One of the many areas of uncertainty for businesses during the COVID-19 pandemic is the risk of liability if persons could prove that they contracted the coronavirus due to negligent acts or omissions. House Bill 606, recently signed into law by the Governor, brings legal clarity to that issue.

It provides a qualified immunity that prevents any lawsuit from being brought for damages due to injury, death, or other loss to person or property if the claim is based on exposure, transmission or contraction of MERS-CoV, SARS-CoV, or SARS-CoV-2, including mutations of those viruses.

This immunity is “qualified” meaning that there still could be liability if the person can establish that exposure and contagion were due to “reckless or intentional misconduct or willful or wanton misconduct” on the part of the person or business being sued.

Another significant aspect of the law is that government orders, recommendations, or guidelines are not admissible into evidence as proof of a duty of care or to establish that a legal right was created (and therefore violated).

The full text of House Bill 606 can be obtained at: https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-606

The U.S. Supreme Court today in King v. Burwell, Case No. 14-114, rejected a significant challenge to the Affordable Care Act, holding that tax credits for purchased insurance may be provided to persons who are enrolled in a health insurance exchange created by the federal government. It was argued that the tax credits could only be given to persons enrolled in an exchange “established by the State….” per the language of the Act. If the Supreme Court agreed with that interpretation that would mean that persons in states who did not create health insurance exchanges would be frozen out of receiving the tax credits.

Critical to the decision was the Court’s disagreement with the assertion that the language “established by the State….” was plain and unambiguous. The Court held that, when it was read in context, this language was ambiguous insofar as it could be read as meaning only exchanges established by a state or exchanges established by both the states and federal government. Once the Court determined that it could treat this language as ambiguous it therefore was able to review its meaning within the broader structure of the Affordable Care Act to ascertain its precise meaning. The Court held that if it accepted the argument advanced by those challenging the law it would effectively destroy the very purpose for which the Act was enacted and that Congress could not have intended such a result. In sum, the tax credits are necessary in order for a federal exchange to function and the Court rejected the claim that a contrary result was ever intended by Congress.

Historically the Ohio Constitution has been interpreted as affording Ohio citizens protection against infringement of their rights in a manner equivalent to that afforded by the U.S. Constitution. But in State v. Brown, 2015-Ohio-2438, decided June 23, 2015, the Ohio Supreme Court held that Art. I, Sec. 14 of the Ohio Constitution affords greater protection against unreasonable search and seizure than the Fourth Amendment.

The case centered around the authority of a township police officer in a township with a population of less than 50,000 to stop a driver on an interstate highway for a marked lanes violation. The authority of township officers is specifically limited by the Ohio Revised Code and, pertinent to the case, it does not give an officer authority to enforce such offenses as speeding, marked lane violations, and use of turn signals on an interstate highway. The wrinkle in the case is that the Fourth Amendment has been held to not be violated when an officer acts outside of their statutory jurisdiction as long as the person was stopped pursuant to probable cause that an offense was committed.

The Ohio Supreme Court held the Ohio Constitution goes farther than the Fourth Amendment and is violated when a traffic stop is made by an officer outside of the limits of their statutory jurisdiction and authority. The Court’s decision is specific to minor misdemeanor traffic offenses and not instances where a more serious crime may have been committed. But it appears to be a decision that will cause future debate as the parameters of the Court’s decision regarding Art. I, Sec. 14 are tested.

Raisin lovers may want to take note that the U.S. Supreme Court in the case of Horne v. Department of Agriculture, Case No. 14-275, on June 22, 2015, issued a decision regarding an obscure raisin law. The Agricultural Marketing Agreement Act of 1937 authorized the Secretary of Agriculture to promulgate “marketing orders” to maintain stable markets for certain agricultural products. The marketing order for raisins resulted in the creation of the Raisin Administrative Committee. The Committee apparently took a rather liberal interpretation of its mandate to the extent that raisin growers were required to set aside a certain percentage of their crop – 47% in 2002-2003, 30% in 2003-2004 – which the government took free of charge. Those raisins were then disposed of as the Committee saw fit. They may have been sold in noncompetitive markets, donated, or otherwise disposed of in furtherance of the program. The growers only received the net proceeds of the program (less the government’s expenses in administering it). Nothing guaranteed the growers ever received a cent and, in fact, in one year they did receive nothing. The Hornes are family growers who were not very happy with turning a large percentage of their crop over to the government for potentially nothing in return and eventually refused to do so. They were fined the fair market value (of their own raisins) plus additional civil penalties.

The Hornes believed the government program was an unconstitutional taking of their property without just compensation, as required by the Fifth Amendment. The government contended that the program was not a taking as (i) personal property is afforded less protection than real property, (ii) the program conferred a benefit in the form of an orderly raisin market, (iii) the growers maintained a net interest in the raisins, and (iv) they could just plant something else. In essence, the government argued the program was a regulatory “use restriction” and, while affecting private property, did not amount to a taking.

The Supreme Court rejected these arguments. It held that personal property enjoys the same protection under the Takings Clause as real property. This program required the physical transfer of the crop to the government which then held title to it and sole control over its disposition. The fact that the growers are provided some benefit in the form of net proceeds did not change the character of the taking.

Some local governments attempt to regulate outdoor signage by classifying them according to their purpose or message. They may regulate them as “political signs” or “directional signs” and further define those sign types by the message they display. Doing so invokes the First Amendment’s protection against the infringement of free speech. These local governments, while attempting to permit certain types of signs for practical reasons, nonetheless unwittingly violate the First Amendment by favoring some speech over others based upon the content of the sign’s message. Such regulation is subject to the most exacting of judicial scrutiny (“strict scrutiny”) and rarely withstands constitutional challenge.

This is what occurred in the case of Reed v. Town of Gilbert, U.S. Supreme Court Case No. 13-502, decided on June 18, 2015. Gilbert, Arizona enacted a sign code which permitted certain types of temporary outdoor signs. Examples included “political signs” which by definition pertained to elections and “temporary directional signs” which directed members of the public to certain types of specified events. Other non-commercial messages were prohibited from being displayed, or, were subject to different restrictions based upon their content. The Supreme Court rejected Gilbert’s assertions that aesthetics and traffic safety were relevant to the degree of judicial scrutiny to be applied because the regulations were facially content-based. The Court further rejected aesthetics and traffic safety in this instance as being a “compelling governmental interest” which is “narrowly tailored to achieve that interest” as required under the strict scrutiny test because ultimately some signs were permitted solely based upon messages while identical signs would not, again, based solely upon their message.

HSK has developed a content-neutral model sign code which has been adopted by local governments which addresses this legal issue as well as the myriad of other legal issues present in municipal sign regulation.

Businesses often classify persons performing services for them as independent contractors and structure compensation — often on a set fee, per job basis — as one of the justifications for the classification. The difficulty is that the federal Fair Labor Standards Act (FLSA) requires a more nuanced analysis. The recent case of Keller v. Miri Microsystems, Sixth Circuit Case No. 14-1430, decided March 26, 2015, provides an example of just how complex the analysis can be.

Keller worked for Miri Microsystems installing and repairing satellite-internet dishes for its customers six days a week. He was classified as an independent contractor and paid at a predetermined rate per job without regard to the number of hours worked. He was free to accept or refuse jobs and to set his own hours. He used his own van and equipment for the work. He carried his own commercial liability insurance. Keller nonetheless alleged that he was an employee within the meaning of the FLSA and therefore entitled to additional time and a half compensation for hours worked in excess of 40 in a work week. The Sixth Circuit held that, despite the foregoing facts, sufficient additional facts were present for the case to proceed to trial on the question. This holding was the result of applying the so-called economic-reality test.

The economic-reality test examines 6 non-exclusive factors to ascertain whether a person is an employee within the meaning of the FLSA and therefore subject to its protection. They are 1) the permanency of the relationship between the parties, 2) the degree of skill required for rendering the services, 3) the worker’s investment in equipment or materials for the job, 4) the worker’s opportunity for profit or loss, 5) the degree of the alleged employer’s right to control the manner in which the work is performed, and 6) whether the service rendered is an integral part of the alleged employer’s business. All of these are focused on the ultimate question of whether the person has an economic dependence on the alleged employer.

In this case, while he was not required to, Keller did work exclusively for the company for 20 months as he has no time to do other work. He was provided a significant component of his training by the company in order to perform the installations. Keller’s investment consisted only of the use of his wife’s van and tools that are commonly found in households for non-professional work. Further, there was nothing to suggest that Keller could increase his profit through efficiencies or hiring help. Also significant was that the work being performed by Keller was an integral aspect of the company’s business. In fact, installing and repairing dishes was its sole business.

The business may ultimately prevail in this case. But the costs associated with defending it as well as the uncertainty of the result are likely significant business disruptions. It illustrates the need for a studied analysis of a business’s employment practices to avoid such legal complications.

Protective orders issued in domestic and criminal cases are intended to ensure that persons are kept free from potential harassment and harm. But what about their pets? Senate Bill 177 which became effective on March 23, 2015 amended various statutes to make it clear that a court can now include a person’s pets within the scope of the protective order. Specifically, the order may include “companion animals.” Ohio law defines a “companion animal” as “any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept.” It does not include livestock or any wild animal. These amendments now definitively remove any grey areas that may have existed under prior law.

Is an outgoing 9-1-1 call between a police dispatcher and an accused in a murder case exempt from Ohio’s public records law? In the recent case of State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974, the Ohio Supreme Court held that the recording is a public record and should have been released upon request. Ohio law exempts various records from release, inclusive trial-preparation and confidential law-enforcement investigatory records. The 9-1-1 recording fell within none of those exceptions. An interesting aspect of the case was the prosecuting attorney’s concern that release of the recording would unfairly prejudice the accused’s right to a fair trial as protected by the 6^th Amendment. The Ohio Supreme Court recognized the importance of this concern, however, it ultimately rejected the claim on the basis that there was no evidence presented that release of the record would, in fact, cause the accused such prejudice at trial. The Court further held that, in addition to statutory damages, an award of reasonable attorney’s fees was warranted. The case again illustrates the need for local governments to closely scrutinize the bases for any denials of public records requests.

The Fifth District Court of Appeals recently decided a case involving the right of an adult child to visit with an incompetent parent.  Many families experience the trouble that sometimes occurs when a child has visitation with a parent at a nursing home or assisted living environment and the parent is later determined to have been agitated by the visit(s).  Usually it is another family member who perceives the agitation, and a family dispute ensues.  The probate court has the jurisdiction to address this type of problem, but the probate court must observe due process when entering orders regarding such problems.  In this case, the probate judge ordered that a particular child have a psychological assessment before having any more visits with his father.  The order was based on a report issued by a guardian ad litem, but was not supported by actual testimony.  Even worse, the adult child was not put on notice that the court would be considering such an extreme response, and he was not called to testify or permitted to testify.  The court of appeals determined that placing such a restriction on an adult child without a hearing was impermissible.  Arguments about who should visit mom or dad and under what restrictions are more common that most persons know.  A good probate lawyer would help prevent such disagreements from spinning out of control and into the probate court.

The second district court of appeals recently underscored the perils of pro se representation and how much it can cost someone personally to make a mistake as a fiduciary.  A woman died without a will.  Two of her three children were still alive, as well as the children of a child that had predeceased her.  One of the woman’s children opened up an estate but did not include the children of the deceased sibling for distribution of assets or even notice of the probate.  Ten years later those overlooked grandchildren found out that were left out.  They sued to get their money from their aunt and won.  The aunt that acted as the fiduciary will now have to dig into her own pocket and come up with money for her nieces and nephews.  She will also have to cover for the money owed from the amount she overpaid her surviving sibling if that sibling no longer has the money.  If you think that this is only limited to probate court, and that a trust can save you from such a fate, think again.  Overlooked trust beneficiaries can also sue.  Hire an attorney to make sure you get it right.  Those checks you sign with all of those zeros in them can come back to haunt you in the worst way.

The Sixth District Court of Appeals has recently ruled that an appeal from probate court cannot be a substitute for a proper records request.  The appellant wanted to obtain a transcript from a hearing at probate court.  The case was closed and an appeal of the closing of the case had not been filed.  Asking for a transcript on a closed file is irregular, and the probate court refused.  An appeal of that refusal was made and the court of appeals stated that the appellant should have filed a different type of suit to get public records, which is what the transcript actually is.  The moral of the story is that when you have a litigated or controversial matter before the probate court, take a court reporter with you to record the hearing and then transcribe the testimony if you need it.

