Court News Ohio
Court News Ohio
Court News Ohio

Thursday, March 4, 2021

State of Ohio v. George C. Brinkman, Case no. 2019-0303
Eighth District Court of Appeals (Cuyahoga County)

Motorists Mutual Insurance Company v. Ironics, Inc., et al. and Mercy Komar, et al., Case no. 2020-0306
Sixth District Court of Appeals (Wood County)

Disciplinary Counsel v. Richard Barbera, Case no. 2020-1199

Death Penalty Appeal Will Be Heard from Man Convicted in Triple Homicide

State of Ohio v. George C. Brinkman, Case No. 2019-0303
Cuyahoga County Common Pleas Court

In December 2018, a three-judge panel of the Cuyahoga County Common Pleas Court sentenced George Brinkman to death for the June 2017 murders of a friend and the friend’s two daughters. Brinkman is entitled to an appeal of the death sentence to the Ohio Supreme Court.

Longtime Friends Meet to Talk
Brinkman texted his friend Suzanne Taylor on June 10, 2017, asking to meet at her North Royalton home. He wanted to speak with her without her daughters, Taylor Pifer and Kylie Pifer, present. The sisters went shopping and later returned home.

Suzanne Taylor and her daughters were found dead in the house the next day. Suzanne had been stabbed and her throat had been cut. Her daughter Taylor, 21, had been smothered, and daughter Kylie, 18, was strangled.

While looking for Brinkman, North Royalton police discovered he was staying at a family friend’s house in Brunswick. There was a standoff at the house the evening of June 12. Brinkman held a gun to his head and threatened to kill himself. After several hours, a SWAT team was able to apprehend Brinkman the next morning, and police arrested him. He was sent to a hospital for evaluation, then taken to jail.

Brinkman at first denied involvement in the murders, but later confessed to killing the women. He said he forced Suzanne at knifepoint into a bedroom and, when her daughters arrived home, he also used the knife to force them into the bedroom. He had one daughter use zip ties to restrain her sister and mother. He also used duct tape to bind them. He confessed to stabbing Suzanne, smothering Taylor with a pillow, and strangling Kylie with a cellphone charging cord.

Man Pleads Guilty to Murder and Other Crimes
A grand jury indicted Brinkman on multiple counts of murder with death penalty specifications and for burglary, kidnapping, and gross abuse of a corpse. In November 2018, he waived his right to a jury trial and pleaded guilty to a three-judge panel. A few days later, the panel accepted Brinkman’s pleas, found him guilty, and began the mitigation phase of the death penalty trial. In December, the panel sentenced him to death for the aggravated murder of each woman plus 47 years in prison for the other offenses.

Brinkman has raised 13 legal arguments in his appeal to the Ohio Supreme Court. Because of the coronavirus, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Must Jury Hear Mitigation Evidence in All Death-Penalty Trials?
Brinkman’s brief contends that Ohio law requires that a defendant who enters a guilty plea to an indictment involving death specifications must waive the right to a jury trial for both the guilt phase and the mitigation part of the trial. Citing a series of U.S. Supreme Court decisions, Brinkman’s brief maintains he had a constitutional right to have a jury hear the mitigating factors and weigh them against the aggravating circumstances.

The Cuyahoga County Prosecutor’s Office states the Ohio Supreme Court dismissed this argument in State v. Belton (2016). The Court noted that Ohio’s two-phase structure in death penalty cases is different from the U.S. Supreme Court cases, and the different structure has been upheld in other state and federal courts. The prosecutor argues fact-finding is conducted in the guilt phase, and the weighing of circumstances considered in the mitigation phases isn’t a fact-finding process subject to the U.S. Constitution’s Sixth Amendment right to a jury trial. The office adds that Brinkman could have pled guilty and had a jury hear the mitigation evidence, but he chose not to pursue that path.

Was Guilty Plea Valid When Court Didn’t Make Clear All Rights Being Waived?
In State v. Veney (2008), the Ohio Supreme Court made clear that before accepting a guilty or no contest plea, a trial court must advise the defendant that the plea waives specific constitutional rights. Brinkman notes the trial judges failed to tell him that he was waiving the right to confront his accusers and to require the state to prove his guilt beyond a reasonable doubt. Without this notice, he pled guilty. After the state finished the presentation of its case, the court noted the omissions and informed Brinkman of the other rights he had waived. Because he wasn’t properly informed of the rights he was waiving before entering his plea, it was invalid, Brinkman argues.

The prosecutor acknowledges that Brinkman wasn’t fully advised of the rights he was waiving at the outset, but responds that Brinkman’s plea wasn’t complete until the three-judge panel heard all of the evidence and determined that Brinkman was guilty. The trial court addressed any potential legal issues by explaining to Brinkman the rights he was waiving before it made any guilty finding, the prosecutor argues.

