I. Medical Malpractice

Leftwich v. Martelino (1997), 117 Ohio App. 3d. 405. (180 Day Letter)

Sending a 180 day letter in a medical malpractice case does not shorten the statute of limitations if the letter is sent more than 180 days before the statute of limitations would have run.

Woods v. Dutta (1997), 119 Ohio App. 3d 228. (180 Day Letter)

When the plaintiff sends two 180 day letters in a medical malpractice case, the letter extends the statute from the date of the first letter and not the second.

Grubb v. Columbus Comm. Hosp. (1997), 117 Ohio App. 3d 670. (Statute of Limitations)

The plaintiff fell down a flight of stairs as the result of the negligence of an hospital orderly who was taking the plaintiff from one diagnostic test to another. The Court held that the one year statute of limitations for medical malpractice applied because the transportation of the plaintiff was "ancillary to and an inherent necessary part" of medical diagnosis.

Allore v. Flower Hosp. (1997), 121 Ohio App. 3d 229. (Wrongful Prolongation of Life)

There is no cause of action for wrongful prolongation of life when a medical provider administers life-sustaining treatment contrary to a living will. The health care provider is also not liable for battery when the health care provider is unaware of the living will.

McKinney v. Schlatter (1997), 118 Ohio App. 3d 328. (Existence of Doctor/Patient Relationship)

A Physician-patient relationship can exist between an emergency room patient and an on-call doctor who consulted with the patient's physician even though the on-call doctor never spoke to or met the patient when the on-call doctor 1) participates in the diagnosis of the patient's condition, 2) participates in or prescribes a course of treatment for the patient, and 3) owes a duty to the hospital, staff, or patient for whose benefit his is on call.

Fowerbaugh v. University Hospitals (1997), 118 Ohio App. 3d 402. (Duty of Consultant)

A consulting physician does not have a duty to communicate findings directly to the patient. A written report to the referring doctor may suffice to satisfy the consulting physician's duty.

Blitz v Marymount Hospital (1997), 120 Ohio App. 3d 526. (Statute of Limitations)

Plaintiff who sued medical personal for dropping him from an emergency room bed for diagnosis of a grand mal seizure stated a claim for medical malpractice for which the one year statute of limitations applies.

Wallin v. Univ. of Cincinnati Hosp. (1998) 91 Ohio Misc 2d 221. (Incorrect Diagnosis)

Court of claims held that there is no liability for emotional distress to family of decedent resulting from an incorrect diagnosis of AIDS (HIV virus) when decedent's eyes were donated. First, the court noted that the Ohio Supreme Court issued the Heiner v. Moretuzzon opinion that you cannot recover emotional distress damages for fear of a non-existent physical peril. Second, the plaintiff failed to show negligence on the part of the hospital when it may have been the eye bank that gave the false test.

II. Civil Procedure

Ruiz v. Caraballo (1997), 117 Ohio App. 3d 388. (Appeal -- Final and Appealable Order)

A Rule 41 dismissal of remaining party in action does not render the motion for summary judgment granted in favor of other defendants a final and appealable order. The Rule 41 dismissal operates to extinguish the action as if no action had ever been filed. Presumably, you could re-file against the defendants who got out on summary judgment with no res judicata affect!

West v. Otis Elevator Co. (1997), 118 Ohio App. 3d 763. (Service of Process -- John Doe Defendants)

Plaintiff failed to obtain jurisdiction on "John Doe Defendant's". The plaintiff did not personally serve, did not serve a summons, and the summons did not contain the words "name unknown" as required by Civil Rule 15. Therefore, service was not obtained within one year of filing the original complaint.

Ward v. Johnson's Industrial Cleaning (June 25, 1998), Franklin App. No. 97APE11-1531, unreported. (Discovery -- Medical Authorizations)

A defendant may not require a plaintiff to provide unlimited medical authorizations in a personal injury case. If the parties cannot agree to what is privileged, then the court must conduct an in camera inspection. The Court rejected Horton v. Addy (Jan. 25, 1993), Montgomery App. No. 13525, unreported holding that a trial court may require a plaintiff to provided an unlimited release.

