Tuesday, Feb. 28, 2023
City of Olmsted Township v. Chad B. Ritchie, Case No. 2022-0262
Eighth District Court of Appeals (Cuyahoga County)
Stingray Pressure Pumping LLC v. Jeffrey McClain, tax commissioner of Ohio, Case No. 2022-0304
Ohio Board of Tax Appeals
Austin Krewina v. United Specialty Insurance Co., Case No. 2022-0322
First District Court of Appeals (Hamilton County)
Machelle Everhart, individually and as administrator of the estate of Todd Everhart v. Coshocton County Memorial Hospital et al., Case Nos. 2022-0407 and 2022-0424
Tenth District Court of Appeals (Franklin County)
When May Courts Impose Later Jail Time if Offender Violates Community Control?
City of Olmsted Township v. Chad B. Ritchie, Case No. 2022-0262
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Can a trial court impose jail time for a community control violation when the court didn’t suspend part of the original sentence at sentencing?
BACKGROUND:
In September 2018, Chad Ritchie was found guilty of four misdemeanors in the city of Olmsted Township. The crimes were operating a vehicle while under the influence of alcohol with a prior offense, driving with a suspended license, endangering children, and domestic violence. The maximum sentence for each charge was 180 days in jail. The Berea Municipal Court sentenced him to 30 days for each offense, for a total of 120 days, and five years on community control.
Ritchie also received a three-year prison term in another case. The municipal court ordered that the misdemeanor sentences would be imposed consecutively to the prison term. After Ritchie was released from prison in February 2020, he asked the municipal court to instead impose the sentence for his misdemeanor offenses concurrently with the time had already served in prison. The court agreed, stating that his 30-day jail terms had run concurrent with his prison term “[l]eaving a 150 day jail sentence on each count,” referring to the maximum jail term of 180 days.
After Ritchie violated the conditions of his community control, the court imposed no additional jail time. But the court reminded Ritchie that he could be subject to the maximum penalties for each charge for not complying with the community control conditions.
Ritchie appealed the municipal court’s sentencing rationale to the Eighth District Court of Appeals. The appeals court ruled that the municipal court didn’t impose the maximum 180-day sentence for each charge, then suspend 150 days, to arrive at each 30-day jail sentence. Instead, Ritchie was sentenced to 30 days on each charge, and he had completed those sentences, the Eighth District reasoned. It concluded that Ritchie couldn’t be subject to more jail time for the offenses for violating the terms of his community control.
The city of Olmsted Township stated that the Eighth District’s ruling conflicts with decisions from four other state appellate courts. The Eighth District agreed and certified the conflict to the Supreme Court of Ohio, which will review the conflict.
Maximum Jail Time in Law Could Be Imposed, City Maintains
According to Olmsted Township, the Eighth District misinterpreted a state law to mean that the maximum jail time for a misdemeanor is the exact jail term from the possible range that the court imposes at sentencing. The city counters that a defendant is subject to the full jail time available for an offense if the defendant violates community control conditions after release. The court doesn’t have to specifically impose a longer jail term at sentencing to impose it for community control violations, the city maintains.
The maximum jail term possible for each of Ritchie’s misdemeanors was 180 days. The city argues that Ritchie could spend up to 180 days in jail under R.C. 2929.25(D)(4) for each misdemeanor conviction plus any violations of community control. He served 30 days on each count, leaving 150 days available on each count for community control violations, the city asserts.
The Eighth District’s decision conflicts with rulings on this issue from the Fourth, Seventh, Ninth, and Eleventh District Courts of Appeal, the city notes. Those courts found that the phrase “maximum term available for the offense” doesn’t mean that the longest sentence available in the statute first must be imposed, then suspended by the court, the city contends. It adds that Ritchie was notified by the judge that 150 days were still a possible sentence for each offense. The days available to a court for a later violation of community control are those the court informed the defendant of, not the number of days specifically imposed at sentencing, the city maintains.
Court Failed to Reserve Jail Time for Community Control Violations, Man Asserts
Ritchie responds that the municipal court could sentence him to only community control; jail with no community control; or a combination of jail and community control, by imposing a jail sentence and then suspending a portion of it. Instead, Ritchie argues, the court imposed a maximum sentence of 30 days in jail for each offense and suspended none of it, meaning no time was reserved to send him back to jail if he violated the community control conditions.
