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By DAVID SKOLNICK
Staff writer
YOUNGSTOWN -- Youngstown has a $2.5 million settlement in place to be paid over six years to the executor of an estate in a wrongful death lawsuit with the city having to cover the entire amount and not through insurance.
City council has to sign off on the settlement with the legislation in front of its members Wednesday and then it has to be finalized by the board of control.
If the case had gone to trial, a decision against the city could have put it in serious financial jeopardy with it unable to use statutory immunity as a defense. The city also doesn't have insurance coverage for any financial ruling against it or for a settlement because of a separate legal matter with its former insurance company.
The settlement is one of the largest -- if not the largest -- in at least decades.
The settlement includes the city admitting no liability.
The wrongful death lawsuit was filed June 14, 2019, by Cheryl Durig of Newton Falls, the executor of Thomas Morar's estate. The lawsuit alleges 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.
Ilan Wexler, one of Durig's attorneys, said: "It was a compromise given the city's capability of payment and the risk of trial, both parties and the amount of time -- it's been nine years. The family was happy to get it finished."
The estate will get $541,666.67 from the city in 2027 and then five annual payments, starting in 2028, of $391,666.67. The money will come from the city's general fund.
The settlement was ironed out with the assistance of Anthony Cornicelli, a Trumbull County Common Pleas Court magistrate who served as mediator during an Aug. 6 discussion that lasted more than eight hours.
Wexler, of the Austintown law firm of Anzellotti, Sperling, Pazol & Small, said: "Mediation is successful when both sides are unhappy. The city paid more than they wanted and the family wanted more money. We wanted more, but the reason the payments are over the course of time is because the court could have allowed payments to us over 10 years if the city showed it couldn't pay it. We compromised at six."
City Law Director Adam Buente said: "While we continue to deny any liability, a plaintiff's verdict in this case could have exceeded $10 million. The administration was unwilling to risk a trial and catastrophic impact on the city's overall finances. The settlement amount, combined with the ability to pay it over six years, allows us to accept this outcome and finally put this case behind the city."
The city had unsuccessfully sought to include a motion in the case for "statutory immunity," 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.
The Ohio Supreme Court in a 7-0 decision Oct. 16 ruled Youngstown failed to timely introduce the 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.
The case was sent back to common pleas court with visiting Judge W. Wyatt McKay, a retired Trumbull County Common Pleas Court judge, assigned Nov. 22 by Ohio Supreme Court Chief Justice Sharon L. Kennedy to oversee the matter.
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 was seeking much more in the case, Ilan Wexler, an attorney representing Durig, said after the Supreme Court decision.
Wexler said Thursday that a compromise was reached during the Aug. 6 mediation.
LAWSUIT
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 allegedly 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, James Vivo, the city's first assistant law director who was handling the case, was replaced by attorneys with the Roetzel & Andress law firm in Akron as outside legal counsel.
The city has paid $186,619 in legal fees to Roetzel & Andress for this case as of November. The amount paid to the firm since then isn't known.
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."
City officials accepted a $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 specifically mentioned Jeff Limbian, the city's former law director, in his scathing decision.
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.
The city has already paid more than that to Roetzel & Andress dating back to November so the settlement costs are the city's sole responsibility.