Baker v. Quick Stop Oil Change and Tune-Up (1990), 61 Ohio Misc. 2d 526. (Discovery -- Medical Records)

Defendant is not entitled to medical records that are not "historically or causally" related to the subject of the complaint. A Subpoena may not be used to compel a hospital to produce medical records in discovery. Motion for protective order "activates" the patient-physician privilege.

Walker v. Holland (1997), 117 Ohio App. 3d 775. (Discovery -- Duty of Supplementation)

A party has an obligation to notify the opposing party if an expert witness reviews additional evidence and changes his opinion. Failure to timely notify opposing counsel will result in the inadmissibility of the new opinion.

Williamson v. Ameritech Corp. (1998), 91 Ohio St. 3d 342. (Court Costs)

Court reporter fees are generally not taxable as court costs which may be awarded to the prevailing party.

Armbrust v. United Tel. Co. of Ohio, Inc. (1997), 119 Ohio App. 3d 497. (Statute of Limitations -- Savings Statute)

A cause of action which is dismissed after the statute of limitations has passed may be re-filed within one year of the dismissal pursuant to the savings statute. However, the savings statute does not apply unless the dismissal occurs after the statute of limitations passes. If a cause of action is dismissed prior to the statute of limitations, then the case must be re-filed within the original statute of limitations.

Cseplo v. Steinfels (1996), 116 Ohio App. 3d 384. (Civ. Rule 11 -- Sanctions)

A trial court to award sanctions against a party when the attorney drafts and files a frivolous pleading. The sanctions must be awarded against the attorney who, in this case, did not read the pleading until after it was filed.

III. Subrogation

Nationwide Mut. Ins. Co. v. Kidwell (1996), 117 Ohio App. 3d 633. (Worker's Compensation)

Worker's Compensation subrogation rights do not exist for claims which arose prior to the effective date of the date of the first subrogation statute (former R.C. 4123.93, effective October 20, 1993) even though the claims were "pending" on that date.

In re Estate of Ross (1997), 116 Ohio App. 3d 402. (Worker's Compensation)

Workers Compensation Subrogation Statute, R.C. 4123.931, is constitutional. [This case had been accepted for review by the Supreme Court, but it was dismissed by the plaintiff.]

In re Stepter (1997), 91 Ohio Misc 2d 158. (Victims of Crime Claims)

Worker's Compensation benefits are a collateral source, but the amount paid by the Victim's of Crime applicant for attorney fees should not reduce the amount of the VOC award.

In re Hudnall (1995), 91 Ohio Misc. 2d 115. (Victims of Crime Claims)

Held that execution of a complete release by the applicant compromised the crime victim's fund's right to subrogation and thereby waived any victims of crime claim. But see:

In re Cupp (1997), 91 Ohio Misc. 2d 151. (Victims of Crime Claims)

Overruled In re Hudnall (above). Held that collateral sources should be calculated using the applicant's net recovery from the tortfeasor which should not include the percentage contingent attorney fee. Victims of Crime Claims.

IV. Insurance

Walter v. Wayne Mut. Ins. Co. (March 4, 1998), Wayne App. No. 97CA0030, unreported. (UM Coverage -- Medical Payments Set-off)

An uninsured motorist carrier may not set-off medical payments coverage even though the insured receives a double recovery.

Ott v. Borchardt (March 31, 1998), Seneca App. No. 13-97-47, unreported. (S.B. 20 Constitutional)

The S.B. 20 amendment to the Uninsured Motorist Statute does not violate the right to remedy, separation of powers, special privileges and immunities, and equal protection provisions of the Ohio Constitution. (See also Beagle v. Walden (1997), 78 Ohio St. 3d 59, holding that S.B. 20 does not violate the One Subject Rule of the Ohio Constitution).

