YOUNGSTOWN — A federal judge has ruled a company that insured Youngstown isn’t responsible for any financial claims, which could be as high as $5 million, in a wrongful death lawsuit because of the city’s “extreme incompetence,” including failing to report the incident to the company for almost five years.

In his decision in favor of U.S. Specialty Insurance Co. (USSIC), U.S. District Court Judge John R. Adams also pointed to several legal blunders by the city’s law department, specifically mentioning Law Director Jeff Limbian.

“Limbian’s testimony established that he failed to oversee the litigation until after mediation, when it became clear that the matter was beyond the city’s expertise and resources,” Adams wrote in his decision. “The fact that the city waited until after mediation, two-and-a half-years after the complaint was filed, to admit it was in over its head and to call in outside resources, resulted in significant missteps and mistakes that cannot be undone.”

Adams added about Limbian: “Upon review of his testimony, it becomes clear just how ill equipped the city was to handle the underlying litigation. Throughout his testimony, Limbian justified his complete lack of oversight in the legal department by repeatedly stating he was not familiar with the civil rules or anything dealing with civil liability.”

Limbian declined to address Adams’ criticism of him.

Limbian said: “We strongly disagree with the opinion and naturally we will be appealing to the federal district court of appeals on the issue of insurance coverage. This is a complicated issue that started with decisions made in the prior city administration. It’s been left to this administration’s law department to clean up a circumstance and decisions that happened in 2017.”

He added: “We are currently in three courts on one case. Ultimately, the matter will be tried to a jury in the Mahoning County Court of Common Pleas. The law department is confident that a jury will find in favor of the city on the underlying civil claims.”

WHAT OCCURRED

USSIC issued a liability policy to the city from Dec. 31, 2016, to Dec. 31, 2018.

Thomas Morar of Youngstown was injured June 17, 2017, while riding a motorcycle on Oak Street Extension on the city’s East Side when a tree fell on him. Morar died April 2, 2019, at the age of 80.

Cheryl Durig of Newton Falls, the executor of Morar’s estate, sued Youngstown on June 14, 2019, in Mahoning County Common Pleas Court for economic damages, pain and suffering, and wrongful death arising out of the accident.

Jamael Tito Brown started serving as Youngstown mayor Jan. 1, 2018, and Limbian was hired right after that.

The Durig lawsuit states Morar “suffered significant injuries, great pain of both his body and mind, emotional distress, humiliation, loss of dignity, loss of enjoyment of life and incurred medical treatment” as a result of the accident.

Also, that lawsuit states the city was aware the tree that fell on Morar was in poor condition and though it was on city property, city officials did nothing to address it.

The city was served June 25, 2019, and filed its answer Aug. 2, 2019, without raising any defenses regarding immunity from liability under state law. Local governments in Ohio are entitled to raise immunity from liability as a defense in most court cases in which it is performing a government or proprietary function.

The city filed a motion Dec. 17, 2021, in opposition to Durig’s motion for judgment. The city motion “contained only four pages of substantive argument based solely on immunity despite the fact that the city had failed to raise the affirmative defense at any time prior,” Adams decision reads.

Prior to an unsuccessful Feb. 14, 2022, mediation, Durig’s attorney demanded a $5 million payment, which the city opposed.

After that, Limbian, according to Adams decision, considered hiring outside counsel because the law department “didn’t have the staffing to accommodate what was, in my estimation, turning into a very large case.”

Adams noted that Limbian “was unaware that the case involved a death until after mediation” despite “the wrongful death complaint being filed nearly two and a half years prior.”

OUTSIDE HELP

The city hired attorneys from Roetzel & Andress of Akron as outside legal counsel on March 18, 2022, to replace James Vivo, the city’s first assistant law director who was handling the case.

The Roetzel & Andress attorneys sent an April 7, 2022, letter to USSIC “providing notice of the pending lawsuit and requesting defense and indemnity. The city concedes this letter was the first time it provided notice to” the insurance company, Adams wrote.

Meanwhile, Thomas Pokorny, a visiting judge assigned to the common pleas court case, ruled April 28, 2022, that the city failed to timely assert the immunity defense. The city appealed that decision May 6, 2022, to the state’s 7th District Court of Appeals. The court heard oral arguments this past May 3 and hasn’t ruled.

USSIC notified the city May 9, 2022, that it was denying coverage — stating Youngstown “breached the policy’s notice provision, resulting in forfeiture of coverage.”

On the same day, it filed the federal lawsuit stating it wasn’t told of the Durig lawsuit until April 7, 2022, and therefore “owes no coverage for the matter under the policy.”

“USSIC disputes that coverage exists for the lawsuit under the (city’s) policy,” the lawsuit read.

The insurance company also wrote that the city made a number of legal errors in how it handled the case in addition to taking too long to inform it of the lawsuit.

The city filed a counterclaim May 31, 2022.

In his decision, Adams wrote: “The city failed to give timely notice here and the ‘unexcused significant delay’ was unreasonable as a matter of law. There is no dispute that the incident occurred on Sept. 6, 2017, the lawsuit was filed June 14, 2019, and the city did not notify (USSIC) until April 7, 2022. At its core, this case is little more than the city attempting to get a second bite at the proverbial apple to cover up its extreme incompetence in litigating the case up to that point of finally hiring outside counsel who notified” the insurance company.

Adams wrote Limbian “admitted” the city could have reported the incident to USSIC sooner than April 2022. Limbian testified that he did not know why the city waited almost five years, but added the city “intentionally did not provide notice because it concluded it was not liable for Morar’s accident,” Adams wrote.

Limbian said during a deposition: “Two years passed with the belief that there was no action there or no plausible litigation.”

In his ruling for the insurance company, Adams wrote the city’s legal brief “often reads more like a press release, attempting to shift blame for its poor decisions and using inflammatory language rather than legal argument.”