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Wednesday, Oct. 10, 2007

Kevin R. Flynn and Margaret M. Flynn, Individually and as Parent and Natural Guardian of Kevin P. Flynn, Shannon Flynn and Colleen Flynn, minors v. Westfield Insurance Company et al., Case no. 2006-1619
1st District Court of Appeals (Hamilton County)

State of Ohio v. Jeffrey L. Price, Case no. 2006-1689
2nd District Court of Appeals (Montgomery County)

State of Ohio v. Kevin Johnson, Case no. 2006-2154
12th District Court of Appeals (Butler County)

Francis Hyle, Green Township Law Director, et al. v. Gerry R. Porter, Jr., Case no. 2006-2187
1st District Court of Appeals (Hamilton County)


Did Business’ Auto Insurance Policy Provide UM/UIM Coverage for Partner’s Injuries?

Kevin R. Flynn and Margaret M. Flynn, Individually and as Parent and Natural Guardian of Kevin P. Flynn, Shannon Flynn and Colleen Flynn, minors v. Westfield Insurance Company et al., Case no. 2006-1619
1st District Court of Appeals (Hamilton County)

ISSUE: Does the uninsured/underinsured motorist (UM/UIM) coverage in a business auto insurance policy which lists a partnership as a named insured party provide coverage to a partner in the firm who is injured while driving his personal car on company business?

BACKGROUND: While driving his own car in the course of his joint employment as a partner in a law firm and an employee of a real estate title company, Kevin Flynn of Cincinnati suffered serious injuries in a traffic accident caused by another driver. The crash left Flynn paralyzed from the chest down. After recovering the policy limits of the other driver's liability insurance and the maximum underinsured motorist (UIM) coverage provided by his own personal auto insurance policy, Flynn and members of his family filed a claim seeking additional recovery under a corporate auto insurance policy and an “umbrella” policy that his law firm, Griffin-Fletcher and the title agency, Lawyers Title of Cincinnati (LTOC), had jointly purchased from the Westfield Insurance Company.

Westfield denied the claims, asserting that the UIM endorsement in the auto policy it issued to Griffin-Fletcher/LTOC limited coverage to insured persons who were injured while occupying a “covered vehicle,” defined as a vehicle owned or hired by the named insured companies. Since Flynn was driving his own car at the time he was injured, Westfield asserted that he was not entitled to recover under his employers' policies. The Flynns sued. The Hamilton County Court of Common Pleas granted summary judgment in favor of Westfield.

The Flynns appealed that decision, and the 1st District Court of Appeals reversed the trial court. The court of appeals held that Flynn was entitled to UIM coverage as a partner in the Griffin-Fletcher law firm, citing prior Ohio court decisions holding that a partnership “is an aggregate of individuals and does not constitute a separate legal entity” and therefore that insurance policies that include a partnership as a named insured party must provide coverage to each partner in the firm. The 1st District also ruled that the policy language was ambiguous regarding whether an insured person must also be in a “covered vehicle” to be eligible for UIM coverage. It noted that under the Supreme Court of Ohio's 2003 decision in Westfield v. Galatis, when the terms of a corporate policy are ambiguous regarding who is entitled to UM/UIM coverage, coverage is presumed for employees when they are injured in the course of their employment. Since it was undisputed that Flynn was injured while delivering documents on behalf of LTOC, the court of appeals held that the UIM coverage purchased by LTOC from Westfield extended to Flynn.

Attorneys for Westfield now ask the Supreme Court to reverse the 1st District and reinstate the trial court's judgment dismissing the Flynns' claims against them. They point to language in the Supreme Court's Galatis decision stating that UM/UIM coverage in a policy issued to a business entity extends to employees injured in the course of their employment “absent specific language to the contrary.” They argue that the “declarations” section of the auto policy issued to Griffin-Fletcher/LTOC clearly states that UM/UIM coverage extends only to vehicles owned or hired by those companies. They note that the companies could have obtained extended coverage for “nonowned vehicles,” including the personal vehicles of partners and employees when being used for company business, but opted not to do so. They contend that the 1st District's decision ignores both the language of the insurance contract and the intent of the parties to limit UIM coverage.