Myers v. Cent. Ins. Cos. (1997) 119 Ohio App. 3d 277. (Separate Limit for Loss of Consortium)

In a pre-SB 20 case, the insured's derivative claim for a child's injury is subject to a separate per person limit of liability. This holding is probably not applicable in cases to which the SB 20 amendment to the Uninsured Motorist Statute applies.

Bentley v. Grange Mut. (1997), 119 Ohio App. 3d 93. (UM Coverage -- Consent to Settle)

In a wrongful death case, a settlement between the tortfeasor and the administrator of the decedent's estate does not release the uninsured motorist claims of the next of kin under their own automobile insurance policies.

Weiker v. Motorists Mut. Ins. Co. (1998), 82 Ohio St. 3d 182. (UM Coverage -- Consent to Settle)

A wrongful death beneficiary is not prevented from making an underinsured motorist claim under his/her own policy when the Administrator of the decedent's estate released the tortfeasor from liability without obtaining the consent of the beneficiary's UM carrier. Warning: This heavily relied upon the policy language.

Combs v. Nationwide Mut. Cas. Ins. Co. (1997), 119 Ohio App. 3d 137. (UM Coverage -- Exhaustion Requirement)

The exhaustion requirement is satisfied for underinsured motorist coverage when the injured insured settles for any amount with the tortfeasor's insurance company. Of course, the UDM carrier will be liable only for damages in excess of the tortfeasor's liability limits even though the insured settled for less.

Leader National Ins. Co. v. Eaton (1997), 119 Ohio App. 3d 688. (Reservation of Rights)

Insurer waived the notice requirement imposed for a newly acquired vehicle by paying third party's claim for property damage without conducting an investigation or sending a reservation of rights letter to the insured.

Ohio Farmers v. Estate of Brace (1997), 116 Ohio App. 3d 395. (Cancellation of Coverage)

Policy provision stating that coverage is automatically terminated if other insurance is purchased is not contrary to R.C. 3937.31 which requires an insurer to give notice before cancellation.

Ross v. Farmers Ins. Group of Cos. (1998), 82 Ohio St. 3d 281. (UM Coverage -- Application of Amended UM Statutes)

When the legislature amends the Uninsured Motorist statute, the version of the statute in effect at the time the applicable policy was issued or renewed governs the rights of the parties. The date of the automobile accident or the date when the insured "exhausted" the tortfeasor's liability insurance does not determine what version of the statute applies.

Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St. 3d 339. (Pre-judgment Interest and Attorney Fees in Declaratory Judgment Actions)

If an insurer denies coverage to an insured, and the insured successfully prosecutes a declaratory judgment action, the insured is entitled to pre-judgment interest on a subsequent award under the policy pursuant to R.C. 1343.03(C). Such an award need not be premised upon a lack of good faith by the insurance company. The insured may also recover reasonable attorney fees pursuant to Motorists Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157. However, the insurer is not bound by the terms of a contingency fee contract entered into between the insured and the insured's attorney.

See also, Stacy v. Nationwide Mut. Ins. Co. (Feb. 27, 1998), Erie App. No. E-96-053, unreported, holding that the trial court did not abuse its discretion in awarding $115,000 in attorney fees to a plaintiff who prevailed in a declaratory judgment action.

Dickens v. General Accident Ins. (1997), 119 Ohio App. 3d 551. (Wrongful Discharge from Employment)

An employee's physical symptoms resulting from emotional distress caused by wrongful discharge from employment is not a "bodily injury" for purposes of liability coverage.

