YOUNGSTOWN — A court rejected an appeal by the city to overturn a judge’s decision not permitting it to claim it was immune from a wrongful death lawsuit with claims as high as $5 million.

It’s the latest setback for the city in this matter.

A federal judge ruled in September that U.S. Specialty Insurance Co., that insured Youngstown, wasn’t responsible for any financial claims in this wrongful death suit filed by Cheryl Durig of Newton Falls because of the city’s “extreme incompetence,” including failing to report the incident to the company for almost five years.

In a 2-1 decision, Ohio’s 7th District Court of Appeals ruled against the city and concluded that Thomas J. Pokorny, a visiting judge in Mahoning County Common Pleas Court, made the right decision April 28, 2022, when he didn’t permit Youngstown to raise the defense that it has “statutory immunity” to litigation because it’s a political subdivision. Pokorny rejected the motion by the city to amend its answer with that defense ruling it wasn’t timely in the wrongful death suit.

The appeals court agreed stating: “The city waited two years and nine months to file its motion for leave to amend. By that time, the case” was “set for trial.”

Lou D’Apolito, the city’s interim law director, said he’s recommending to Mayor Jamael Tito Brown that the city appeal the case to the Ohio Supreme Court.

“We have a legal defense and it’s under the law and it didn’t prejudice the other side,” D’Apolito said.

The city has 45 days from the appeals court’s decision to file with the state’s highest court. The Supreme Court would have to agree to hear the case or it would go back to Pokorny.

Ilan Wexler, Durig’s attorney, said: “The city is wasting a ton of money. They hired some very expensive attorneys for this case and the federal case. Ultimately, I don’t think the city has a winning case as this court has told them.”

Wexler added: “It’s wasting attorney fees rather than getting the case resolved. We tried to settle. There was a mediation at one point and it wasn’t resolved and they went this route.”

The two sides had an unsuccessful Feb. 14, 2022, mediation. Before that, Durig demanded a $5 million payment, which the city opposed.

CASE DETAILS

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.

Durig, the executor of Morar’s estate, sued Youngstown on June 14, 2019, in common pleas court for economic damages, pain and suffering, and wrongful death arising out of the accident.

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.

“It’s a serious case,” Wexler said. “A guy died; 21 and a half months on a ventilator and never got out of any facility after this incident. Medically, he went downhill and subsequently died.”

The Durig 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 many 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 and for the first time raised the immunity defense.

Pokorny held a Jan. 12, 2022, hearing on motions and granted the city time to file a response to Durig’s motion for partial summary judge. But he didn’t permit the city to file its own summary judgment motion and said the city should have raised the immunity defense well before then.

The city waited until March 18, 2022, to file a motion to amend its answer, which Pokorny rejected April 28, 2022, as being untimely. On that date, James Vivo, the city’s first assistant law director who was handling the case, was replaced by attorneys from Roetzel & Andress of Akron as outside legal counsel.

Pokorny’s decision was appealed May 6, 2022, by the city.

D’Apolito said among the cases cited by city attorneys to the court of appeals that had particular merit was one from 1992 in which a Cuyahoga County prisoner sued that county for injuries he suffered while eating in the county jail’s cafeteria. The county won in an 8th District Court of Appeals case despite not initially claiming immunity.

But the 7th District decision, written by Judge Mark A. Hanni, pointed to three other similar cases that reached different conclusions.

“While there may be some limited case law in support of the city’s position, there is also case law, including from the Ohio Supreme Court, to support the trial court’s decision,” Hanni’s decision reads.

Hanni was joined by Judge David D’Apolito in the majority decision with Judge Cheryl Waite dissenting.

In her dissent, Waite wrote there were several reasons why Pokorny erred and there was “no undue delay in this case.” She wrote that about 15 months of the delay in the case was caused by the court as it took that long to appoint Pokorny after the initial judge recused himself and additional delays caused by the COVID-19 pandemic.

U.S. District Court Judge John R. Adams ruled Sept. 14 in favor of U.S. Specialty Insurance Co. (USSIC), which was Youngstown’s insurance company from Dec. 31, 2016, to Dec. 31, 2018, that it was not responsible for any financial claims in the wrongful death suit.

In his decision, Adams pointed to several legal errors by the city’s law department, specifically mentioning Jeff Limbian, who resigned Nov. 14 as law director.

A letter notifying USSIC of the lawsuit wasn’t sent until April 7, 2022 — more than two and a half years after the complaint was filed — by Roetzel & Andress attorneys.

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.”

Adams wrote the city admitted “it was in over its head,” which “resulted in significant missteps and mistakes that cannot be undone.”

The city has appealed that case to the U.S. Court of Appeals for the Sixth District.