The Ohio Supreme Court has agreed to hear Youngstown’s appeal of lower court cases that determined the city wasn’t immune from a wrongful death lawsuit with claims as high as $5 million.

The state’s high court agreed in a 5-2 vote to accept Youngstown’s appeal with Justice Pat DeWine and Jennifer Brunner denying the request.

In a 2-1 vote, the 7th District Court of Appeals rejected the city’s appeal — and then denied the city’s request for reconsideration Feb. 29 — in a wrongful death lawsuit filed by Cheryl Durig of Newton Falls.

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 city’s motion 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.”

In an April 15 request for the Supreme Court to hear the appeal, Emily Anglewicz, an attorney with Akron’s Roetzel & Andress law firm representing the city in this case, wrote two appellate courts “have concluded that an immunity defense is preserved under such circumstances,” and “the court’s consideration of inconsistent rulings among the districts is always important.”

She added: “It is especially critical for the court to clarify the issues involved in this case given that they center on the defense of political subdivision immunity and will have a profound impact on not only municipalities and other governmental agencies statewide, but also Ohio citizens and taxpayers.”

Anglewicz wrote the case “involves an issue that affects all civil litigants – the ability of parties to freely amend pleadings as justice requires.” The appeals court’s decision “improperly held that there was ‘undue delay’ by the city in seeking to amend.”

In a May 8 response opposing jurisdiction, Durig’s attorneys wrote the city’s undue delay “argument is silent regarding the only ‘delay’ that matters: the city’s two-and-a-half-year delay before seeking leave to amend its answer to assert the immunity defense,” and during that delay “nothing had prevented the city from seeking leave to amend its answer.”

Durig is represented by attorneys Ilan Wexler and David M. Moore – both of Anzellotti, Sperling, Pazol & Small in Austintown – and Paul Giorgianni of Giorgianni Law in Columbus.

They wrote the Supreme Court lacks jurisdiction because the city failed to file a notice of appeal in a timely basis, which renders the city’s waiver of immunity “unreviewable on appeal.”

They added: “The facts of this case do not present even a colorable argument that the trial court abused its discretion by refusing leave to amend the answer. The court” should “rule that the trial court did not abuse its discretion by overruling the city’s March 18, 2022, motion for leave to amend the answer.”

Also related to this case, a federal judge ruled Sept. 14 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. The city appealed that decision to the U.S. Court of Appeals for the 6th Circuit, which is still hearing the case.

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 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 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 Roetzel & Andress attorneys as outside legal counsel.

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

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. Cuyahoga won in an 8th District Court of Appeals case despite not initially claiming immunity.

Anglewicz 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 its decision, the court 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 court also wrote: “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.”

INSURANCE LAWSUIT

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 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 2.5 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 filed an appeal Oct. 13.

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