Ratliff v. Grange Mut. Cas. Co. (1997), 118 Ohio App. 3d 116. (UM coverage -- Failure to Preserve Subrogation Rights)

The plaintiff released the tortfeasor only 8 days after plaintiff's counsel notified plaintiff's uninsured motorist carrier, Grange, of a pending policy limits offer. The Court held that 8 days notice was sufficient time for Grange to protect its subrogation rights. Caution: this holding was specific to the facts, i.e., Grange had been aware of a potential settlement for several months and counsel was not present when the plaintiff signed the release.

Adams v. Colonial Ins. Co. of California (1997), 121 Ohio App. 3d 122. (Insurance -- Cancellation for Non-payment of Premium)

On January 5, 1996, Colonial sent Adams a premium notice stating that his automobile insurance coverage would expire on January 27, 1996 unless the premium was paid by that date. On January 29, Colonial sent Adams a cancellation notice stating that his insurance coverage would expire on February 10, 1996, unless the premium was postmarked on or before February 10, 1996. The cancellation notice also said that "IF YOU HAVE ALREADY SENT PAYMENT, PLEASE DISREGARD THIS NOTICE". The cancellation notice also said that "premiums must be received in the Company office or be postmarked prior to the due date shown." Although the premium was not received by the due date, Adams testified that he sent the premium prior to the due date. The court held that, although the cancellation notice specified that the premium must be received in the office prior to the due date, this requirement contradicted the notices instructions to disregard the notice if the premium had already been mailed. Hence, the Court concluded, an issue of fact existed as to whether Adams paid the premium prior to the expiration date.

United States Fid. & Guaranty Co. v. Lightning Rod Mut. Ins. Co. (1997), 80 Ohio St. 3d 584. (Commercial Use Exclusion)

A Domino's pizza delivery person negligent stuck and injured a pedestrian. The Domino's employee's insurer, Lightning Rod, denied liability coverage for the accident under the commercial use exclusion which provided:

We do not provide Liability coverage for any person: * * * [f]or that person's liability arising out of the ownership or operation of a vehicle while it is being used to carry persons or property for a fee.

The Court held that this exclusion was ambiguous, i.e. 1) that the exclusion could apply when there is any kind of payment to the insured or 2) that the exclusion only applies when the insured is paid specifically for the particular act of transporting property. Since the Domino's employee was paid an hourly wage, he was not receiving any kind of payment specifically for delivering the pizza. Hence, the court reasoned, the ambiguity of the policy language was interpreted in favor of coverage.

Wagner v. Midwestern Indemn. Co. (1998), 83 Ohio St. 3d 287. (Bad Faith -- Innocent Spouse Rule)

Wagner's business premises burned, and his insurer, Midwestern, denied liability accusing Wagner of arson. Wagner and his wife sued Midwestern for insurance bad faith and breach of contract. The trial court granted Wagner's wife a directed verdict under the innocent spouse rule. The jury found in favor of Wagner and his wife and awarded damages for breach of contract, bad faith, and punitive damages. The Ohio Supreme Court held 1) even though the trial court applied the incorrect standard for bad faith, the error was harmless because the plaintiff prevailed under the more difficult standard; 2) the innocent spouse rule does not apply when the insurance contract provides for joint, rather than separate, coverage.

Worrell v. Daniel (1997), 120 Ohio App. 3d 543. (Coverage for Intentional Acts)

Homeowners insurance policy does not provide coverage for an intentional shooting. This does not meet the definition of "occurrence" which includes only accidents. This is so even though the killer was not the insured under the policy. The causes of action against the insureds, for conspiracy and failing to help, still arose out of the intentional conduct.

V. Evidence

Chambers v. St. Mary's School (1998), 82 Ohio St. 3d 563. (Negligence Per Se -- Ohio Administrative Code)

A violation of an administrative code does not constitute negligence per se. In particular, violation of the Ohio Basic Building Code is not negligence per se.

Dunn v. Maxey (1997), 118 Ohio App. 3d 665. (Mitigation of Damages)

It is not error for a trial court to instruct the jury on mitigation of damages when the plaintiff does not have a surgery which the plaintiff's doctor recommends even when the plaintiff cannot afford to have his doctor do the procedure and is unwilling to have a resident do it. The jury must determine whether the plaintiff's decisions to forego the procedure were reasonable under the circumstances.