He contends that the municipal court had the option to sentence him to the statutory maximum of six months for each count, but instead found that 30 days was appropriate, which set the maximum jail term for each offense at 30 days. To ensure due process and to abide by the state law, a defendant given a blended sentence of jail and community control must know exactly how much jail time could be imposed if the defendant violates the conditions of community control, Ritchie maintains.
He states that the cases from the other state appellate courts don’t conflict with the Eighth District decision in his case because the trial courts in those situations imposed a sentence, then suspended a portion of it.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the city of Olmsted Township: James Mathews, 330.499.6000
Representing Chad B. Ritchie: Joseph Patituce, 440.471.7784
Does Equipment Used in Fracturing Shale Qualify for Tax Exemption?
Stingray Pressure Pumping LLC v. Jeffrey McClain, tax commissioner of Ohio, Case No. 2022-0304
Ohio Board of Tax Appeals
ISSUE: Did a 2017 amendment to the Ohio tax code exempt from Ohio sales and use tax the items used to insert water, chemicals, and sand into wells to create the fractures in rock that allow for the production of oil and natural gas?
BACKGROUND:
Stingray Pressure Pumping performs hydraulic fracturing at well sites that allow for the extraction of oil and natural gas from shale formations. Once wells are drilled and prepared for oil and gas production, Stingray is employed by the oil and gas producers to add a mix of water, chemical, sand, and other materials under high pressure to create fractures and crevices in the shale that allows for oil and natural gas to flow more easily from the ground through the wells.
Stingray claimed exemption from the state sales tax for several pieces of the equipment it used in the process. In two separate rulings in 2015, the Ohio tax commissioner issued assessments denying exemptions for 60 pieces of equipment. The tax, with penalties and interest, amounted to nearly $3.63 million.
Stingray appealed the assessments to the Ohio Board of Tax Appeals (BTA), arguing that under R.C. 5739.02 it was entitled to the exemptions because the equipment was used in the production of oil and gas. During the course of the appeal, the tax commissioner cancelled 33 of the 60 assessments, and Stingray didn’t continue to contest the tax on four pieces of equipment. It continued to object to the assessment on 23 pieces of equipment in six categories, and the hundreds of thousands of dollars in taxes, penalties, and interest attached to the items.
The BTA affirmed the tax commissioner’s ruling, and Stingray appealed to the Tenth District Court of Appeals. As the appeal was pending, the General Assembly amended the tax code, creating R.C. 5739.02(B)(42)(q). The law, which took effect in 2018, clarified the tax on items used directly in the production of oil and gas. The law applied retroactively.
The Tenth District remanded Stingray’s case to the BTA, instructing the board to apply the newly written tax law. The BTA again affirmed the tax commissioner’s assessment on the 23 pieces of equipment, writing that even under the change in the law, the equipment was still taxable. Stingray appealed the BTA’s decision to the Supreme Court of Ohio, which agreed to hear the case.
Items Meet Exemption Requirement, Company Asserts
Prior to 2018, state law provided an exemption for items used directly in the production of oil and gas. The new law provides further clarification by listing categories of “things transferred,” which are exempt from sales tax, and equipment that doesn’t qualify as things transferred and is taxable, Stingray explains. Stingray cites R.C. 5739.02(B)(42)(q)(VIII), which states, “Reservoir stimulation, hydraulic fracturing, and acidizing services, and tangible personal property directly used in providing such services, including all materials pumped downhole,” are exempt. It cites six types of equipment that met the definition, yet were taxed by the commissioner. Those items included “sand kings,” also known as sand silos and sand bins, which hold between 300,000 and 500,000 thousand pounds of sand. Also included were the units providing the water and chemicals to a “blender” in which the sand was mixed. Each piece of equipment has its own operators, but the amount of materials going into the blender is coordinated by an operator of a “data van.” At the direction of the data van operator, the materials are all pumped into the well under high pressure and, once pressure of the oil and gas below pushes the material out of the well, the production of the oil and gas begins, Stingray explains.
The equipment’s use to fracture the shale and allow the oil and gas to rush up means it is used directly in the production of oil and gas, the company asserts. Lawmakers wrote that the amendments to the law are a “remedial measure,” and Stingray notes that remedial legislation is to be applied liberally to carry out its purpose. The company says the BTA applied a restrictive interpretation of the law to deny the exemptions, which is contrary to what the legislature was attempting to achieve.