Attorneys for the Flynns point to several cases decided since Galatis in which they say Ohio courts of appeals have held that corporate auto insurance policies with language identical to the Westfield policy here provide UM/UIM coverage for a partner or employee who is injured in the course of employment regardless of whether the injured party was occupying a “covered vehicle.” They also argue that under Ohio law Flynn and his partners collectively are the Griffin-Fletcher law firm that purchased the Westfield policy, and therefore vehicles owned or hired by a partner, including the leased car Flynn was driving when he was injured, are “owned or hired by the policyholder” and therefore are “covered vehicles” entitled to UM/UIM coverage.

Contacts
J. Stephen Teetor, 614.221.2121, for Westfield Insurance Company.

John F. McLaughlin, 513.381.9200, for Kevin Flynn and family members.

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Does a Civil Protection ‘No Contact’ Order Survive a Subsequent Divorce Decree Permitting Visitation?

State of Ohio v. Jeffrey L. Price, Case no. 2006-1689
2nd District Court of Appeals (Montgomery County)

ISSUES:

BACKGROUND: On Sept. 21, 2000, Cathy L. Price obtained a Civil Protection Order (CPO) from her husband Jeffrey L. Price in the Montgomery County Court of Common Pleas, Domestic Relations Division, and was granted temporary custody of the couple's child, Justin Price, born April 21, 1997. At that time, Mr. Price's visitation rights were temporarily suspended and he was ordered not to contact Justin by telephone, fax, e-mail, voicemail or otherwise.

The terms of the CPO were ordered to remain in full force and effect for five years, “Unless earlier modified, vacated, or extended by order of this Court.” The CPO further stated that the order survives a divorce, dissolution of marriage or legal separation. In April 2001, the couple divorced. In the divorce decree, the court ordered Ms. Price to have full custody of Justin and granted visitation to Mr. Price “at the discretion” of the protected party, Ms. Price.

After the divorce decree was filed, Mr. Price began visiting with his son and contacting him at Ms. Price's discretion. However, in December 2003, Ms. Price reported that Justin began exhibiting violent tendencies after his visits with Mr. Price. As a result, Ms. Price terminated visitations between Mr. Price and Justin in June 2004. Still, Ms. Price allowed Justin to visit with his father during Christmas 2004.

In April 2005, Mr. Price contacted Ms. Price's residence, leaving several messages on her answering machine, including: “Check the front door; I love you, Justin, talk to you later; I love you Justin; Justin, I love you. See you on your birthday.” Ms. Price contacted the police explaining that she was afraid to check the front door, but when she did, found an Easter basket for Justin. Ms. Price told police and the jury that she considered the messages harassment and a violation of the CPO.

On May 9, 2005, Mr. Price was charged with one count of violating a CPO and a jury trial was held. On Sept. 13, 2005, the jury found Mr. Price guilty of the charged offense and also found that Price has a prior conviction for violating a CPO. The trial court sentenced Mr. Price to five years of community control sanctions. In July 2006, the 2nd District Court of Appeals affirmed Mr. Price's conviction and sentence. Mr. Price then appealed to the Supreme Court, which accepted the appeal.

Mr. Price asserts that the divorce decree granting him visitation rights at his wife's discretion modified or superseded the prior-issued CPO to the extent that the two orders contradict one another. He argues that he should not be liable to prosecution for making contact with his wife and son to pursue discretionary visitation when such actions, while prohibited by the earlier CPO, were necessary and therefore authorized under the terms of the subsequent divorce decree.

Ms. Price argues that the CPO “no contact” order continued under the divorce decree permitting visitation at “the mother's discretion.” She maintains that the divorce decree did not imply that Mr. Price could initiate contact, regardless of the content of the message, with her or their son in violation of the CPO.

Contacts
Johnna Marian Shia, 937.225.5600, for the State of Ohio and Montgomery County prosecutor's office.

