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Tuesday, January 8, 2013

Maria Marusa et al. v. Erie Insurance Company, Case no. 2012-0058
Eighth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Leo Johnny Talikka, Case no. 2012-1324
Cuyahoga County

State of Ohio v. Tyrone Lee Noling, Case no. 2011-0778
Portage County Court of Common Pleas

Does Policy That Expressly Includes Drivers Subject to Sovereign Immunity As ‘Uninsured Motorists’ Waive Immunity Defense?

Insurer Disputes UM Coverage Because Policyholder Not ‘Legally Entitled to Recover’

Maria Marusa et al. v. Erie Insurance Company, Case no. 2012-0058
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When the uninsured/underinsured motorist (UM/UIM) coverage in an auto insurance policy expressly includes in the definition of an “uninsured vehicle” a vehicle driven by a person who is exempt from civil liability under the state’s sovereign immunity statute, may the insurer nevertheless deny UM/UIM coverage for damages caused by an immune driver based on general policy language that limits UM coverage to losses the policyholder “is legally entitled to recover.”

BACKGROUND: Under Ohio’s political subdivision immunity law, set forth in R.C. Chapter 2744, government employees are generally immune from civil liability for damages they may cause to third parties during the performance of the employee’s official duties. In practical terms, that grant of  immunity means that a third party who suffers personal injury or financial loss as the result of negligence by a public employee generally does not have a legal right to sue the employee or the political subdivision to recover civil damages.

 In November 2009, a vehicle driven by Maria Marusa and also occupied by her daughter, Melanie, was struck by a vehicle driven by North Royalton Police Officer Michael Canda while Canda was engaged in his official duties. At the time of the accident, Maria Marusa was covered by an auto insurance policy issued by the Erie Insurance Company in which the uninsured motorist coverage provision contained language including in the definition of an “uninsured vehicle” a vehicle “for which the owner or operator ... has immunity under the Ohio Political Subdivision Tort Liability Law.”  

Officer Canda entered into a stipulated agreement with the Marusas in which Canda admitted that he had been negligent and was solely at fault for the accident, and affirmed that he was a public employee exempt from liability for the Marusas’ damages under the state’s governmental immunity statute.

The Marusas filed suit in the Cuyahoga County Court of Common Pleas seeking a declaration that they were entitled to recover for the damages they had incurred in the accident under the UM coverage in their Erie policy. Erie filed a motion for summary judgment denying the requested coverage based on a general provision in its policy that limited UM/UIM coverage for personal injuries that an insured person “is legally entitled to recover from the owner or operator of the uninsured or underinsured motor vehicle.”

The trial court granted summary judgment in favor of the insurance company, holding that, notwithstanding the policy language including vehicles driven by governmentally immune drivers as “uninsured vehicles,”  the UM coverage in the Erie policy did not apply because the Marusas were not “legally entitled to recover” from Canda or North Royalton based on their governmental immunity.  On review, a 2-1 majority of the Eighth District Court of Appeals “reluctantly” affirmed the trial court’s holding based on the Supreme Court of Ohio’s 2007 decision in Snyder v. American Family Insurance Co.

The Marusas sought and were granted Supreme Court review of the Eighth District’s decision.

Attorneys for the Marusas point out that the insurance policy at issue in Snyder did not expressly include vehicles subject to governmental immunity in the definition of “uninsured vehicles,” while the Marusa’s Erie policy does. Under the Eighth District’s interpretation, they assert, the language in Erie’s policy including vehicles whose drivers are subject to governmental immunity as “uninsured vehicles” is rendered empty and meaningless, because a policyholder injured by such a vehicle would, by definition, never be “legally entitled to recover” damages from its driver.

They urge the court to follow previous decisions holding that: 1) when there is a conflict between general language in a contract and language addressing a specific set of facts or situation, the specific language should be enforced; and 2) when ambiguous language in an insurance policy written by the insurer is capable of two different interpretations, courts are required to interpret that language in favor of the policyholder and against the insurance company.