The Ninth District Court of Appeals recently held that a promissory note payable to a deceased person could be the basis of a suit by the estate fiduciary for recovery of the money.  If the person you borrowed money from dies, do not think your obligation is over.  Once the probate court appoints a fiduciary for the estate, that fiduciary can take action in court to collect what is owed, especially if the debt is documented in writing.

The Fifth District Court of Appeals has recently added to the body of law regarding payment of money to a beneficiary because of the death of an account owner.  Probate court does not get involved in these types of cases, but the issues are certainly related to what is decided in probate court.  In this particular case, a life insurance policy had a beneficiary listed, but the policy owner sent a letter to the life insurance company indicating an intent to change the beneficiary to the name of her new husband, but she never filled out the form she was sent.  The policy owner later remarried after being made a widow by the husband she wanted to indicate as the new beneficiary some years prior.  Amazingly, even that husband died before she did.  When she did die, uncertainty existed as to who she wanted to have the money.   The court ruled that the trial judge had to find out who the policy holder really wanted to benefit.  The change of beneficiary form no longer controls once a dispute has been filed in court and the life insurance company asks the court who should get the money.  This holding also applies to other types of arrangements where money passes because of the death of an account owner or policy owner; i.e. life insurance, IRA’s, and pensions.

The Fifth District Court of Appeals has recently held that a deceased person can be held liable for punitive damages, and that the money owed could be collected against the deceased person’s probate estate.  In what the court termed as a case of first impression in Ohio, it decided that the propriety of permitting a punitive damage award to be assessed against a deceased person made more sense than denying such a result.  The court’s most compelling point, in this writer’s opinion, was that the beneficiaries of the estate should not get a distribution of money that survived going to a violated person simply because the wrongdoer died during the suit.  It makes good sense to me.  The court noted that if the decedent had not died the money would certainly have been owed.

Our own 11^th district court of appeals has just affirmed the lightning quick decision of the Geauga county probate judge to remove an executor who had a conflict of interest in and entanglement with the assets of the estate he was entrusted to administer.  The former accountant of the decedent ended up being put on her bank accounts as a survivor beneficiary just weeks before she passed away and apparently while she was being administered morphine.  The hundreds of thousands of dollars that would have gone to her beneficiaries ended up in his personal account.  The attorney handling the interests of the beneficiaries had not even asked for the removal of the executor, to which the judge stated from the bench during a hearing on a related matter “Why the heck is he still the executor ?  If you claim he took $440,000.00 from the estate before it became an estate, what’s your position on him staying as executor to begin with ?”

The moral of the story is stay on guard about who it is in a position of trust, and demand to see all of the paperwork backing up actions that are taken, and, above all, hire an attorney who doesn’t need to have the judge do the job the attorney should have been doing.  A restraining order would have been the first item of business when the last minute signature card changes came to light.  Don’t argue while the money is being consumed.  Go after it immediately.

Good job to the judge and the court of appeals to strengthen the protections that need to be in place when individuals end up with all of the money who were not even provided for in the will.

A decision was recently released by the Sixth District Court of Appeals regarding a survivorship deed and whether a conveyance by both of the survivorship tenants to a third party of less than the entire acreage in the jointly held property terminated their survivorship interest in the remaining acreage.  The Court of Appeals held that such a transfer does not terminate the survivorship status of the remaining acreage.  After the cotenants made the first transfer together, 25 acres of property continued to be held as joint with right of survivorship. Later, one of the joint owners sold only her share to a developer.  The developer thought he owned her one-half interest. However, when that joint tenant died the other joint tenant recorded paperwork at the recorder’s office to cause the “transferred” jointly held interest to be registered in her name alone.  The developer was in danger of of being frozen out so the developer claimed that when the two joint tenants conveyed part of their property, that their joint tenancy over all of the property was destroyed.  The Court of Appeals said no.  The same result would have occurred had the probate court been asked to rule on the issue.  If A and B own 50 acres joint with right of survivorship, and they sell 25 acres to a developer, the 25 acres becomes the property of the developer but the other 25 acres remains as joint with right of survivorship between A and B.  If A or B then tries to sell his or her one-half interest in the remaining 25 acres, he or she must get the agreement of the co-tenant holding right of survivorship.  In this case, the developer paid for property for which it will never hold valid title.  This is why title insurance policies are issued.