Michael Bramlett Miller, 937.223.8171, for Jeffrey L. Price.

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May Court Impose Concurrent Sentences when Each Count Requires Mandatory Prison Term?

State of Ohio v. Kevin Johnson, Case no. 2006-2154
12th District Court of Appeals (Butler County)

ISSUE: When a defendant is convicted of multiple crimes, each of which requires that the court impose a prison term under R.C. 2929.13 (F), does a trial court have discretion to direct that the sentences for those convictions be served concurrently (at the same time), or must the court order that the sentences be served consecutively (one after another)?

BACKGROUND: A provision of Ohio's criminal sentencing statute, R.C. 2929.13(F)(2), requires that when a person is convicted of “any rape... the court shall impose a prison term or terms... and shall not reduce the term or terms” (by applying various statutory provisions that allow reduced sentences under certain conditions).

In August 2005, Kevin Johnson was indicted by a Butler County Grand Jury for four counts of rape. He entered a plea of not guilty to the charges, and a jury trial was held. The jury found him guilty on each count. In September 2005, the trial court sentenced Johnson to a life sentence for each of the four rape counts and directed that the sentences be served consecutively. In effect, imposing the sentences consecutively precluded any possibility that Johnson would ever become eligible for parole. At the sentencing hearing the trial judge stated that his court “(did) not have the discretion to run these sentences concurrent.” In its sentencing entry, the court stated: “Since the conviction on each count requires a mandatory sentence, pursuant to R.C. 2929.13(F)(2), the Court is required by law to run each sentence consecutively.”

Johnson appealed the imposition of consecutive sentences. The 12th District Court of Appeals affirmed the decision of the trial court, but certified that its holding was in conflict with a decision of the 3rd District, which held in a similar case that a trial court was required under R.C. 2929.13 (F) to impose a separate prison sentence for each of multiple offenses listed in that statute, but had discretion to determine whether those sentences should be served concurrently or consecutively. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Johnson argue that the statute is ambiguous and maintain that there is no authority for the proposition that consecutive sentences are mandated by R.C. 2929.13(F). They point out that while other criminal statutes mandate the imposition of consecutive sentences under certain conditions; no such specific requirement is included in the language of R.C. 2929.13. They argue that the trial judge did not base his decision to impose consecutive life sentences on any findings supporting such an extreme penalty, but clearly indicated in his sentencing entry he was taking that action because of a (mistaken) belief that he was required by law to do so.

An amicus curiae (friend of the court) brief supporting Johnson's position has been filed by the Ohio Association of Criminal Defense Lawyers.

Representing the state, the Butler County prosecutor's office urges the Supreme Court to affirm the decision of the 12th District. They contend that trial courts must sentence a defendant convicted of multiple counts of rape to a separate prison term for each count of which he is convicted pursuant to the “unambiguously mandatory directive of R.C. 2929.13(F).” In urging the Court to consider the plain language of the statute and the legislative intent in making a separate prison term mandatory for “any rape,” the prosecutor argues that allowing sentences for multiple rapes to be served concurrently amounts to a ‘volume discount' where a defendant essentially serves one term for the commission of multiple, serious crimes for which mandatory prison terms are required.

Contacts
Lina Nizar Kirchner, 513.887.3474, for the State of Ohio and Butler county prosecutor's office.

Christopher Paul Frederick, 513.737.5100, for Kevin Johnson.

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May State Law Barring Sex Offenders’ Residency Near School Be Applied Retroactively?

Francis Hyle, Green Township Law Director, et al. v. Gerry R. Porter, Jr., Case no. 2006-2187
1st District Court of Appeals (Hamilton County)

ISSUE: May a state law that prohibits sexually oriented offenders from living within 1,000 feet of a school be enforced retroactively against an offender who committed his offense and bought a home within 1,000 feet of a school prior to the effective date of the law imposing the residency restriction?