Equipment Not Directly Used in Production, Commissioner Maintains
The tax commissioner notes that it cancelled the tax on 33 items after considering Stingray’s contention that its equipment is used directly to produce oil and gas. It then concluded the other items are not “directly” used in production but are used in the preparation stage of oil production. The commissioner argues lawmakers clarified the law, but didn’t change the requirement that only equipment used directly in the production of oil and gas is exempt.
The tax department reviewed each piece of equipment and questioned the company’s operations leader to determine whether the equipment met the requirements for the exemption. It found the items that didn’t qualify before the law change continued not to qualify. The BTA affirmed the commissioner’s position that the taxed equipment were items used in the preparatory stage of oil production, the commissioner maintains. The commissioner argues that Stingray points to the provision in the law that defines the type of equipment eligible for exemption. However, to qualify for the exemption the company had to prove to the BTA how that equipment was used directly in production. Because Stingray failed to overcome the presumption that the items are taxable, the BTA properly concluded the equipment was taxable, the commissioner concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Stingray Pressure Pumps LLC: Edward Bernert, 614.228.1541
Representing Jeffrey McClain, tax commissioner of Ohio, from the Ohio Attorney General’s Office: Daniel Kim, 614.955.5249
Did Insurance Policy Exclude Coverage for Injuries From Attack by Mentally Ill Man?
Austin Krewina v. United Specialty Insurance Co., Case No. 2022-0322
First District Court of Appeals (Hamilton County)
ISSUE: Does an exclusion in a commercial insurance policy for harm from assault and battery, or harm from abuse, apply if a person prosecuted for causing the harm is deemed not guilty by reason of insanity?
BACKGROUND:
The Brown County Care Center in Georgetown is a residential care facility that houses “psychologically mentally ill” individuals who are transitioning from jails and behavioral facilities into independent living. In 2014, Colin Doherty and Austin Krewina were both residents of the care center. Doherty attacked Krewina with a razor knife, inflicting serious wounds that required Krewina be airlifted to a Cincinnati.
A month after the attack, Doherty was indicted in Brown County Common Pleas Court for attempted aggravated murder, attempted murder, and felonious assault. In January 2015, the trial court found Doherty not guilty by reason of insanity. Doherty was confined to Summit Behavioral Healthcare Hospital in Hamilton County.
Because Doherty was housed in Hamilton County, Krewina sued the care center and Doherty in 2016 in Hamilton County Common Pleas Court for damages arising from the attack. Krewina alleged the care center was negligent for placing him in a position to be injured by Doherty because it knew Doherty “suffered from a derangement of his intellect” and was a danger to himself and others.
Care Center Seeks Defense From Insurer
The care center contacted United Specialty Insurance Company (USIC), its insurance provider, requesting the insurer provide a legal defense and indemnify the care center for any damages awarded to Krewina. USIC denied coverage, citing two exclusions in the general liability policy it sold to the care center. The policy excluded bodily injury arising out of “any actual, threatened, or alleged assault or battery.” A second exclusion denied coverage for alleged abuse, and noted that if the abuse exclusion didn’t apply, coverage was limited to $25,000 per occurrence.
The care center asked the trial court to include USIC in the case and continued to argue that its USIC policy provided coverage. Krewina subsequently dropped his case against Doherty and agreed to a settlement with the care center without providing USIC any notice of the agreement. Krewina and the care center settled for $1 million and asked the court to enter it as a judgment. Krewina agreed not to seek the money from the care center, and the center assigned Krewina its right to force USIC to pay the judgment. When Krewina attempted to enforce the judgment, the trial court ruled that Krewina’s claims were excluded from USIC’s coverage, and the insurer didn’t have to pay.
Krewina appealed to the First District Court of Appeals, which reversed the trial court’s decision.
USIC appealed to the Supreme Court of Ohio, which agreed to hear the case.
Policy Plainly Excludes Coverage, Insurance Company Asserts
USIC argues that the First District applied the wrong standards to interpret an insurance policy. The court had ruled that because of Doherty’s mental illness, he couldn’t have formed the intent to commit an assault or abuse. Because Doherty didn’t assault or abuse Krewina, the policy exclusion didn’t apply, the court ruled. USIC explains that insurance policies are supposed to give the common and plain meaning to the terms. There is no doubt that Doherty’s acts constituted assault as the term is plainly understood, the company asserts. The fact that Doherty can’t be held criminally responsible for his actions doesn’t mean the injuries Krewina suffered weren’t caused by an assault, USIC asserts. The company notes that throughout the proceedings, Krewina and others described the incident as an assault.