Attorneys for Erie argue that this case presents the same legal question that the court addressed in Snyder, which is whether, notwithstanding the fact that a vehicle subject to governmental immunity falls within the definition of an “uninsured” vehicle, an insurer may limit UM/UIM coverage by including policy language that restricts recovery to amounts that the policyholder is “legally entitled to recover” from the driver at fault.  In this case, they say, the trial court and Eighth District correctly held that because the Marusas are not “legally entitled to recover” for their accident damages from Officer Canda or North Royalton, the limiting language in Erie’s policy precludes the Marusas from  recovering under the UM coverage in that policy.

Representing Maria and Melanie Marusa: Donald E. Caravona, 216.696.6500

Representing Erie Insurance Company: Robert L. Tucker, 330.670.7300

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Attorney Discipline

Disciplinary Counsel v. Leo Johnny Talikka, Case no. 2012-1324
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that Lake County attorney Leo J. Talikka be indefinitely suspended from practice for multiple violations of state attorney discipline rules in his handling of client funds, failure to perform legal services for which he had accepted fee advances, and failure to return unearned fees and/or make timely distribution of lawsuit proceeds in his possession to which a client was entitled.

Talikka entered into  joint stipulations with the Office of Disciplinary Counsel admitting that he comingled his own funds with client funds on deposit in his law office trust account, failed to maintain accurate records or perform regular reconciliations to account for funds he held for different clients, neglected entrusted client legal matters, engaged in conduct prejudicial to the administration of justice, and on multiple occasions made use of funds he held in trust for one client to make disbursements to or on behalf of another client.

Although a three-member hearing panel approved the joint recommendation of Talikka and disciplinary counsel that he receive a two-year license suspension with the second year stayed on conditions, the full disciplinary board overruled that agreement and has recommended that the court impose an indefinite license suspension as the appropriate sanction for his misconduct.

Talikka has entered objections to the board’s recommended sanction, asserting that an indefinite suspension is disproportionate to the punishment imposed on other attorneys who have committed similar infractions and who had no prior history of misconduct, submitted evidence of a reputation for honesty and professionalism, and fully cooperated with disciplinary authorities.                               

In its response to Talikka’s objections, the Office of Disciplinary Counsel has submitted a brief concurring with Talikka’s position and urging the court to impose the panel’s recommended sanction of a two-year suspension with the second year stayed on several conditions, including the requirement that Talikka make full restitution of the amounts he owes to several clients before he may apply for reinstatement.

Representing Leo J. Talikka: Richard S. Koblentz, 216.621.3012

Representing the Office of Disciplinary Counsel: Jonathan E. Coughlan, 614.461.0256

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Does 2010 Law Require Court to Consider New Request for Postconviction DNA Testing Despite Denial of Earlier Request?

Under Legislation That Changed Statutory Criteria For Approval of Testing

State of Ohio v. Tyrone Lee Noling, Case no. 2011-0778
Portage County Court of Common Pleas



BACKGROUND:  In this case, death row inmate Tyrone Noling asks the court to reverse a trial court ruling that denied Noling’s application for additional DNA testing of a cigarette butt found at the scene of the double murder for which Noling was convicted and sentenced to death.

Noling and another 18-year-old, Gary St. Clair, were convicted and sent to prison in 1991 for two home-invasion robberies in Alliance. One of those crimes occurred on the same day an elderly couple, Bernhardt and Cora Hartig, were murdered in their home in Atwater, about a 20-minute drive from Alliance. In 1992, Noling was indicted for the Hartig murders. He denied any involvement in those crimes.

DNA tests performed in 1993 found that saliva on a cigarette butt found at the scene of the Hartig killings did not match Noling or any of the other persons the state believed had participated in the Hartig robbery and murders. The 1992 murder indictment was subsequently dismissed.  However in 1995 a Portage County grand jury reindicted Noling, who was still serving his prison sentence for the Alliance robberies, for the Hartig murders. The indictment included death penalty specifications.

Noling was tried for the Hartig murders in the Portage County Court of Common Pleas. Although no physical evidence was introduced linking Noling to the killings, two alleged co-participants testified that Noling had planned the Hartig robbery, and had shot the victims while the witnesses  waited in a car outside. Noling and St. Clair testified that the state’s witnesses were lying to earn reductions in their sentences for other crimes, and that Noling had not been near the Hartig home on the day of the murders.

