By: Tom Diehl (In 2008)
In the last edition of the Co-Counsel Reporter, we discussed the pitfalls occasioned by the recent modifications and abrogation of joint and several liability as set forth in SB 120. Specifically, if a defendant can convince the trier of fact that a different defendant has some liability for the injuries sustained, the defendants will be liable for the overall damages only according to their percentage of liability. This can have disastrous consequences if the “other defendant” is not a party to the suit or is judgment proof.To help minimize the potential for disastrous consequences, plaintiff's counsel should consider these strategies: * File discovery early requesting the defendant to identify and specify any other defendants allegedly having liability for injuries caused. Consider, submitting requests for admissions demanding defendant to deny the existence of other liable defendants; * In the initial complaint, bring claims against all potential liable party defendants;* When partially settling with the joint tortfeasor, release only that tortfeasor; * Consider filing a challenge to the constitutionality of SB120 -- send a copy of the challenge to the Ohio Attorney General. Grounds for potential constitutional challenge include an argument that SB 120 violates Article II Section 15 (One Subject Rule) or Article IV Section 5 (Separation of Powers). At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988. We regularly work with counsel in ethical fee sharing arrangements. Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum. http://www.ThomasJDiehl.com
By: Tom Diehl (in 2008)
Representing the injured party in a personal injury claim is a difficult juggling act for the practitioner. The experienced litigator is well aware of the traps involved in even the simplest personal injury case, including issues like subrogation, medical liens and tort reform. The practice is fraught with land mines.
It just got a lot tougher. On December 20, 2006, the Ohio Supreme Court rendered a decision dealing with the collateral source rule. Robinson v. Bates (2006), 112 Ohio St. 3d 17. This decision is being used by insurance companies to try to decrease jury awards and settlements.
Pryor v. Webber (1970), 23 Ohio State 2d 104 was the leading case invoking the collateral source rule. The rule provides, basically, that evidence of a plaintiff’s receipt of benefits from a source other than the wrongdoer cannot be presented to a jury. Thus, if the plaintiff had his medical bills paid by health insurance, or med pay, or even by his kind uncle, the fact that those payments occurred could not be presented to a jury.
Robinson v. Bates affects the collateral source rule. In Robinson, one of Plaintiff’s medical bills was paid in part by Plaintiff’s health insurance and the balance was “written off” by the provider, leaving the balance as fully paid. The Plaintiff tried to introduce the full bill. The Defendant argued that only the “paid amount” should be presented to the jury. The Ohio Supreme Court, breaking with years of contra authority, declared that the original bill and the evidence of the write off could be presented to the jury. Expect insurance companies to seize upon this decision to try to further whittle settlements and jury awards.
But all is not lost. The practitioner is not without options and argument to counterattack Robinson. We intend to raise several arguments and use different tactics in these cases, including:
1. Making the defense prove the existence of the write off. This will be more difficult for the defense than might be expected as it will require testimony from the medical practitioners and, potentially, the health insurance carriers.
2. Reminding the trial court via Motions in Limine that the write off amount does not represent full payments as many health insurance plans utilize “hold backs” and “bonus payments.”
3. Reminding the Court that Robinson does not modify the collateral source rule. It merely changes what is and is not a collateral source.
At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988. We regularly work with counsel in ethical fee sharing arrangements. Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum.