In a case briefed and argued by SMB&P partner Scott Sollmann, the Ohio Supreme Court in State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368, ruled that a substitute custodian whose schedule is irregular with respect to days of service, hours worked, and school-building assignment is not considered a “regular nonteaching school employee” under an Ohio law.
SMBP’s medical malpractice attorneys recently settled a lawsuit filed on behalf the estate of a loving husband, father of two and grandfather of five, who died in 2015, following complications resulting from the placement of a feeding tube. Tragically, what was expected to be a short, uneventful procedure resulted in perforation of his intestines causing peritonitis which ultimately led to sepsis. The deceased died the following day.
The deceased’s wife, who was bedside to witness her husband’s suffering, called for a doctor to examine her husband and discover the cause of his unrelenting pain. Despite her efforts, the calls went unheeded. The mediation of this case allowed the deceased’s widow the opportunity to speak with the representatives of the hospital and express her hope that other patients might have better outcomes, based on what was learned from this litigation. The settlement reached with the hospital will fund the college educations of the deceased’s grandchildren.
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.
Following an alleged incident, the injured Jones Act seaman approached his employer requesting monies in addition to the daily maintenance rate he was receiving as a matter of right. His employer agreed and the parties entered a post-incident wage advance agreement. Like many agreements of this type, the wage advance agreement contained a forum selection clause identifying a single federal district court in which suit relating to the underlying incident could be filed. Contrary to the mandatory forum selection provision, however, the seaman filed suit in a nearby state court. The SMBP maritime group filed a Motion to Dismiss for Improper Venue based on the forum selection clause contained in the wage advance agreement. The state court granted the Motion, finding the forum selection clause was valid and enforceable, requiring transfer of the state court action to the agreed upon federal district court.
A great precedent for use in future enforcement actions!
Super Lawyers has again recognized seven SMBP Law attorneys for 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!
SMB&P has been rated a Cincinnati Metro area “Best Law Firm” by U.S. News & World Report in the areas of Commercial Litigation, First Amendment Litigation, Personal Injury Litigation, and Medical Malpractice. The Tier 2 ranking is based on a rigorous evaluation process that includes client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of a formal submission process.
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.
On April 18, 2013, the M/V Dale Heller attempted to navigate its fourteen-barge tow past the Marseilles Dam on the Illinois River during a high-water event. Other maritime vessels agreed to assist the M/V Dale Heller in this navigation attempt, including the M/V Loyd Murphy, operated by Inland Marine Service, Inc. and owned by American Commercial Barge Lines, LLC. While attempting the transit, the M/V Dale Heller’s tow broke apart and seven of its barges either allided with the dam or sank upriver from it. Subsequent to this incident, the river waters overtopped the bank and the City of Marseilles, Illinois flooded. Following the casualty, SMBP filed a limitation action on behalf of Inland Marine and ACBL. More than 200 claims were filed against them, including claims by the City of Marseilles, the Marseilles Elementary School District, and numerous residents and property owners in Marseilles. The USA also filed claim for damages to the Dam and related structures, estimated to exceed $30 Million.
The SMBP Maritime Group centered its defense on the application of the dominant mind doctrine, a theory in general maritime law holding that “when a helper tug merely furnishes power in obedience to orders from the primary tug without any negligence on its part, it should be exonerated from all liability for damages to the tow.” SMBP was able to secure summary judgment on behalf of ACBL as the owner of the M/V Loyd Murphy. The Court also found, as a matter of law, that the Ingram vessel—the M/V Dale Heller—was in fact the dominant mind. These pre-trial victories, together with the compelling opinions advanced by its team of specialized expert witnesses, allowed the SMBP Maritime Group to secure a favorable “cost of defense” settlement on behalf of its client on all remaining claims, avoiding the four-week Phase 1 trial scheduled to begin on September 21, 2016, as well as subsequent trials on the issues of causation and damages. A well fought, hard earned victory!
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!
Seven SMBP Law attorneys were recognized as 2016 Super Lawyers:
Lawrence E. Barbiere (2009-2011, 2013, 2016)
Brian E. Hurley (2004-2016)
John W. Hust (2009-2016)
John M. Milligan – Rising Star (2015-2016)
Todd M. Powers (2013-2016)
Scott A. Sollmann – Rising Star (2012-2016)
Megan Ahrens Sullivan – Rising Star (2009, 2012, 2014-2016)
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. The final published list represents no more than five percent of the lawyers in the state.
Each of the SMBP Law attorneys are repeat recipients of the Super Lawyers recognition. Congratulations!
SMBP Law | 5300 Socialville-Foster Road Suite 200 | Mason, Ohio 45040 | (513) 583-4200
