Tag Archives: thomas

Run Over Our Citizens, But Don’t Mess With Our Soybeans

By:  Thomas J. Diehl (In 2008) 

   With the enactment of Senate Bill 80, damages in many tort actions 
are capped.  The jury’s determination of rightful compensation to a 
Plaintiff will be disregarded in many circumstances.  In any claim for 
damages for injury or loss to person or property, including product 
liability claims, a plaintiff who has suffered non-catastrophic or 
noneconomic damages is limited to the greater of Two Hundred Fifty 
Thousand Dollars ($250,000) or three times the economic loss,but not 
to exceed Three Hundred Fifty Thousand Dollars ($350,000). 
 
               EXAMPLE NO. 1:    Plaintiff is injured in a non-catastrophic 
motorcycle accident and incurs medical bills of Ten Thousand Dollars 
($10,000) and a wage loss of Five Thousand Dollars ($5,000), for total
special damages of Fifteen Thousand Dollars ($15,000).  The most he can 
receive for his non-economic loss (i.e. pain and suffering) is Two Hundred 
Fifty Thousand Dollars ($250,000).  3 x $15,000 = $45,000.  Plaintiff is
entitled to three times economic loss or Two Hundred Fifty Thousand Dollars
($250,000), whichever is greater.
 
               EXAMPLE NO. 2:    Plaintiff is injured in a non-catastrophic
loss and incurs medical bills of One Hundred Thousand Dollars ($100,000)
and wage loss of Twenty-Five Thousand Dollars ($25,000), for a total loss
of One Hundred Twenty-Five Thousand Dollars ($125,000).  If a jury awards
pain and suffering of Five Hundred Thousand Dollars ($500,000), that 
portion of the jury verdict will be reduced to Three Hundred Fifty 
Thousand Dollars ($350,000), because of the cap.  
 
   It seems odd that the Ohio legislature would protect 
drunk and reckless drivers at the expense of truly injured persons.  
Although the Ohio Legislature limits the recovery available to a 
plaintiff seriously injured in a car accident caused by a drunk
driver, it has made certain that producers of corn, wheat and 
soybeans injured by someone speaking badly of their products
are fully compensated.  Ohio Rev. Code §2307.81 subjects anyone
who falsely disparages an Ohio agricultural or aquacultural 
food product, to “in addition to any award of punitive damages, 
damages in an amount up to three times the amount of compensatory 
damages.”
 
    Thus, the Ohio Legislature has chosen to place a cap on the
damages a drunk driver will pay, while it subjects those that may 
dare to disparage a soybean to treble damages.

http://www.thomasjdiehl.com

 

Give Yourself A Chance

By: Tom Diehl  

Issue #32 of The Personal Injury Co-Counsel Reporter 

   Recent pronouncements from Ohio courts pertaining to Ohio Civil Rule 15(C) should make it clear to the plaintiff’s injury practitioner that amending a complaint after the statute of limitations has expired can be fraught with pitfalls. 

   Generally speaking, a claim for bodily injuries from an automobile accident must be filed within two years from the date of the accident.  However, if there is any question as to the identity of the responsible defendant, it is not advisable to wait the full two years before filing.  Recent court pronouncements on “relation back” make it clear that the plaintiff’s injury practitioner may not be able to successfully amend a complaint after the two year deadline has expired.

   Ohio Civil Rule 15(C) provides that if plaintiff files an amended complaint, the amendment “relates back” to the date of the original pleading, if the amendment contains a claim or defense asserted in the original pleading and arose out of the conduct, transaction or occurrence set forth in the original pleading.  Thus, in certain circumstances, plaintiff’s counsel can file an amended complaint after the two-year statute of limitation has expired, and successfully argue that under Civil Rule 15(C), the date of the filing of the amended complaint “relates back” to the date the original complaint was filed.  But, there is a distinct danger in this approach.  If discovery reveals that the wrong defendant was named in the original complaint or an additional defendant needs to be added, the filing of amended complaint to correct this oversight will, most likely, not “relate back” under Civil Rule 15(C) and, therefore, the amended claim will be barred by the statute of limitations.  In Kooyman v. Staffco Construction, Inc. (2010), 189 Ohio App. 3d 48, the plaintiff was killed when operating a motorcycle in a public park.  Plaintiff filed suit against the Metropolitan Park District within the filing deadline for instituting an action.  The discovery process revealed that the proper defendant should be a municipality.  The plaintiff filed an amended complaint, naming the municipality as a defendant.  The amended complaint was filed after the statute of limitations had expired, but plaintiff argued that the case should not be dismissed under a statute of limitations defense, because the amended complaint should relate back under Civil Rule 15(C).  The Kooyman court found this argument to be unpersuasive, and held that 15(C) would not salvage the claim for two reasons.  First, the court noted that the Relation Back Doctrine under Rule 15(C) only applies to fixing clerical mistakes such as the misspelling of a defendant’s name.    Secondly, Rule 15(C) does not allow a plaintiff to add an additional party.  It merely allows the plaintiff to substitute a party. 

   The lesson . . . file suit well before the two year deadline to allow sufficient time to conduct discovery and, if necessary, add defendants or change defendants before the statute of limitations runs.

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 has been selected as a Fellow of the Litigation Counsel of America and granted membership in the Million Dollar Advocates Forum.

http://www.ThomasJDiehl.com

 

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