Did Admission of Numerous Photographs Not Shown in Court Violate Rights?
Brinkman also contests the admission of hundreds of autopsy photos as evidence when most of them weren’t shown, described, or explained in open court. His lawyers objected to the admission of more than 100 photographs that weren’t presented in court as cumulative and unfairly prejudicial to Brinkman. The court responded that a three-judge panel, in contrast to a jury, could eliminate unfair prejudice or any cumulative effect of the photos. Brinkman maintains that a trial before a three-judge panel doesn’t overcome the state’s rules for admitting evidence or his constitutional rights, such as due process and a fair trial.

The prosecutor counters with an Ohio Supreme Court decision ruling it is presumed in capital cases tried before a three-judge panel that the judges consider only relevant, material, and competent evidence. Because Brinkman pled guilty, the admission of the photos couldn’t have affected the verdict, but could only potentially impact sentencing, the prosecutor notes. However, the prosecutor argues, Brinkman has provided no evidence the panel was improperly influenced or inflamed by the photos that weren’t presented in open court.

Additional Arguments Court Will Consider
Brinkman also asks the Court to reconsider how it conducts its proportionality review in death penalty cases and raises issues with the grand jury’s indictment, the manner in which the aggravating circumstances were considered, the imposition of consecutive sentences in his case, and the constitutionality of the death penalty.

Kathleen Maloney

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

Representing George C. Brinkman from the Cuyahoga County Public Defender’s Office: Jeffrey Gamso, 216.443.7583

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Brandon Piteo, 216.443.3189

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Does Insurance Policy Cover Supply of Faulty Ingredient?

Motorists Mutual Insurance Company v. Ironics Inc. and Owens-Brockway Glass Container Inc., Case No. 2020-0306
Sixth District Court of Appeals (Wood County)

ISSUE: Does the incorporation of a defective ingredient into an integrated product constitute damage to “other” property for the purposes of liability coverage under a commercial general liability or umbrella policy?

Ironics Inc. sells iron tube scale, a byproduct of steel production. Owens-Brockway purchases tube scale from Ironics to use in the production of glass bottles. The tube scale serves as an agent to provide an amber or brown color to the bottles.

Ironics procured tube scale to sell to Owens from American Waste Management. Unbeknownst to Ironics, the tube scale was sent to another company, Foundry Sand Services, for screening. In that process, Foundry Sand Services contaminated the tube scale with grounded chrome stone. When the contaminated tube scale was incorporated into Owens’ manufacturing process, the company discovered the embedded stone. Stone increases the likelihood of glass breakage, and Owens claims that it had to scrap more than 1,850 tons of glass bottles.

Owens announced it intended to sue Ironics, making several claims, including negligence, product liability, and breach of contract, and was seeking payment for permanent physical damage to its glass bottles caused by the defective tube scale.

Ironics submitted the claims to its insurer, Motorists Mutual Insurance, seeking coverage for its legal defense and payments of any damages owed to Owens. Ironics had both a general commercial liability policy and a commercial umbrella coverage policy with Motorists.

Policy Language Slightly Differs
Motorists noted that its policies don’t provide coverage to Ironics for merely doing poor work or providing a deficient product. Motorists denied the Ironics claim, stating that the coverage provides for bodily injury or damage to property “other than” Ironics’ own products arising out of an occurrence.

Under the general policy, Motorists defined “occurrence” and an “accidental” act. The umbrella policy defined “occurrence” as an “accident, or a happening or event” resulting in injury or damage “neither expected nor intended from the standpoint of the insured.”

Motorists denied the Ironics coverage on two grounds. It determined Ironics’ procurement of faulty tube scale wasn’t an “accident” but instead the outcome of poor work and not thoroughly overseeing the production of its product. Because no occurrence happened, the policies weren’t triggered, the insurer concluded. Secondly, Ironics didn’t damage the property of others. Once Ironics’ tube scale was blended into Owens glass mixture, it didn’t damage Owens’ product, but rather made it defective. Had Owens actually sold the bottles and they had broken, the buyer of the bottles would have suffered property damage, Motorists maintained. Owens was essentially seeking only “economic damage” for the lost sale of its bottles, the insurer ruled, stating the economic damage isn’t covered by the insurance policy.

Ironics and Owens jointly sought a declaratory judgment in Wood County Common Pleas Court to force Motorists to provide coverage. The trial court granted summary judgment to Motorists. Ironics appealed to the Sixth District Court of Appeals. The Sixth District reversed the decision in part, finding the broader definition of the umbrella policy provided coverage to Ironics.

Motorists appealed the Sixth District’s decision to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Loss Caused by Business Risk, Not Accident, Insurer Argues
Motorists urges the Court to rely on its 2018 Ohio Northern Univ. Charles Construction Services, Inc. decision to find that faulty workmanship isn’t an “accident” and doesn’t meet the “fortuity” requirements for coverage under commercial general liability policies. Motorists explains that “fortuity,” which is an accident or chance occurrence, is at the heart of the concept of insurance coverage. Liability policies don’t act as performance bonds, which guarantee the quality of the performance of work by a company, the insurer asserts. Policies cover accidents, it says. The risk of selling a contaminated product is a normal, frequent, and predictable business risk, which Ironics is solely responsible for controlling, the insurer argues. In Ohio Northern, the Court ruled that faulty workmanship by subcontractors was not “accidental” and, under the terms of a commercial liability policy, faulty workmanship doesn’t constitute an occurrence that triggers coverage. Motorists maintains that same principle has long applied to suppliers of faulty materials used in a product, and coverage generally is declined.

Motorists objects to the Sixth District’s conclusion that the umbrella policy provides broader coverage because it defined “occurrence” as an accident, happening, or event, and found the unknown stone contamination to be an event. The insurer notes the clause requires the event to be “neither expected nor intended” to qualify as an occurrence. While Ironics may not have intended to sell Owens faulty tube scale, the sale of defective materials is not unexpected in the industry. The potential of selling a defective product is a business risk not covered by the umbrella policy, Motorists argues.

Property Not Damaged, Insurer Asserts
Motorists also urges the Ohio Supreme Court to adopt a 2016 Wisconsin Supreme Court decision, which found that under the principle of an integrated product or system, there was no damage to “other property,” which would trigger liability insurance coverage. In Wisconsin Pharmacal v. Nebraska Cultures of California, Inc., the Wisconsin high court found that when a component ingredient is incorporated into a final product and makes the produce useless or less useful, it isn’t damage to other property as defined in an insurance policy.

Owens’ product was not damaged, Motorists argues, and Owens didn’t sell a damaged product nor did any buyer from Owens receive defective bottles that broke. Because there was no property damage, Owens is seeking “economic loss,” the insurer stated. In Ohio and many other states, courts have ruled economic loss can’t be recovered by suing for negligence or product liability. Economic loss must be covered by claiming breach of contract or a similar argument of breach, which isn’t covered by commercial liability policies, Motorists concludes.

Policy Provides Coverage, Supplier Argues
Ironics and Owens maintain the supply of an unknown defective product is different than faulty construction work by a subcontractor, and the determination of an “occurrence” isn’t the same as in Ohio Northern. Ironics notes the policy excludes its work as the cause of the property damage. The company supports the Sixth District finding that Ironics did no work for Owens, but supplied ingredients. Ironics had never experienced the sale of stone-contaminated tube scale, and Owens had never purchased contaminated scale before. The companies argue the incident was an accident under the policy coverage definitions and Ironics wasn’t in a position to expect or intend to sell defective materials to Owens.

Ironics asserts the incident meets the definition of property damage. It notes that Motorists wants the Court to consider the bottles as an integrated product and decline coverage based on an integrated product rule. But Motorists wrote the policies, and if the insurer intended to exclude coverage for integrated products, it could have explicitly stated so in the policy, Ironics contends. The company warns that many Ohio companies are component and ingredient producers, and if they were sold insurance policies that didn’t cover the risk that a faulty component may damage an integrated product, they might not choose to remain in Ohio.

Ironics also disputes the claim that Owens is seeking only economic damage. Owens claimed physical injury to its product that did more than make it less useful, but rendered it a safety risk that required its destruction. Owens did suffer irreparable property damages, the company asserts, and prior cases have only denied insurance coverage to a supplier in cases where the faulty product supplier could replace the faulty part with a functioning replacement. Because Owens incurred property damage through an occurrence that Ironics didn’t intend or expect, the Motorists policies must provide coverage, the company concludes.

Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the Motorists’ position has been submitted by the Ohio Insurance Institute. United Policyholders, a consumer advocacy group, has filed an amicus brief supporting Ironics and Owens.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Representing Motorist Mutual Insurance Company: Merle Evans, 330.455.01733

Representing Ironics Inc. and Owens-Brockway Glass Container Inc.: Theodore Dunn, 330.363.1400

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Lawyer Whose Client Was Jailed for Missed Hearings Faces Suspension

Disciplinary Counsel v. Richard Barbera, Case No. 2020-1199
Medina County

A Medina lawyer, whose alleged mishandling of a child support modification case twice contributed to his client spending time in jail, faces an 18-month suspension with 12 months stayed.

The Board of Professional Conduct recommends that the Ohio Supreme Court suspend Richard Barbera, noting that some of his actions took place while he was on probation following a 2017 suspension.

