Ohio Supreme Court Declares New Workers' Compensation Statute Constitutional

In what has been an ongoing battle at the Supreme Court of Ohio for the last decade or more, the Supreme Court of Ohio has found the newest version of the "intentional tort" section of the Workers' Compensation statute to be constitutional. In Kaminski v. Metal & Wire Products Co. the Court held that the General Assembly's most recent version of a law that gives greater protection to employers is, notwithstanding the holdings of previous panels of the Supreme Court of Ohio, constitutional. In Ohio, in order for an employee to sue an employer that causes an on-the-job injury to the employee, the employee, under the new law, must prove that the employer acted “with a deliberate intent to cause injury.” If the employee cannot prove that, then, regardless of the employer's negligence or the employee's injury, the employee is regulated to whatever he/she can get paid by the Bureau of Workers' Compensation. This ruling is the latest stage of an ongoing battle between forces who want to make it harder to sue employers for serious and reckless workplace injuries and those who believe that taking away an employee's right to sue for serious and reckless workplace injuries is a violation of the Ohio Constitutional "trial by jury" clause. The ongoing debate has to do with whether allowing more protection for employers will, in essence, indirectly encourage more injuries or death. We see this as just another stage of what will most likely be an endless battle between the forces behind business interests and the forces behind worker protection. Stay tuned - and be extra careful at work.

Must a Juror Be Able to Hear to Decide

The Ohio Supreme Court has recently decided that generally jurors' senses must be unimpaired to take in the specific evidence in order to be selected for that trial. Regardless of the fact that well intentioned society rules require that we respect and work with all types of persons with physical disabilities, if a physical impairment interferes with a juror's ability to take in the specific type of evidence that is presented in a particular trial, that juror must be excluded from that trial. In the case of State v. Speer,
the Supreme Court of Ohio stated that when the specific evidence in a trial requires that a juror have the senses necessary to take in that evidence, then the trial court must exclude any juror who has a physical impairment that interferes with taking in that evidence. In Speer, the jury had to hear and interpret 911 tapes, and one juror had a hearing disability, and the Supreme Court of Ohio had to reverse the conviction of the defendant because that juror could not properly hear the tapes.

Still more on arbitration provisions

We have previously reported to you about the potential dangers of "arbitration" provisions in what can generally be referred to as "consumer contracts" (i.e. contracts that involve the consuming general public like auto repairs, home-improvement, retail purchases, health care and nursing home services). Arbitration provisions have historically been found in many "commercial" contracts where the parties are mainly sophisticated business persons. However, in recent years, many companies which provide consumer services have placed arbitration provisions in their standard contracts in order to bar a consumer's right to bring a lawsuit for a breach of the contract - and even for personal injuries incurred by the negligence of those companies. These provisions essentially take the law out of the dispute and instead replace the law with the attitudes, opinion and sometime the biases of the arbitrators. Further, arbitrators charge huge fees for their "private" services while courts and judges provide all of their services for almost no charge at all other than a nominal filing fee.

Recent efforts in Congress have been aimed at barring arbitration provisions in all consumer contracts. For instance, if the negligence of an automaker or nursing home kills someone, any provision in contacts covering that relationship which mandate arbitration only for ANY dispute (including but not limited to personal injury claims) will be illegal. In fact, there is push in Congress to pass the Arbitration Fairness Act of 2009 this year. The act would ban mandatory arbitration in all consumer and employment disputes. Stay tuned for this development, and - again- review all of the contacts that you sign to see if there are any arbitration provisions buried in the small print.

Our Victory at the Supreme Court of Ohio

Last week we received word that we were completely victorious in our currently pending appeal with the Supreme Court of Ohio. In Beckett v. Warren, the Supreme Court of Ohio agreed with our claim that a person who has been injured by a dog attack can pursue and go to trial on BOTH a statutory claim for damages and a general negligence claim. This is important for dog attack victims because it permits them to obtain punitive damages against the dog owners if the injured party can prove that the dog in question had attacked a person prior to them. The Supreme Court sanctioned a new trial for the young girl in this case who had had her scalp torn from her head by a Rottweiler who had attacked another person just a few weeks earlier. Stay tuned for details on what happens when the case is set for a new trial at the trial court. Congrats to the family of this girl who have had to suffer for years with this terrible injury.