USIC argues that its policy is broadly written to exclude coverage from assault and to exclude claims made against care center employees who could be deemed negligent for allowing an assault to be committed. The insurer also notes that a person found not guilty by reason of insanity can be held civilly responsible for any harmful acts. The company maintains the appeals court applied a legal standard for criminal cases to exclude coverage for a civil claim made by Krewina against the care center. The insurer argues the policy coverage shouldn’t be determined by legal distinctions regarding the perpetrator’s intent, but rather by what an ordinary, reasonable person would consider an assault and battery.
Policy Covered Injuries Caused by Assailant, Victim Asserts
Krewina notes that USIC didn’t define “assault,” “battery,” or “abuse” in its policy. Without definitions, the First District applied the meaning of the words based on common law and statutory definitions, he notes. Using the legal terms, the court found the words all require a perpetrator to act with intent, and found the policy exclusions weren’t triggered because Doherty was incapable of acting with such intent, he notes. Krewina maintains the broad “ordinary person” standard advanced by USIC would cause insurance policies to be ambiguous and harder to interpret.
Krewina notes other insurers have expressed concern about covering institutions housing the mentally ill, and have added provisions to policies to exclude coverage for assaults even if “such covered person lacks the mental capacity to govern his or her conduct.”
Krewina notes the First District relied on the Supreme Court of Ohio’s 1994 Nationwide Ins. Co. v. Estate of Kollstedt decision, which concerned an insurance policy’s exclusion of intentionally harmful acts and a murder caused by a person with a severe mental illness. The Court ruled an exclusion can’t bar coverage for an intentional act when the person lacked the mental capacity to commit an intentional act. Krewina notes that in a concurring opinion, one of the First District judges expressed her dissatisfaction for the Kollstedt decision, but admitted she was constrained by the ruling to find in Krewina’s favor. Krewina notes that USIC didn’t ask the Supreme Court to overrule Kollstedt but argues that it doesn’t apply to this case. Krewina disagrees, and urges the Court to uphold the First District’s decision and its reliance on Kollstedt.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting USIC’s position was submitted by the Ohio Association of Civil Trial Attorneys. The Ohio Insurance Institute also filed a brief in support of the insurer. The Ohio Association for Justice filed an amicus brief supporting Krewina.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing United Specialty Insurance Co.: Richard Garner, 614.901.9600
Representing Austin Krewina: Brian Butler, 513.621.8800
Does Deadline for Medical Malpractice Lawsuits Apply to Wrongful Death Claims?
Machelle Everhart, individually and as administrator of the estate of Todd Everhart v. Coshocton County Memorial Hospital et al., Case Nos. 2022-0407 and 2022-0424
Tenth District Court of Appeals (Franklin County)
ISSUE: Does the statute of repose for medical claims, in R.C. 2305.113(C), apply to wrongful death claims described in R.C. Chapter 2125?
BACKGROUND:
On Jan. 25, 2008, Machelle Everhart filed a lawsuit alleging the wrongful death of her husband, Todd, who died on Oct. 28, 2006, from lung cancer.
The lawsuit asserts that Todd’s death resulted from doctors failing to diagnose his cancer when he was hospitalized after a motor vehicle accident in December 2003. Todd was seriously injured in the accident and taken to the emergency room at Coshocton County Memorial Hospital. He was evaluated by medical staff, and X-rays were taken of his chest.
The X-rays were read by Dr. Joseph Mendiola, the radiologist on duty that night. The doctor noted an “opacity” that might be a “lung contusion.” Dr. Mohamed Hamza was assigned as Todd’s physician while he was at the hospital. Todd was transferred to a Columbus hospital and was released later. The Coshocton County doctors didn’t see him for any further medical treatment related to his emergency room visit.
In August 2006, two months before his death, Todd was diagnosed with advanced stage lung cancer.
His wife’s lawsuit was filed in Franklin County Common Pleas Court against the Coshocton County hospital, Mendiola, Hamza, and other doctors.
Trial Court Determines Lawsuit Was Filed After Deadline
In September 2020, the defendants asked the trial court to decide the case based on the pleadings that had been submitted. The court granted only Mendiola’s request, determining that Everhart’s lawsuit alleging wrongful death was a medical claim that was filed too late under a state law for medical malpractice actions. The court dismissed the lawsuit against Mendiola. It stayed the motions from the hospital and other doctor while the ruling was appealed.
