturned. The insurers agree that the lower courts correctly defined claimant as one who is presently eligible for benefits, and at the time they settled with Verlinger, her claim had been denied and she was ineligible.

The insurance companies note that it doesn’t matter to them at the time of the settlement if their payment has to be split by the worker and the bureau. But it would be unfair to hold them jointly and severally liable for repayment of the money to BWC if the bureau comes back after the settlement and informs them they are entitled to money because the injured worker has subsequently become eligible for benefits.

An amicus curiae brief supporting Verlinger’s position has been submitted by Ohio Association for Justice.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Ohio Bureau of Workers Compensation from the Attorney General’s office: Eric Murphy, 614.466.8980

Representing Loretta Verlinger, et al.: Nicholas Papa, 216.451.9130

Representing Foremost Property and Casualty Insurance: Craig Cobb, 216.937.2000

Representing Metropolitan Group Property and Casualty Insurance: Kallen Boyer, 216.781.4994

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Was City Immune from Liability for Accident Involving Stop Sign Allegedly Obscured by Shrubs?

Judith Pelletier v. City of Campbell et al., Case no. 2017-0088
Seventh District Court of Appeals (Mahoning County)


  • Did roadside foliage qualify as an “obstruction” for purposes of determining whether a political subdivision was immune from a claim that alleges negligent failure to maintain a public road?
  • Does the exception to political subdivision immunity when there is failure to keep public roads in repair require that the actual public road be in a deteriorated, damaged, or disassembled state?

Judith Pelletier drove into an intersection in the city of Campbell on the morning of Aug. 22, 2013, and collided with an oncoming vehicle. Pelletier said she couldn’t see the stop sign at the intersection because overgrown shrubs obscured her view of the sign. There was no stop sign for traffic traveling on the cross street.

In March 2014, Pelletier sued the city of Campbell, along with the owner of the property with the shrubs, the mortgage lender, and a property services company the bank hired to take care of the property during a foreclosure process. Pelletier argued that the city had a duty to remove the shrubs and maintain the stop sign to keep it visible to motorists traveling on the street.

The city contended that it had immunity from the lawsuit as a government entity, and asked the trial court for summary judgment. The court denied the city’s motion in November 2015.

On appeal, the Seventh District Court of Appeals also concluded the city wasn’t entitled to summary judgment because the determination whether exceptions to government immunity applied in this case required a jury to consider the facts.

The city appealed to the Ohio Supreme Court, which agreed to review the issues.

Changes Made to Government Liability Law
In 2003, the General Assembly amended R.C. 2744.02, which describes when government entities, referred to as political subdivisions, can be held liable in a civil case. Political subdivisions under prior law were legally responsible for injury, death, or loss to person or property when they failed to keep public roads “open, in repair, and free from nuisance.” The legislation removed “open” and “free from nuisance” in R.C. 2744.02(B)(3), and reworded it to impose liability for a government entity’s “negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.”

City Maintains It Is Immune Because Exception Doesn’t Apply
The city of Campbell argues the shrubbery didn’t qualify as an obstruction under the law. To support its view, the city points to the Ohio Supreme Court decision in Howard v. Miami Fire Dept. (2008). The case involved ice that formed on a roadway from water used in a fire department drill.

In Howard, the Court was persuaded that the legislature made the change from “nuisance” to “obstructions” to place greater limits on the responsibility of political subdivisions for injuries and deaths on their roads. The Court also determined that “an ‘obstruction’ must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so.”

The Seventh District opinion noted that this case involves a mandated traffic control device – the stop sign at this Campbell intersection. Contending that the shrubs were at least 34 feet from the stop sign, the city maintains in its brief that a “thoughtful and logical extension of Howard” would require the stop sign to be blocked, not hindered or impeded, by the shrubbery for the city to be liable for failing to remove an obstruction.

“Foliage or other extraneous conditions – not located on the traveled portion of the roadway – that merely impose a potential visual hindrance, but do not literally render the road sign entirely indiscernible, are not obstructions within the meaning of the statute as defined by Howard,” the city’s brief states.

The city also disputes that it didn’t fail to keep the public road in repair. Citing a 1984 Ohio Supreme Court decision (Heckert v. Patrick), the city notes that the Court ruled the duty of county commissioners to keep county roads “in repair” under a different statute didn’t require trimming or removing tree limbs hanging over county roads. According to the city’s brief, the Court in Heckert found that “‘in repair’ relates only to conditions of the public road in situations of deterioration, disassembly or damage and not to matters not related to the actual condition of the public road.” The city recommends that the Court adopt the same interpretation of “in repair” for R.C. 2744.02(B)(3) in this case. That interpretation wouldn’t include shrubs that many hinder the view of a stop sign, the city maintains.

Driver Contends Factual Issues Must Be Decided at Trial
Pelletier, describing the roadside shrubs as 10 feet high with branches that extended two to three feet into the roadway at the time of the accident, counters that the shrubbery falls within the meaning of “obstruction” in the statute.

Pelletier also notes that Howard involve ice, not a mandated traffic control device such as a stop sign. If the Court does apply Howard to this case, though, Pelletier maintains that the shrubbery did obstruct, or block, the stop sign, which is part of the public road. The stop sign was blocked and indiscernible to a lawful driver on the road, she argues.

“[T]he foliage constitutes an obstruction to the ‘public road’ and it also constitutes an obstruction to visibility of the traffic control device within the public road as defined, thereby rendering the traffic control device ineffective or useless to lawfully control the flow of traffic at the intersection and protect the operating public,” the brief to the Court states.

Pelletier points out that the Court’s review of the summary judgment must view the facts in her favor. A jury could determine that the shrubbery was an obstruction that made the city liable, so the trial court’s denial of summary judgment in favor of the city was appropriate, she reasons.

She also supports the Seventh District’s conclusion that when the stop sign, which was a mandated traffic control device, no longer serves its purpose because of an extraneous factor, it may be in need of repair, which could make the city liable in the accident for failing to address the situation. Reasonable minds could reach different conclusions, so a jury should resolve the issue, she argues.

Heckert involved a tree branch that fell on a road, not foliage that obscured a traffic control device, making the device useless, she notes. In her view, the city had a duty to maintain the proper operation and functioning of the stop sign.

She adds that in Bibler v. Stevenson (2016), the Ohio Supreme Court found that the city of Findlay wasn’t immune from liability because the stop sign in that case fit within the definition of “public road” and the accident allegedly happened because the stop sign wasn’t “in repair” and was obstructed by tree foliage. The Supreme Court rejected the summary judgment ruling, returning the case to the trial court. Pelletier asks the Court to do the same here.

Several Organizations Align with City
Amicus curiae briefs supporting the city of Campbell’s position have been submitted by:

Association Backs Driver, Will Argue Before Court
The Ohio Association of Justice has filed an amicus brief supporting Pelletier. The association and Pelletier jointly requested that the association be permitted to present oral argument. The Court agreed to allow the association to share the time allotted to Pelletier.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the city of Campbell: Gregory Beck, 330.499.6000

Representing Judith Pelletier: Gregg Rossi, 330.744.8695

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

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