YOUNGSTOWN — The 7th District Court of Appeals rejected Youngstown’s request to reconsider its previous decision to not overturn a judge’s ruling that the city is immune from a wrongful death lawsuit with claims as high as $5 million.

The city must now decide whether to file an appeal with the Ohio Supreme Court and hope it accepts the case or have it go back to a visiting judge in Mahoning County Common Pleas Court who ruled against its immunity defense.

Also related to this, a federal judge ruled in September that U.S. Specialty Insurance Co., which was Youngstown’s insurance company at the time of the death in this case, wasn’t responsible for any financial claims in the wrongful death lawsuit 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. The city has appealed that decision to the U.S. Court of Appeals for the Sixth Circuit.

In rejecting the city’s appeal of the Durig decision, Ohio’s 7th District on Thursday wrote in a 2-1 decision: “The city disagrees with our finding on this issue. It has not raised an obvious error nor has it raised an issue for our consideration that was either not at all or was not fully considered by us when it should have been.”

It added: “We have already addressed the city’s arguments. The city merely disagrees with the conclusions reached and the logic used by this court. For the reasons stated, the application for reconsideration is denied.”

Adam Buente, the city’s deputy law director, said: “The city is evaluating its option to appeal the decision to the Ohio Supreme Court, which it will assess contemporaneous with the pending litigation in the federal 6th Circuit Court of Appeals.”

In a 2-1 decision Dec. 7, the appeals court 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.

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.”

Ilan Wexler, Durig’s attorney, said Friday he doubted the state Supreme Court would accept the case if the city appealed.

Because the city isn’t currently insured for this claim, Wexler said: “I’m guessing they’re stringing this along to see if they get insurance coverage and I don’t see them getting that coverage. It will go back to the visiting judge and be set for trial or they’ll settle.”

Wexler said: “The family would like to see it resolved, but at the right figure. The family wants to be compensated for the loss.”

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

CASE HISTORY

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.

Wexler said Morar “was tethered to a (ventilator) machine and suffered for 21 and a half months” before he died.

The Durig lawsuit states the city was aware that the tree that fell on Morar was in poor condition and despite being on city property, Youngstown 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 summary 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 judgment. 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.

In the appeal, the city cited two cases including 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.

Emily Anglewicz of Roetzel & Andress wrote in a Jan. 5 filing that Durig’s attorney “erroneously claims that the only inquiry before this court was whether the trial court abused its discretion in denying the city leave to amend its answer to assert the defense. Appellee’s argument misses the mark because if the court were to follow the (two cases), there would be no need for the city to amend its answer at all – and correspondingly, no need to necessarily reach the question of whether the trial court abused its discretion by denying the motion for leave to amend.”

The appeals court disagreed with that argument.

In Thursday’s decision by the appeals court, the majority wrote: “But we did consider those cases and instead chose to follow two other cases” which “both found that pleading the defense of failure to state a claim was not sufficient to impliedly raise the defense of immunity.”

The initial 7th District’s Dec. 7 decision, written by Judge Mark A. Hanni, also pointed to those two other 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 read.

Hanni was joined by then-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.

Waite wrote that the majority ignored the immunity law and misapplied a case it cited.

With D’Apolito no longer a judge, visiting Judge William A. Klatt, replaced him and agreed with Hanni in Thursday’s decision to reject the city’s request for reconsideration.

INSURANCE LAWSUIT

U.S. District Court Judge John R. Adams ruled Sept. 14 in favor of U.S. Specialty Insurance Co., which was Youngstown’s insurance company from Dec. 31, 2016, to Dec. 31, 2018, that it was not responsible for any financial claims in this 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.” It filed the federal lawsuit against the city the same day.

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

The judge added: “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.

The city appealed that case to the U.S. Court of Appeals for the 6th District. No decision has been made as of Friday.

Have an interesting story? Contact David Skolnick by email at dskolnick@vindy.com. Follow him on X, formerly Twitter, @dskolnick.