YOUNGSTOWN — Youngstown has paid $186,619 so far to an outside legal firm to handle a wrongful death lawsuit and unsuccessfully convince three different courts to permit the city to use a defense of immunity from liability after city lawyers failed to timely introduce it.

The Roetzel & Andress law firm in Akron also negotiated a $150,000 settlement Sept. 23, 2024, with the city’s former insurance company related to the wrongful death lawsuit in federal court after city attorneys failed to notify the company about the case’s existence for almost five years.

A federal judge in that case wrote in a decision against the city that its law department was “ill equipped” to handle the case and “was in over its head” before calling in outside legal counsel.

That $150,000 settlement doesn’t cover Roetzel & Andress’ fees and leaves the city solely responsible for any amount awarded in the wrongful death lawsuit plus additional attorney costs.

Almost half of Roetzel & Andress’ fees to date – $89,671 – are for the first three months of its services to the city after the firm was hired in 2022 to replace James Vivo, the city’s first assistant law director who was handling the case, according to information provided to The Vindicator as part of a public records request.

The city law department denied the newspaper’s request for the billing explanations, citing attorney-client privilege. Instead, the law department gave a list of the monthly payments to the law firm since it was hired for this specific case.

Andy Resnick, the city’s spokesman, said: “The decisions to date have involved complex procedural issues that do not affect the merits of the case. The city law department, in coordination with its outside counsel, is prepared to defend the city and prove that its employees were not negligently involved in Mr. (Thomas) Morar’s unfortunate injuries.”

The wrongful death lawsuit was filed June 14, 2019, by Cheryl Durig of Newton Falls, the executor of Morar’s estate. 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.

The Ohio Supreme Court ruled Oct. 16 in a 7-0 decision that Youngstown failed to timely introduce a defense of immunity from liability in the lawsuit that could cost the city millions of dollars.

Youngstown contended that its motion for “statutory immunity,” which came shortly before the wrongful death lawsuit was to proceed in Mahoning County Common Pleas Court, was permissible.

Statutory immunity is a common defense used by governments in Ohio that gives them immunity from liability as a defense in many court cases in which it is performing a government or proprietary function.

While statutory immunity is a well-established defense in lawsuits, the Ohio Rules of Civil Procedure require that it be asserted in a timely fashion, and that didn’t happen in this case, the Supreme Court ruled.

“The city had an obligation to raise the affirmative defense of political subdivision immunity in a prompt manner to minimize the impact to the estate,” the decision read.

The decision added that the court “has long held that statutory immunity, including political subdivision immunity, is an affirmative defense and is waived if not raised in a timely fashion.”

The case returns to common pleas court and will proceed without the city being able to raise a statutory immunity defense.

The Supreme Court on July 24, 2024, accepted the city’s appeal of a 2-1 decision on Dec. 7, 2023, by the 7th District Court of Appeals that concluded Thomas J. Pokorny, a visiting judge, was correct when he ruled April 28, 2022, that the city couldn’t raise statutory immunity as a defense. Pokorny ruled the defense was untimely as it was filed two years and nine months after the city was sued in the wrongful death claim, according to his decision and the appeals court.

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

The $5 million offer was early in the case and Durig will seek much more, Ilan Wexler, one of her attorneys, said after the Supreme Court decision.

The case was referred back to common pleas by the Ohio Supreme Court.

The decision could put the city in financial jeopardy with it unable to use statutory immunity as a defense. The city doesn’t have insurance coverage for any financial ruling against it or for a settlement because of the separate legal matter with its former insurance company.

CASE HISTORY

Durig sued Youngstown in common pleas court for economic damages, pain and suffering, and wrongful death arising out of the accident. Morar was on a ventilator from the time of the accident until his death.

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.

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 judgement. 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, Vivo was replaced by the Roetzel & Andress law firm.

Pokorny’s decision was appealed May 6, 2022, by the city and subsequently rejected by the 7th District. The appeals court also rejected the city’s reconsideration of its decision on Feb. 29, 2024. The city appealed April 15, 2024, to the Supreme Court, which accepted it July 24, 2024.

The Supreme Court decision stated it found “no abuse of discretion by the trial court in denying the city’s motion for leave to amend its answer.”

The city contended Pokorny failed to properly give it credit for periods of inaction by the assignment of a visiting judge and interruptions related to the COVID-19 pandemic.

The Supreme Court decision states: “Even if those periods are discounted, the record still shows that a substantial part of the delay was attributable to the city. Moreover, none of the events that delayed the proceedings prevented the city from asserting a defense of political subdivision immunity or moving more promptly to amend its answer.”

‘EXTREME INCOMPETENCE’

City officials accepted the $150,000 settlement Sept. 23, 2024, from U.S. Specialty Insurance Co. (USSIC), its former insurance company, which sued Youngstown contending it wasn’t responsible for any financial claims in the Durig case because it wasn’t notified of its existence for almost five years.

U.S. District Court Judge John R. Adams ruled Sept. 14, 2023, that USSIC was not responsible for coverage because of the city’s “significant missteps and mistakes that cannot be undone,” as well as the city’s “extreme incompetence.”

Adams was critical of the city’s law department, specifically mentioning Jeff Limbian, who was law director at the time.

“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 ruling. “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 also wrote: “Upon review of (Limbian’s) 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.”

The city appealed the decision to the U.S. Court of Appeals for the Sixth District on Oct. 13, 2023, and settled for the $150,000 almost a year later.

Any amount awarded in the wrongful death lawsuit above that $150,000 settlement amount would be the sole responsibility of the city.