Barbera disputes some of the charges against him, and maintains the Court has issued one-year, fully stayed suspensions for attorneys who committed misconduct similar to his. The Supreme Court is obligated to hear objections to board recommendations. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Lawyer, Client Miss Hearing
In Disciplinary Counsel v. Barbera, the Court imposed a one-year, fully stayed suspension on Barbera in March 2017, and ordered him to complete a year of monitored probation, which ended in July 2018.

In June 2017, Dianna Zanglin represented herself in Medina County Domestic Relations Court, where she requested a continuance to move a child support hearing scheduled for July. The magistrate reset the hearing for a date in September. However, the opposing party requested an earlier date. The domestic relations court amended the decision and scheduled a hearing for July 20, 2017.

Around June 20, Zanglin hired Barbera to represent her and agreed to pay him a $2,500 flat fee. Barbera agreed to assist with her request for a child support modification and to resolve a contempt violation related to her past failure to pay child support. At the time she hired Barbera, Zanglin told him the hearing had been continued until September 26. Zanglin was unaware of the change of hearing date and reported that she didn’t receive a notice from the court.

Barbera didn’t file a notice of appearance with the court indicating he was representing Zanglin until July 31, nearly five weeks after being hired. He didn’t check the court’s docket during the five-week period, and didn’t receive notice of the hearing. As a consequence, neither he nor Zanglin appeared at the July hearing.

Client Jailed for Missed Hearings
For failing to appear at the hearing, the court issued an order for Zanglin’s arrest. At Barbera’s suggestion, he and Zanglin visited the court to resolve the matter. At the time, Zanglin was taken into custody and spent six hours in jail.

The trial court dismissed Zanglin’s case and set a December 2018 hearing to consider her request to remove her contempt-of-court order for missing past payments. Barbera charged Zanglin $900 to file an appeal with the Ninth District Court of Appeals. Barbera admitted there was no legal basis to appeal, but did so with the sole purpose of delaying the case until after the November 2018 election with the hope that a new domestic relations court judge would be elected.

Barbera didn’t file a brief with the appellate court, and the case was dismissed. He didn’t tell Zanglin.

At Zanglin’s request, her contempt hearing was rescheduled for February 2019. However, neither she nor Barbera appeared at the hearing, and the judge issued an order for her arrest and 10 days in jail.

Zanglin complained to the Office of Disciplinary Counsel about Barbera’s representation and his repeated failure to attend meetings he scheduled with her and court hearings. She hired a new attorney in April 2019, and appeared at a hearing in her case with her new lawyer. After the hearing, she was arrested and spent 10 days in jail.

Lawyer Ignores Complaint
The disciplinary counsel sent Barbera a letter of inquiry, which he received but did not answer. After not responding to a second letter by the June 2019 deadline, Barbera contacted the disciplinary counsel to indicate he was finalizing his response. However, he never provided a response.

Barbera and the disciplinary counsel stipulated that Barbera violated several rules, including filing a frivolous appeal and failing to inform his client that the appeal was dismissed. He also had failed to track the docket in Zanglin’s case, which contributed to failure to appear at hearings; and he generally was not performing work in a timely manner. He also agreed that he failed to cooperate in the disciplinary proceeding by not responding to the letters.

The board noted that some of Barbera’s violations took place while he was on probation from his 2017 suspension and his neglect of Zanglin’s case contributed to her twice being jailed for missed court hearings. The board proposed the partially stayed suspension with the conditions that Barbera repay Zanglin $900 for the appeal costs and not commit further misconduct.

Lawyer Seeks Shorter Suspension
Barbera argues that his misconduct warrants a one-year, fully stayed suspension. He cites instances when opposing attorneys and the courts failed to provide notification of hearing dates, and that in one instance he told Zanglin to inform the court that he was going to be late because of a scheduling conflict with another case. He also disputes Zanglin’s claims that he missed appointments he scheduled with her.

Based on the circumstances, Barbera argues his misconduct is similar to the attorney in the Court’s 2018 Disciplinary Counsel v. McCray case. In that case, the attorney received a one-year, fully stayed suspension.

Disciplinary Counsel Supports Board Recommendation
The disciplinary counsel asserts Barbera’s case is quite different from McCray, in which the attorney missed hearings and fell behind on client work because her daughter was missing. The attorney also notified the courts of the reasons for her absences and had her cases assigned to other attorneys. The disciplinary counsel maintains that Barbera offers few reasons for his failure to attend hearings and doesn’t address his frivolous appeal.

The disciplinary counsel argues it is rare for an attorney who received prior discipline for failing to cooperate with a disciplinary matter to escape an actual suspension when the behavior is repeated. Because his conduct harmed Zanglin, and he again failed to cooperate with the investigation, Barbera deserves the board’s proposed suspension, the disciplinary counsel concludes.

Dan Trevas

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

Representing Richard Barbera: Ian Mitchell, 513.455.4037

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.387.9700

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