The Twelfth District Court of Appeals for Butler County recently appointed a corporate entity as guardian of the person and estate of the adult son instead of one of his parents.  The Court noted that both the mother and the father of the adult child were unable to control his actions.  This is a case which is likely to be repeated as the groundswell of younger incompetent adult and semi-competent persons begin affecting public safety forces and public social service personnel. The diagnosis of autism cases is ballooning and those children are becoming adults.  The son lived at home and was clearly incompetent but was capable enough to live at home with the oversight of his parents.  However, the strong, young adult male easily overcame the physical ability of his aging parents to control him.  This will be an area where there will be few answers.  Young children can be controlled, but with the coming of adolescence and beyond, control of the physical behavior of stronger, younger individuals by their aging parents will fail.

The Fifth District Court of Appeals for Richland County decided a probate matter concerning joint and survivor bank accounts, transfer on death bank accounts, and general durable and health care power of attorney documents.  The Court of Appeals applied a testamentary capacity analysis to execution of bank account documents and power of attorney documents.  The Court of Appeals relied upon a 1928 decision of the Ohio Supreme Court to hold that a beneficiary designation on a bank account should receive the same standard of review as that of an execution of a Will.  No other legal authority was supplied by the Court, but a reading of the Supreme Court case it cited shows that no reference exists in it to a beneficiary designation of bank account.  On such an important probate matter, the Fifth District Court of Appeals should have provided supplemental citation to hold that testamentary capacity is all that is needed for proper execution of a bank beneficiary designation form or a durable power of attorney.  Others would argue that contractual capacity is what is needed, which is a higher level of mental capacity than testamentary capacity.

Does inviting guest clergy to give an invocation at the opening of a public meeting violate the Establishment Clause of the 1^st Amendment? Not in the case of Greece v. Galloway in which the United States Supreme Court, by a 5-4 majority, held that the Town of Greece, New York did not violate the 1^st Amendment by opening its town board meetings with a prayer delivered by a local member of the clergy. The town’s practice was to invite local clergy members who were willing and available to attend a meeting. Although the clergy members delivering the prayers were all of Christian faith, it was the town’s practice to not exclude any faith, or even atheists, from delivering the opening invocation. The town further exercised no control over the content of the invocations. The Supreme Court rejected the argument that the Establishment Clause requires these opening invocations to be non-sectarian, however, the Court warned that a practice that denigrates non-believers or religious minorities, seeks converts, or which furthers some improper governmental purpose would likely not pass constitutional scrutiny.

The Third District court of appeals recently used one of my favorite remedies, the constructive trust.  Ex-husband forgot to change the beneficiary designation from his ex-wife to his children after the divorce, but the court found that language in the separation agreement could be used to let the ex-wife get the proceeds just and only long enough for the court to place them in a trust for the children.  Although this sounds like a probate case, it is not.  Probate courts have limited jurisdiction and resort sometimes must be made to general division courts to deliver justice.  Here, the probate court would be powerless to impose a constructive trust on the life insurance proceeds.  Your attorney had better know when to choose correctly between probate court and general division court for the proper relief.

The Ohio Supreme Court recently upheld a twenty thousand dollar attorney fee award against a litigant and the litigant’s attorney for frivolous conduct.  Probate court is unfortunately a place where frivolous conduct occurs because some attorneys and their clients will not accept logic.  Now that the supreme court has staked out the propriety of awarding tens of thousands of dollars against litigants and attorneys who waste the time of others, it is likely that local courts may be more likely to follow suit.  The court defined frivolous conduct as filing or pursuing a civil action that is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.  Probate court is not for putting grieving persons through pointless litigation.  If it happens, let us hope probate judges will bear down on those who abuse others and the system.