Clark v. Doe (1997), 119 Ohio App. 3d 296. (Improper Argument)

Defense counsel's comments about the amount charged by plaintiff's expert for testimony at trial were inappropriate attempts to disparage the witness under the facts of the case.

Miller v. Bike Athletic Co. (1998), 80 Ohio St. 3d 607. (Expert Testimony -- Daubert)

In a product liability case, the Court held that the trial Court abused its discretion in excluding plaintiff's expert testimony based upon Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.ed. 2d 469. The court noted that an experts opinion need not have gained general acceptance by the scientific community or been subject to peer review as a prerequisite to admissibility. The Court explained that these were only factors to be considered. The Court also held that an out of court experiment needs to be "substantially similar" to the occurrence in question only when the experiment purports to duplicate the accident. When the experiment is used for other purposes, "substantial similarity" is not required.

VI. Miscellaneous Torts

Collins v. Sotka (1998), 81 Ohio St. 3d 506. (Wrongful Death -- Tolling of Statute of Limitations)

The discovery rule applies to toll the two year statute of limitations for wrongful death. When the decedent has been murdered, the statute of limitations is tolled until the plaintiff knows that the defendant was convicted.

Zivich v. Mentor Soccer Club (1998), 82 Ohio St. 3d 367. (Releases)

Parents have the authority to bind their minor children to an exculpatory agreement in favor of volunteers and sponsors of a nonprofit sport activity. The agreement may not later be disaffirmed by the minor.

Risk v. Woeste Eastside Motors, Inc. (1997), 119 Ohio App. 3d 761. (Negligent Automobile Repair)

Mechanic who performs a 90,000 mile service is not requires to check or replace the timing belt.

Golembiewski v. ODOT (1997), 91 Ohio Misc. 2d 34. (Negligent Road Repair)

Pursuant the Ohio Manual of Uniform Traffic Control Devises for Streets and Highways, ODOT shall use reflectorized cones when closing a lane of travel at night. Failure to use reflectorized cones at night is negligence.

Kovacs v. Bauer (1997) 118 Ohio App. 3d 591. (Employer Intentional Tort)

Plaintiff's employer required the plaintiff to undergo a second opinion by a physician even after employer had been told that the examination would worsen the plaintiff's condition. A material issue of fact prevented summary judgement on an intentional infliction of emotion distress claim against the plaintiff's employer.

Texler v. D.O. Summers Cleaners & Shirt Laundry (1998), 81 Ohio St. 3d 677. (Premises Liability) -- Trip and Fall.

At trial, the jury held that dry cleaning establishment was 100% liable for injury sustained when plaintiff tripped over bucket being used to prop open a door. In granting judgment to the defendant not withstanding the verdict, the trial court found that the bucket was obvious and that plaintiff was more than 50% negligent as a matter of law. The Supreme Court reversed, holding that sufficient facts existed to support the jury's finding.

Harmon v. Belcan Eng. Group, Inc. (1997), 119 Ohio App. 3d 435. (Sexual Harassment)

In a quid pro quo sexual harassment case, competing inferences based upon circumstantial evidence was sufficient for plaintiff to overcome a motion for summary judgment.

Morrison v. Fleck (1997), 120 Ohio App. 3d 307. (Dram Shop -- Liability of Social Host)

A social host who provides, but does not sell, alcohol to an adult guest is not liable for damages caused by the guest.

Gosden v. Louis (1996), 116 Ohio App. 3d 195. (Defamation)

The plaintiff in a defamation case is required to show fault. For a private individual, negligence is the standard of fault; a showing of malice is not required. However, fault must be proven even when the statement is "libelous per se".