BACKGROUND: R.C. 2950.031, which took effect July 31, 2003, prohibits certain sexually oriented offenders from “establishing a residence or occupying residential premises” that are within 1,000 feet of any school property. This case asks the Supreme Court to determine whether applying that law to require a registered sex offender to move out of a home that he purchased and lived in prior to the effective date of the statute violates a prohibition in the Ohio Constitution against the enactment of retroactive laws that impair a citizen's exercise of a vested substantive right.

Gerry Porter purchased a home in Cheviot in 1991 where he lived with his family for 14 years and where his family still resides. Porter was required to register as a sexually oriented offender following his guilty plea to a sexual battery charge in 1999. In 2005, following the legislature's enactment of the sex offender residency statute, Green Township Law Director Francis Hyle sought a court injunction to force Porter to move out of his home because a portion of his lot was within 1,000 feet of the property line of a parochial grade school. Porter opposed the injunction, arguing that the residency statute was unconstitutional as applied to him because it retroactively deprived him of the substantive right to live in a home he had purchased and occupied for years before the school proximity restriction was adopted.

The Hamilton County Court of Common Pleas issued an injunction requiring Porter to move out of his house. On review, the 1st District Court of Appeals affirmed the action of the trial court, holding that application of the residency restriction retroactively to force Porter to move did not divest him of his substantive property right in his home because it still allowed him to maintain ownership of the house and to rent or lease it to a tenant if he chose. However, the 1st District also certified that its decision in this case was in conflict with a 2006 decision by the 2nd District Court of Appeals, Nasal v. Dover, in which that court found the residency restriction was unconstitutional because it retroactively infringed on a sex-offender's vested right to live in a home he had purchased before the “1,000-foot rule” became law in 2003. The Supreme Court has agreed to hear arguments in the case to resolve the conflict between appellate districts.

Attorneys for Porter point out that court decisions interpreting Section 28, Article II of the Ohio Constitution have held that new laws may only be applied retroactively (a) when the legislature clearly states that it intends a law to be retroactive, and (b) even where there is clear legislative intent, a law may not be applied retroactively if doing so deprives a citizen of a substantive right in which he or she was vested before the law took effect.

They argue that the language of R.C. 2950.031 does not clearly indicate legislative intent that the law be applied retroactively, and in fact point to a provision specifying that the residency restriction does not apply to offenders who had signed a lease or rental agreement before the effective date of the law. Even if the Court holds that there was legislative intent to apply the law retroactively to homeowners, they assert, the right of a property owner to use and enjoy his home is one of the most fundamental rights guaranteed by the U.S. and Ohio constitutions, and the 1st District clearly erred in ruling that forcing Porter and other former offenders to move out of homes they owned before the 1,000-foot rule became law was not an unconstitutional infringement on a “substantive right.”

Attorneys for Green Township and Hamilton County urge the Court to affirm the decisions of the trial court and 1st District and uphold the statute as constitutional. As evidence of legislative intent that the law be applied retroactively, they point to statutory language that not only bars registered offenders from “establishing a residence” but also specifically prohibits them from “occupying residential premises” within 1,000 feet of a school. Even if the Court should find that a sex offender does have a “substantive right” to live in a home he owns, the state argues that his right does not supersede or invalidate the right of the state to exercise its police powers by enacting reasonable regulations that protect public health and safety. In this case, they say, the 1,000-foot rule is not an additional after-the-fact punishment for the prior crimes of sex offenders but rather a forward-looking measure that is rationally related to the public purpose of placing a “buffer zone” between vulnerable children and persons with a history of sexual offenses.

Amicus curiae (friend of the court ) briefs supporting the position of Porter in this case have been entered by the American Civil Liberties Union and the Ohio Justice and Policy Center. The office of the Ohio Attorney General has entered an amicus brief supporting the position of Green Township and Hamilton County.

Contacts
David A. Singleton, 513.421.1108, for Gerry Porter.

Robert P. Mecklenborg, 513.481.9100, for Green Township Law Director Francis Hyle.

Paula Adams, 513.946.3228, for the Hamilton County Prosecutor's Office.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.