The thorny and unwieldy issue of forced medication of an involuntarily hospitalized mental patient was recently reviewed by the Tenth district court of appeals.  Not addressed is the growing problem of the necessity of such action for individuals not yet hospitalized or recently released.  The medical literature suggests that mental health problems are growing.  In cases of emergency, probate court jurisdiction is invoked to provide an answer for persons presenting as a danger to themselves or others.  But should the system be geared to require an emergency to provide a solution to chronic problems ?  Many individuals do not want to take their medication; no surprise there.  When such individuals have unilaterally been weaned long enough, the problems that led to the medication prescription start all over again.  Probate courts and the higher appellate courts must start to address this problem.  Legislation is more likely necessary.  Persons appointed to be a guardian by probate court for mentally ill individuals living in the community are placed at risk when trying to manage their ward’s medication ingestion.  Is the guardian violating the civil rights of the ward ?  Is an assault being committed ?  Seek help and have the benefit of a recommendation of a treating physician and a lawyer.

The 2^nd district court of appeals has recently ruled that he who hesitates is lost.  In what could have been a probate headache, a foreclosure case was filed against an individual who later died during the pendency of the case.  The bank had a requirement under the law to substitute the probate appointed executor of the estate to the foreclosure case.  Over a year went by and the bank took no action.  The foreclosure case ultimately proceeded, but the bank lost the right to make a claim against the probate assets because it waited too long.  The assets of the estate escaped what is known as a deficiency judgment, which can occur if the property is sold for less than what was owed to the bank.

Our very own 11^th District court of appeals has ruled that the divorced parents of an adult disabled child may be given visitation rights over the objection of the other parent if such visitation is in the best interests of the adult child.  The court further held that there is no absolute right to either parent to have visitation, and upheld the Geauga county probate court’s denial of the father’s visitation request because the adult child did not want it and the court determined it was not in the child’s best interests.  Probate court is the only court that can handle visitation issues between divorced parents of an adult disabled child.  You need a probate attorney who is able to handle such a case for you in the probate court.

The seventh district court of appeals just recently denied a motion for sanctions against an attorney who was alleged to be filing frivolous and misleading pleadings with a court.  It is high time the courts started granting sanctions against attorneys for bad behavior.  There is a certain percentage of attorneys out there, a small percentage, but a group none the less that torments the rest of the practicing bar with nonsense lawsuits and incompetent representation.  It is only when this group starts getting punished that they will stop causing damage to the community with their activity.  They get away with it and will not stop until consequences are levied.  If your lawyer does not have the sense to tell you that your case is a waste of your time and money, then that lawyer is just using you.  Why hire someone who is going to charge you good money after bad and also cause you to suffer again in the face of your enemy  when you lose?

A recent court of appeals case was issued regarding insurance coverage.  Probate administration can also concern insurance coverage if the deceased person caused an automobile accident or other act of negligence that injured another person.  Depending on when you admit the will to probate and open the estate, you may inadvertently expose estate assets to a damage claim by the injured party.  Hire an attorney who knows how the system works so you do not devalue the probate estate by making mistakes in timing of filing of documents with the probate court.

Probate administration usually involves the stay of the deceased person at a nursing home prior to death.  Sometimes it’s an outstanding bill that needs to be paid, but sometimes it is nursing home negligence.  Ohio courts have once again stood up for the patient by permitting a case of negligence to be taken to a jury.  It is now standard practice for nursing homes to get patients to sign away their right to go to court if negligence occurs; it is called an arbitration clause.  In Cantie v. Hillside the courts have again said if the nursing home fails to assert the arbitration clause early, it waives its right to raise it later.  Know what you are signing.  Hire a probate professional.

The Fourth district court of appeals for Ohio just decided a case on February 27^th that held a property owner liable in money damages to his neighbor for surface water trespass caused by negligent logging.  Gas well fracking and lumbering activities have resulted in clear cutting of trees that has caused flooding for adjoining properties.  If you are careless it can cost you money.  Probate cases often involve real estate that has been damaged near to the point in time of the death of the owner.  A good probate attorney can help recover damages for the estate beneficiaries.  Probate administration can involve much more than having the will admitted and money distributed.  Whatever problems a deceased person had with regard to his/her property do not always cease with death.  Experience in real estate law is always a must.

The Ohio Supreme Court recently decided a case that clarifies the law regarding will contest and probate litigation cases.
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