McGuire v. Sears, Roebuck & Co. (1996), 118 Ohio App. 3d 494. (Premises Liability -- Trip and Fall)

McGuire tripped on an elevated row of ceramic floor tile at a Sears store. McGuire alleged that the tile was elevated by 2.5 to 3 inches. Sears employees alleged that the tile was elevated by only .25 to .5 inches. In a "Catch 22" decision, the Court held that, if the Plaintiff was correct about the extent of the defect, then the defendant's were entitled to summary judgment because the defect was "open and obvious". On the other hand, if the Sears employees were correct about the defect, then the defendants were entitled to summary judgment because the defect was insubstantial and trivial.

Leek v. Miller (May 6, 1998), Summit App. No. 18749, unreported. (Premises Liability -- Trip and Fall)

Slip and fall into pot hold 1 1/4 inch deep, 18 inches wide, and 8 inches long is a trivial imperfection. Summary judgment granted to defendant.

VII. Damages

Rouse v. Riverside Methodist Hospital (1983), 9 Ohio App. 3d 206. (Damages)

A parent may recover from the wrongdoer the reasonable value of the care or attendance gratuitously rendered to a child as a result of a negligent injury. However, Plaintiff cannot recover 1) injured husband can't recover for wife's gratuitous nursing services; 2) wife could not recover for lost of earning when she quit her job to take care of injured husband; 3) injured child could not recover for gratuitous services provided by mother; 4) mother can't recover for the loss of her time in nursing her son instead of earning money (but hinted that mother could recover the reasonable value of nursing services).

Gollihue v. Consol. Rail Corp. (1997), 120 Ohio App. 3d 378. (Railroad Liability; Punitive Damages in Wrongful Death)

Garrett was killed when her car collided with a train at a crossing without gates and lights. Although the wrongful death statute does not permit an award of punitive damages, Garrett's estate sought punitive damage based upon the property damage claim: $100 damage to clothes and eyeglasses. The jury awarded Garrett's estate $6 million in punitive damages. In upholding the award, the court held that the punitive damages award was not excessive in light of the potential harm.

VIII. Products Liability

Neal v. McGill Septic Tank Co. (1996), 116 Ohio App. 3d 272. (Successor Liability)

In a products liability case, a corporation which purchases the asset of another corporation is not a successor to the liabilities of the former corporation and is not liable. This is true even when the old corporation merges and ceases to exist, and two years later, a new corporation, by the same name, is formed.

Sutowski v Eli Lilly (1998), 82 Ohio St. 3d 347. (Market Share Liability)

Market share liability is not available in Ohio.

Immormino v J & M Powers, Inc (1997) 91 Ohio Misc 2d 198. (Hot Coffee Case)

Fast food restaurant's warning on cup of hot tea, "Caution-Contents are hot" was sufficient as a matter of law.

Sikorski v. Link Elec. & Safety Control (1997), 117 Ohio App. 3d 822. (Duty to Inspect)

A manufacturer does not have a duty to inspect to insure that its product has been properly installed. Summary judgment for manufacture of presence sensing device for industrial machine is not liable, as a matter of law, when the device is bypassed by plaintiff's employer.

Dutton v. Acromed Corp. (1997), 117 Ohio App. 3d 804 (Federal Preemption -- Medical Devices)

The Medical Device Amendment (MDA) does not preempt a product liability claim for a surgical screw case.

IX. Cases Pending Before the Ohio Supreme Court

Schwarzbek v City of Wauseon Fulton App. No. F-97-011, Sup. Ct. 98-849, accepted July 1, 1998.

There is a difference between the immunity granted to a member of a municipal fire department answering an emergency alarm and a member of a emergency medical service owned or operated by a political subdivision. In the latter case, the employee must comply with R.C. 4511.03 (driver of emergency vehicle must slow down as necessary at red light) in order for the immunity to apply. Issue: the determination of which standard should apply should be made by the actual job performed and not by the job title.

