Friday, July 31, 2009

Ohio Supreme Court civil considerations

In the first of two civil considerations this week, the Ohio Supreme Court on Wednesday found that a law firm, being an entity as opposed to an individual, does not engage in the practice of law, and therefore cannot directly commit legal malpractice; also holding that law firms can't be held liable for legal malpractice unless one of its principals or associates is found liable. [ Nat'l. Union Fire Ins. Co. of Pittsburgh v. Wuerth ( summary )( opinion ) ]

In answering that certified question from the federal Sixth Circuit Court of Appeals, Ohio's Supreme Court "(drew) upon the similarities between the legal & medical professions," in part referencing its 1989 decision in Zimmie v. Calfee, Halter & Griswold where it had held that "[m]edical and legal malpractice actions should conform to the same standard for determining when a cause of action accrues and when the statute of limitations commences so we do not discriminate 'for or against' doctors or 'for or against' lawyers."

"Our precedent concerning medical malpractice is instructive," the Court said, "and in the medical context, we have recognized that because only individuals practice medicine, only individuals can commit medical malpractice… In Browning v. Burt (1993), we explained that '[a] hospital does not practice medicine and therefore is incapable of committing malpractice' … As we explained in Thompson v. Community Mental Health Ctrs. of Warren (1994), '[i]t is well established common law of Ohio that malpractice is limited to the negligence of physicians and attorneys.'"

Yesterday, it held that in lawsuits for negligence a party cannot be awarded punitive damages unless compensatory damages were first awarded, also ruling that there was no "per se" rule barring a defendant accused of negligent tortuous conduct from asserting a claim of self-defense. Whether evidence presented supports such a claim is a matter trial courts should decide on a case-by-case basis. [ See Niskanen v. Giant Eagle, Inc.( summary )( opinion ) ]

And last Tuesday the Court held that Ohio's Administrative Code, O.A.C. 109:4-3-16(B)(22), is unconstitutional and invalid to the extent that it allows state courts to consider "parol evidence" of alleged oral promises or representations made by a vendor to a consumer that are contrary to the terms of a written contract signed by the parties. [ See Williams v. Spitzer Autoworld Canton,L.L.C ( Summary )( Opinion )]

"Under the parol evidence rule," the Court said, "if an agreement between parties has been reduced to a signed, written contract, and that contract includes language stating that all terms and conditions of the agreement are set forth in the contract and no other terms or conditions previously discussed by the parties are binding on the parties, then neither party may later introduce 'parol' evidence (evidence of alleged verbal or written commitments outside of the signed contract) to seek additional compensation or concessions from the other party."

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