Everhart appealed to the Tenth District Court of Appeals, which in March 2022 reversed the trial court decision. The Tenth District ruled that the deadlines in the statute for medical malpractice claims don’t apply to wrongful death claims, which the court concluded are governed by a different state law.
The doctors and the hospital appealed to the Supreme Court of Ohio, which accepted the case. They also argued that state appellate courts are in conflict on the deadlines for wrongful death lawsuits. The Supreme Court agreed and will review the conflict.
Medical Malpractice and Wrongful Death Laws
Two sets of statutes are debated in the case. R.C. 2305.113 addresses civil lawsuits alleging medical malpractice. It states that these legal actions need to be filed within one year after an injury occurred or was discovered. But the statute also explains that the latest the lawsuits for medical malpractice claims can be made is four years from the occurrence or omission underlying the claim. After four years, such lawsuits are barred, even if the injury hasn’t been discovered. The four-year deadline is called a “statute of repose.”
R.C. Chapter 2125 governs civil lawsuits asserting wrongful death. R.C. 2125.02 states that a lawsuit for wrongful death must be filed within two years after the person’s death.
Any Medical Claim Must Be Filed Within Four Years, Hospital and Doctors Contend
In separate briefs, the hospital and doctors rely on the definition of “medical claim” in R.C. 2305.113, the medical malpractice law. A medical claim is defined in part as “any claim that is asserted in any civil action against a physician, … hospital, … and that arises out of the medical diagnosis, care, or treatment of any person.”
They point to the Supreme Court of Ohio’s 2016 ruling in Antoon v. Cleveland Clinic Foundation, which upheld the four-year deadline in the medical malpractice law. Even though Everhart made a claim of wrongful death, the hospital and doctors argue that her claim was a “medical claim” based on the medical care her husband received – making her lawsuit subject to the deadlines in the medical malpractice law. Her husband’s emergency room visit was in December 2003, and she filed suit in January 2008. They contend that Everhart filed her lawsuit after the statute of repose four-year deadline had expired.
The hospital and doctors assert that the appellate courts in the Third, Fifth, and Eleventh districts have agreed with this view that the statute of repose applies to wrongful death lawsuits. The Court’s 2020 decision in Wilson v. Durrani further supports this conclusion, the hospital and doctors maintain. They state that the Court ruled in Wilson that any exceptions to the four-year deadline would be clearly stated by the General Assembly. However, the legislature did not exempt medical claims involving death from the four-year deadline, they maintain.
Wrongful Death Claims Governed by Separate Statute, Widow Asserts
Everhart responds that the statutes deal with two distinct types of lawsuits – R.C. 2305.113 addresses medical negligence claims that an injured person can make, while R.C. Chapter 2125 offers a legal remedy after a person’s death.
She points out multiple distinctions between wrongful death and medical negligence claims. Wrongful death lawsuits, such as hers, are brought by the administrator or executor of an estate, while medical negligence actions are brought by the injured party. Wrongful death suits seek damages for injuries suffered by surviving next of kin after a person’s death, and claims of medical negligence address injuries to a person before death. Each also has different legal standards for proving the case.
Wrongful death actions are governed exclusively by R.C. Chapter 2125, Everhart asserts. She maintains that wrongful death lawsuits like hers have their own statute of limitations stated within the chapter – “a civil action for wrongful death shall be commenced within two years after the decedent's death.”
If the legislature had wanted to set a statute of repose for wrongful death lawsuits, it would have stated the deadline within R.C. Chapter 2125, Everhart argues. This reasoning aligns precisely with the Court’s rationale in Wilson, she states. She also notes that the Tenth District found the statute is unambiguous.
Groups Submit More Arguments
The Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association filed a joint amicus curiae brief supporting the Coshocton County Memorial Hospital and the doctors. Dr. Thomas Keane, who was a party in a case on this issue decided by the Fifth District Court of Appeals, also submitted a brief in support of the doctors and hospital.
An amicus brief supporting the Everhart’s position was submitted by the Ohio Association of Justice, which represents 1,500 attorneys who represent plaintiffs in civil cases.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (Case Nos. 2022-0407 and 2022-0424).
Contacts
Representing Coshocton County Memorial Hospital: Brant Poling, 614-737-2900
Representing Mohamed Hamza, MD: Frederick Sewards, 614-324-4517
Representing Joseph Mendiola, MD: David Krause, 614-228-1311
Representing Machelle Everhart: David Shroyer, 614-228-7122