Csulik v. Nationwide Mut. Ins. Co. Stark App. No. 97 CA0283, unreported, Sup. Ct. 98-0772, accepted June 17, 1998.

Choice of law. What law applies in a Pennsylvania accident with an Ohio UM policy? Plaintiff argues that Ohio contract law should apply to permit stacking. Other cases accepted by the Ohio Supreme Court on this issue: Clement v. Grant Mut. Cas. Co. Medina App. No. 2698-M, Sup. Ct. 98-1124.

Headley v. Ohio Government Risk Management Plaint Muskingum App. Case. No. CT97-0017, Sup. Ct. No. 98-0856, accepted July 1, 1998.

Issue: does the plaintiff's employer's policy provide UM coverage when the plaintiff was not working and was not occupying the employer's car?

Wightman v. Consolidated Rail Corp. Erie App No. E-97-1, Sup Ct 97-2342, accepted February 18, 1998.

Issue: can a 15 million dollar punitive damages award be based upon $2400 in property damage in a wrongful death case where punitive damages would not otherwise be awardable. Oral argument scheduled for November 10, 1998.

Scott-Pontzer v. Liberty Mutual Fire Ins. Co. Stark App. No. 97-CA-00152, Sup Ct. 98-442, accepted April 29, 1998.

Does an employer policy provide coverage to an employee even though the employee is not in the course of employment when injured by an uninsured motorist.

Perkins v. Norwood City Schools Hamilton App. No. C-970015, Sup. Ct. 98-570, accepted May 20, 1998.

The plaintiff slipped and fell on water from a drinking fountain. Although school officials knew that the fountain had been leaking for several weeks, school officials decided to try to fix the problem using the school's internal maintenance resources. The trial court and the court of appeals determined that the school was immune from liability because the decision about how to fix the leaking fountain was a discretionary decision.

Stacy v. Nationwide Erie App. No. E-96-53, Sup. Ct. No. 98-0668, accepted June 3, 1998.

Must an insurer obtain a new rejection of uninsured motorist coverage each time a vehicle is added or deleted from a policy?

Johnson v. BP Chemicals, Inc. Allen App. No. 1-97-32, Sup. Ct. No. 97-2723, accepted March 11, 1998.

Is R.C. 2745.01, the employer intentional tort statute, unconstitutional? The Third District Court of Appeals held that it was.

Cappara v. Shibley Cuyahoga App. Nos. 71070, 71368, and 71399, Sup. Ct. No. 98-81, accepted April 1, 1998.

Is evidence of defendant's previous drunk driving offenses admissible to prove a negligent entrustment claim against the defendant's employer who continued to supply him with a vehicle.

Selander v. Erie Ins. Group Darke App. No. 97CA1432, Sup. Ct. Nos. 98-289 and 98-494, accepted April 22, 1998.

Is a business liability policy, which does not provide liability coverage for any specific motor vehicles, but which does cover "hired" or "non-owned" automobiles, subject to the requirements of the Uninsured Motorist Statute?

Bakos v. Insura Property & Cas. Ins. Co. Cuyahoga App. No. 71949, Sup. Ct. No. 97-243, accepted January 21, 1998.

The Court certified the following question for consideration:

"When an insurer denies the claim of an insured, for uninsured or underinsured motorist benefits, as compensation for personal injury, does that denial constitute a material breach of the insurance contract, on the part of the insurer, and, consequently, relieve the insured from the contractual obligation to notify and/or obtain the consent of its insurer, before settling with a tortfeasor, who caused the personal injury, or a tortfeasor's insurer?"

McGuire v. Lovell, Marion App. No. 9-97-77, Sup Ct. 98-946, accepted July 22, 1998.

In order for immunity to apply to a police officer on an emergency run, does there have to be an occurrence known to the officer warranting a belief on the officer's part that he is called to duty. Does the absence of lights and siren create an issue of fact as to willful and wanton misconduct.