September 2002 |
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In This Issue
Kegler Brown Attorneys in the NewsTom Hill was successful in obtaining a writ of mandamus from The Ohio Supreme Court on behalf of a consortium of car rental companies that had formed to oppose a car rental tax ordinance passed by the City of Columbus. Tom had filed a complaint with the Ohio Supreme Court seeking a writ of mandamus to require the Columbus City Clerk to submit the opposition's referendum petitions to the Columbus City Council so that the City Council can either repeal the ordinance or put it on the ballot. The City Clerk had refused to do so, claiming that the petitions were invalid. The Ohio Supreme Court granted the writ of mandamus declaring the petitions valid and ordered the City Clerk to submit the petitions to City Council. City Council is now required either to repeal the ordinance or put it on the ballot. If they put it on the ballot, they may not commence collecting the tax unless and until the voters approve the ordinance. Tom Metzger and Chris Weber were successful in obtaining the dismissal of all claims in an employment-related action in federal court on behalf of an employer. The complaint by the former employee against Kegler Brown's client included allegations of age discrimination, breach of implied contract, wrongful discharge in violation of public policy, and infliction of emotional distress. After completing discovery in the case, Tom and Chris submitted a motion for summary judgment on behalf of the employer. Before the matter went to trial, the federal court in Dayton granted summary judgment on all claims. Paul Hess and John Deal assisted with closure of a $25 million bond financing by the State of Ohio, Office of the Treasurer to fund parks and recreation facilities for the Department of Natural Resources. Kegler Brown served as counsel to the underwriter. Tom Metzger was successful in having all claims in a failure-to-promote action in federal court dismissed on behalf of an employer. The complaint by the employee primarily concerned an allegation that she was denied a promotion based upon her gender. After discovery was completed, Tom submitted a motion for summary judgment to the federal court in Columbus on behalf of the employer. The court recently granted the summary judgment motion, and the employee's complaint was dismissed in its entirety prior to trial. Kim Finley was selected to receive a 2002 Forty Under 40 Award from Business First. The award honors 40 Columbus business people under 40 years of age for their professional and community service. Traci McGuire, chairperson of the Hugh O'Brian Youth Foundation Ohio South Leadership Seminar, has received an award of "Outstanding" from the Hugh O'Brian Youth Leadership Foundation (HOBY). The award—the highest given by the national organization—is in recognition of the four-day leadership seminar held in May at Denison University. The seminar hosted more than 200 sophomores from high schools in Franklin and surrounding counties. A diverse group of speakers presented their views and experiences concerning leadership. Traci, who participated in this seminar as a high school student, is half way through a two-year term as chairperson. John Brody was recognized in the July 5, 2002, edition of The Daily Reporter as a graduate of Leadership Columbus. According to the article, the participants "spent the last 10 months examining their leadership and trusteeship interests while exploring the critical issues and challenges facing our community." Tom Metzger has been awarded the AV rating in Martindale-Hubbell. An AV rating identifies a lawyer with very high to preeminent legal ability and is a reflection of expertise, experience, integrity and overall professional excellence. Rasheeda Khan, a recent graduate of The Ohio State University College of Law and Jennifer Mackanos, a recent graduate of Capital University Law School, have joined Kegler Brown as associates. Both will work in the litigation area. Kevin Kerns was quoted in the article "Athlete settles, can play football" in The Columbus Dispatch on August 28, 2002. John Lowe was quoted in the article "Dress code good strategy for desktop photo display" in Business First on August 26, 2002. Tom Metzger was featured in the article "Finding the weather to his liking, local attorney adapts swimmingly to living inland" in The Daily Reporter on August 12, 2002. Don Gregory and Mike Copley were quoted in the article "Court ruling could affect awarding of bid contracts" in The Daily Reporter on July 31, 2002. Kevin Kerns was quoted in the article "It all adds up: Conviction and removal leaves Ohio one short for six months" in The Daily Reporter on July 26, 2002. Tom Metzger was quoted in the article "Wireless phone policies might take sting out of litigation" in The Daily Reporter on July 7, 2002. Larry Feheley was quoted in the article "Employee EEO training increases workplace cohesion, limits liability" in The Daily Reporter on June 14, 2002. Don Gregory was quoted in the article "School Contracts a 'Sham' - Construction Work Bid Unlawfully, Judge Rules" in the Columbus Dispatch on June 1, 2002. Ohio Supreme Court Allows Interest on Settlements: How to Avoid Paying More than You Agreed
A recent Ohio Supreme Court decision should have us all watching more closely how settlement agreements are worded. In Hartman v. Duffey (June 12, 2002), the Ohio Supreme Court held that under Ohio Revised Code § 1343.03, a party is entitled to interest upon any settlement from the date of the settlement until the settlement proceeds are received—unless the parties have agreed to a date certain by which the monies will be paid. In Hartman, the Plaintiff filed a medical malpractice action against her doctor, his medical practice and his clinic. Prior to the commencement of trial, the parties entered into a confidential settlement agreement. The confidential settlement agreement was not reduced to a formal judgment entry. Seventeen days later, the Plaintiff filed a motion to enforce interest on the settlement pursuant to Ohio Revised Code § 1343.03(A) and (B). Plaintiff ultimately received the settlement check on June 30, 2000 — twenty-five days after the parties had entered into the confidential settlement agreement. The Ohio Supreme Court held that the Plaintiff was entitled to the interest on the confidential settlement starting with the date of settlement. Specifically, the Ohio Supreme Court held in Hartman that pursuant to R.C. § 1343.03 a plaintiff who enters into a settlement agreement — that has not been reduced to judgment — is entitled to interest on the settlement from the date the agreement is signed to when the payment is actually made. It should be noted that this decision may affect past settlements as well as settlements entered into in the future. How can interest liability on future settlements be avoided? Here are some tips:
Efforts have begun to address appropriate legislation, which may narrow the doors that have been opened by the Hartman decision. However, until such changes occur, settlement negotiations need to be watched with a mindful eye toward specific language that will prevent the payment of any unnecessary interest. Limiting Liability at Corporate FunctionsBy Laurel A. Beatty Company retreats, picnics, or parties are wonderful tools for team building, goal setting, and just plain fun. Nonetheless, these events can set into motion all the elements of a lawsuit. Common sense and advanced planning, however, can help you ensure that these events are the positive experiences you envision. Rather than organizing at the last minute, companies should put a lot of effort into planning these events to reduce liability. Carefully consider all activities, including entertaining ones, at each event. For instance, a fire juggler at the company picnic does not sound like much fun after you picture the CEO's spouse without eyebrows. Upon careful consideration, the holiday skit that offends someone's age, sex, or race could also result in an employment discrimination or harassment lawsuit. Also requiring much deliberation and planning are events that include challenging physical skills and those offering alcohol. For example, recent trends in corporate retreats include white-water rafting, rappelling, and wilderness survival training. Not only is there a risk of injury, there is the potential for employees to feel harassed if they do not participate. If you are planning this type of event, it is crucial to do so in conjunction with an employment and labor law attorney. As for providing alcohol, some advocate that alcohol at work-related functions is not a good idea. However, employees can safely imbibe if you establish a car-pool system or request volunteers to be designated drivers or, alternatively, hire a transportation service to make sure everyone arrives home safely. Remember, if you suspect someone has over-indulged (and it might only take one drink for some people to exceed alcohol limits set by law), be sure that person does not drive. Although this may add an extra expense, it is certainly cheaper than defending the company against a lawsuit. Because it really is better to be safe than sorry, contact your insurance provider to determine if you have sufficient coverage. Furthermore, insist that any vendors hired provide you with a valid insurance certificate and name you as an additional insured for the day of the event. Besides your insurance carrier, consider calling an attorney to discuss the details of the event to avoid potential hidden liabilities. Most importantly, do not cancel the retreat, picnic, or party. Although it may take some forethought, companies can still reap enormous benefits from these events. Confidential Settlements Face ScrutinyBy Kim H. Finley It's an oft-cited litigation reality: Most cases settle. Some statistics suggest as much as 95 percent of all cases settle before a final resolution on the merits at trial. And when those cases settle, many of them have done so in part because the parties agreed to a confidentiality provision. Such provisions allow for quicker and more efficient resolution, especially when a defendant fears disclosure might lead to additional liability or possible business ruin. But the use of confidential settlements is facing renewed scrutiny and many critics of the practice are calling for laws prohibiting their use altogether. At the very least, opponents want restrictions fashioned after those of Florida and Texas, which prohibit the use of secret settlements in cases involving potential dangers to the public. For example, confidential settlements in a number of personal injury cases relating to alleged defective tires might have helped hide the defect and possible hazard from other buyers. Ohio currently has no limitations on confidential settlements between purely private litigants. But those embroiled in legal battles involving public entities should be aware that even if the parties agree to a secret settlement, there may be no way to enforce such a provision. The reason lies in the state's public records law. To illustrate, consider the circumstances in State ex rel. Dwyer v. City of Middletown, 52 Ohio App.3d 87 (1988 12th Dist.). In that case, a former chief of police resigned his position pursuant to a confidential agreement that an investigation of him would not be made public. He sued for reinstatement to his position alleging in part that the city had violated the terms of the non-disclosure provision. The court held that the investigation report prepared by city officials concerning the alleged wrongdoing of a public employee is a "public record." Any agreement guarding a public record from disclosure violated R.C. §149.43(A) and therefore was an illegal contractual provision. Pursuant to R.C. §149.43(A)(1) a "'Public record' means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in Ohio kept by a nonprofit or for profit entity operating such alternative school ..." There are a number of exceptions, including medical records, adoption records, and personal information on police officers. Public records are available for inspection pursuant to (B)(1) of the statute. Another example of the court rejecting a confidential settlement agreement argument involving a public entity is found in State ex rel. Kinsley v. Berea Board of Education, 64 Ohio App.3d 659 (8th Dist. 1990). In that case, the court held that settlement agreements between teachers and the school board contained the results of the bargaining process — not the details of the negotiations — and thus were not exempt from disclosure under the open meetings law or the public records act. The lesson is two-fold. If involved in litigation with a public entity subject to the public records laws, even if the parties agree to confidentiality, such secrecy may be impossible. If the decision-maker for a public entity is engaged in litigation with a private party, the carrot of non-disclosure or confidentiality is likely unavailable in settlement negotiations The Bar, the Bench and You:
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