Cell Phone Search Warrant - a Must

In what could be one of the most functionally important criminal justice decisions of the year, the Ohio Supreme Court of Ohio today issued a search and seizure opinion on how and when police departments can search for cell phone data. In State v. Smith, the Court essentially held that the police must obtain a search warrant if they want to search the contents of a cell phone they have seized from an arrested person. This is somewhat of a refinement or distinction on the "search-incident-to-arrest" concept that allows the police to search a person or that person's car (and closed containers in that car) after that person has been arrested. The Court stated that given the "unique nature" of modern cell phones, they are more akin to a laptop computer (which clear case law says requires a search warrant) than closed containers found in a car (which clear case law says does not require a search warrant). This case will not prevent police from eventually searching a cell phone if they really want to, because all they will have to do is obtain a quick search warrant (very easy to do these days) and THEN search the phone. Further, remember that police can also obtain a call history by issuing a properly prepared subpoena or search warrant to the cell phone service provider (e.g. Verizon, AT&T, Sprint). Thought: If you are going to be involved in a criminal enterprise, delete all of that incriminating data on the phone in case you are arrested.

The Interest Rate in Contracts

The Ohio Supreme Court issued another business litigation decision this past week concerning the interest rate that a company or person must pay when they fail to pay on a contractual obligation. The case of Mayer v. Medancic concentrated on whether that interest rate can be a "simple" interest rate or an interest rate that allows for the "compounding" of interest. If it is a "simple" interest rate, then all the unpaid amount generates is interest only. If it is a "compounding" interest rate, then interest runs on the original unpaid amount - plus the previously unpaid and accrued interest. For example, if the unpaid amount is $10,000.00, and the contract between the parties just states that the interest rate is 8% (i.e. it does not specify whether or not it is a simple interest rate or a compounding interest charge), then the unpaid amount generates only $800.00 in interest per year. However, if the contract in this example specifically states that the interest rate on the unpaid amount is 8% to be compounded annually, then at the end of each year, the $800.00 interest incurred is added to the $10,000.00 principal, and 8% interest thereafter is earned on a now increased principal amount of $10,800.00. Obviously, a written agreement that calls for a compounding interest rate is going to generate a much larger overall amount of interest than a written agreement that either specifically calls for a simple interest rate or is silent on the matter. Suggestion, read your contacts and loan agreements very carefully on how interest is to be charged if a party defaults - especially of the compounding language calls for the interest to be compounded quarterly or even monthly.
It must also be pointed out that the interest rate statute has a number of specific provisions on what the statutory or limited interest rate may be for any specific written agreement. The amount of interest rate to be charged under the statute can very depending on what type of written document is involved. That topic is for another post and is not specifically discussed here.

The Spousal Privilege - Revisited

The Ohio Supreme Court has issued a new opinion involving a doctrine the law calls "spousal privilege." The old doctrine basically holds that a wife cannot testify against her husband in a court of law unless the husband permits her to do so (and, further, that a husband cannot testify against his wife in a court of law unless the wife permits him to do so) - if that testimony involves "confidential communications." For example, if a husband tells his wife in confidence that he committed a crime, the prosecutor cannot compel that wife to testify against the husband at trial about that confidential conversation. In this example, it is the husband who gets to determine whether to invoke the privilege - not the wife. In this most recent opinion (State v. Perez), the Supreme Court of Ohio held that while a wife may not testify against her husband in a criminal trial, any tape recordings of those conversations may be played for the the jury at trial. The Court held that this technical bypass of the privilege was, essentially, OK with them. After all, said the Court, the wife did not testify - the prosecution just played the tapes. Suggestion, check the room for bugs when planning a crime in the presence of your wife.