On July 16, 2016, the M/V Charleston was traveling upriver on the Kanawha River near St. Albans, West Virginia when an approaching 30-foot pleasure craft, traveling at a high rate of speed, made a sudden and unforeseen course change, steering directly into the bow of the M/V Charleston’s tow.  The pleasure craft collided with one or more barges at the head of the tow, with the side of the towing vessel, and ultimately crashed into a nearby marina.  Investigation revealed the driver of the pleasure craft suffered severe injuries as a result of the collision.  In addition, several other pleasure craft docked at the marina sustained property damage.  SMBP subsequently filed a Complaint for Exoneration and/or Limitation of Liability in the U.S. District Court for the Southern District of West Virginia on behalf of Amherst Madison, owner of the M/V Charleston.  SMBP secured a Restraining Order and Order Ad Interim, which established a claim deadline of January 9, 2017.  After providing notice to all potential claimants, no claims were filed.  As a result, SMBP filed a Motion for Default Judgment, which was granted by the Court.  Less than one year following the casualty, Amherst Madison has the peace of mind of knowing that no claims will result from the collision.

Super Lawyers has again recognized seven SMBP Law attorneys for 2017:

• Lawrence E. Barbiere (2009-2011, 2013, 2016-2017)
• Katherine L. Barbiere – Rising Star (2017)
• Brian E. Hurley (2004-2017)
• John W. Hust (2009-2017)
• John M. Milligan – Rising Star (2015-2017)
• Todd M. Powers (2013-2017)
• Megan Ahrens Sullivan – Rising Star (2009, 2012, 2014-2017)

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.   The selection process includes independent research, peer nominations, and peer evaluations.  Selections are made on an annual, state-by-state basis.  Only 2.5% of attorneys in Ohio receive this distinction.

Congratulations!

A favorable settlement has been reached in a lawsuit filed by the estate of a 51-year old father of three, who was killed while idling in stopped construction on southbound I-71.  On April 28, 2015, the deceased was traveling southbound in Warren County when the vehicle he was driving was rear-ended by a semi-tractor trailer operated by Home Run Inc.  The driver was obviously distracted and did not brake until one second prior to the collision.  Although Home Run initially denied its existence, SMBP Attorneys later learned a dash camera recorded the minutes preceding the accident.  Following deposition testimony from the defendant truck driver regarding the existence of the camera, Home Run admitted a video camera recorded the crash; Home Run denied any access to the video recording, claiming the camera was never recovered from the scene of the accident.   Further testimony revealed, however, the fact that Home Run’s safety director and lawyer were told of the camera’s existence on the day of the accident. In addition, the driver’s cell phone’s texting and call histories were deleted prior to the cell phone being produced for inspection by SMBP attorneys.  These discovery abuses resulted in SMBP Attorneys pursuing a claim for spoliation of evidence.

After several months of litigation, which included filing two separate motions to compel evidence and to sanction defendant for its discovery abuses, SMBP Partner Todd Powers and Associate Katie Barbiere were able to successfully negotiate a $3.2 Million settlement with the trucking company.  The settlement will benefit the deceased’s three surviving children, his father, and grandchildren.

Following the United States Supreme Court’s decision in Atlantic Sounding v. Townsend, 557 U.S. 404 (2009), there has been a trend in the maritime plaintiff’s bar to include claims for spousal loss of consortium in Jones Act cases. Fortunately, a consensus has begun to develop among the Circuit prohibiting these claims as impermissible non-pecuniary relief. However, not all jurisdictions have affirmatively addressed whether loss of consortium claims by a seaman’s spouse are legally viable. In particular, no West Virginia state or Federal court had definitely ruled on the issue until now. On January 27, 2016, the SMBP Maritime Group secured an Order from the Mason County, West Virginia Circuit Court dismissing the loss of consortium claim asserted by a seaman’s spouse in conjunction with her Jones Act and general maritime claims. This Order will prohibit such claims from being asserted in this venue in the future and will be a useful tool in defending against such claims in other jurisdictions in the future. Congrats to the Maritime Group and their client!

SMBP government liability attorney Larry Barbiere successfully represented a former township assistant development administrator in a case where it was alleged the employee and the township violated the Ohio Public Records Act. The suit alleged the township and the employee unlawfully destroyed public records under R.C. 149.351 and failed to respond to a public records request within a reasonable time under R.C. 149.43. On August 27, 2012, the Ohio Twelfth District Court of Appeals handed down its decision in State ex rel. Doe v. Tetrault, CA2011-10-070, in which it, among other things, affirmed the trial court’s decision that certain notes created by a government employee on scrap paper and on a township owned laptop were not “public records” under the Act. View a copy of the decision.