Noling was convicted of murdering the Hartigs and sentenced to death. His convictions and death sentence were affirmed by the Eleventh District Court of Appeals in 1999, and by the Supreme Court of Ohio in 2002.

In 2008, while Noling continued to pursue federal appeals of his murder convictions and death sentence, he filed a motion in the trial court seeking new DNA testing of the cigarette butt that had been found in the Hartigs’ driveway.  The court denied that motion, holding that, under the then-current state law addressing post-conviction DNA testing, a new test could be ordered only if there had not been a prior “definitive” test of that evidence. The court found that the 1993 test had been “definitive” because it had positively excluded Noling and his alleged collaborators as the source of saliva on the cigarette butt, and therefore the law did not allow new testing.

In 2010, the General Assembly enacted S.B. 77, new legislation that changed the definition of a prior “definitive” DNA test.  The effect of that change was to allow retesting of biological evidence if the defendant could show that because of advances in testing procedures, a new test could disclose information that the first test could not, and there was a strong probability the new test would identify the true perpetrator of the crime.

Following the enactment of S.B. 77, Noling filed a new motion seeking to retest the saliva on the cigarette butt.  He asserted that the state had not disclosed at the time of his trial that the 1993 test results excluding Noling and St. Clair as the source of saliva on the cigarette butt at the crime scene did not exclude another suspect, Daniel Wilson, who had been convicted of murder in an unrelated case, and who lived in Atwater less than a mile from the Hartigs’ home at the time they were killed.  Wilson was executed in June 2009, but his DNA profile is on file in the state’s CODIS database.

Noling argued that while  testing techniques available in 1993 were unable to positively identify the source of the saliva, a new test using current technology would allow a comparison of the DNA from the cigarette butt to Wilson’s DNA profile.

The trial court denied the motion for new testing, this time citing a separate provision of the testing law stating that, once a defendant’s motion for new DNA testing of evidence had been denied, a court was barred from entertaining any subsequent motions seeking retesting of the same evidence.  The court ruled that, because Noling’s 2008 motion seeking retesting of the cigarette butt had been denied under the pre-S.B. 77 version of the law, the court could not consider any new motions to retest that same evidence. Noling sought and was granted Supreme Court review of the trial court’s ruling.

Attorneys for Noling argue that the trial court erred by failing to recognize that its denial of his 2008 motion for new testing was based on the narrow pre-S.B. 77 criteria for a “definitive test,” whereas his 2010 motion was made under the new and less restrictive requirements of S.B. 77.  They assert that in adopting S.B. 77, the legislature intended to remedy exactly the situation presented in this case,  i.e. situations in which the former law required courts to deny a defendant’s motion for new testing even though newly developed testing techniques can provide much more precise, and potentially exculpatory, analysis of DNA evidence that the tests performed at the time of the defendant’s trial.

They urge the court to hold that the statutory language barring new testing where a prior motion to retest has been denied should only be applied where a court has previously denied a new test under the S.B. 77 criteria, but should not prevent a court from granting a post-S.B. 77 motion for retesting where a previous denial of testing was based on the pre-S.B. 77 criteria for  a definitive test.

Attorneys for the state urge the court to affirm the trial court’s decision denying Noling’s 2010 motion for retesting of the cigarette butt.  They note that it is uncontested that Noling moved for new DNA testing in 2008, and that his motion was denied according to the law in place at that time.  They
point to the plain language of R.C. 2953.72(A)(7) stating  that a trial court “will not accept or consider subsequent applications” for retesting of evidence once a prior request has been denied, and assert that nothing in S.B. 77 indicates that this preclusion of repeated motions for retesting  depends on which version of the testing statute was in effect when the defendant’s prior motion was denied.

The parties have also submitted briefs on a supplemental question of law raised by the court on its own initiative.  That question is whether language in the DNA testing statute stating that trial court denials of new postconviction DNA testing in death penalty cases may be reviewed only by the Ohio Supreme Court violates the provision of the Ohio Constitution giving the state’s intermediate courts of appeals jurisdiction over appeals of all trial court proceedings except the direct appeal of “a judgment that imposes a sentence of death.”

Representing Tyrone Noling and Ohio Innocence Project: Carrie E. Wood, 513.556.0752

Representing Portage County prosecutor’s office: Pamela Holder, 330.297.3850

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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.