Tuesday, Oct. 13, 2015
In the Matter of the Complaint of Nancy S. Toliver v. Vectren Energy Delivery of Ohio, Case no. 2013-1807
Public Utilities Commission of Ohio
Grange Mutual Casualty Company v. World Harvest Church, Case no. 2014-1161
Tenth District Court of Appeals (Franklin County)
Chelsey Barry v. State of Ohio, Case no. 2014-1984
Fourth District Court of Appeals (Scioto County)
In re: Application of John D. Tynes, Case no. 2015-0543
Board of Commissioners on Character and Fitness
Must PIPP Customer Repay Missed PIPP Payments Before Reenrolling in Program?
In the Matter of the Complaint of Nancy S. Toliver v. Vectren Energy Delivery of Ohio, Case no. 2013-1807
Public Utilities Commission of Ohio
ISSUES:
- Does the Public Utilities Commission of Ohio (PUCO) have jurisdiction to reverse incentive credits already paid to a customer?
- Did the commission properly deny a customer’s motion to strike witness’s testimony?
- Did the commission properly grant a gas company’s motion to strike the customer’s exhibits?
- Did the utility’s counsel comply with all procedural rules?
BACKGROUND:
The Percentage of Income Payment Program (PIPP) allows qualifying individuals to pay a fixed percentage of their monthly income for their energy cost, instead of paying their gas bills according to the amount of gas used in a month. The Public Utilities Commission of Ohio (PUCO) has established requirements to govern PIPP and requires customers who receive the program’s benefits to adhere to those requirements.
To receive benefits, a PIPP customer must make full PIPP payments for 12 months while enrolled. A customer can voluntarily drop from the program at anytime, but to rejoin the program, the customer must pay the full amount of their monthly PIPP payments that were not paid when they weren’t enrolled in the program. If the customer paid their actual gas bills during those months and the actual bills were less than the PIPP payments, the customer must pay the difference.
In March 2012, Nancy Toliver of Dayton was enrolled in PIPP. The following month, she voluntarily terminated her participation in the program, after falling $180 behind in fixed payments. Vectren Energy Delivery of Ohio (VEDO) implemented her decision but advised Toliver that if she reenrolled in the next 12 months, she would have to make up the missed installment payments. In September of the same year, Toliver applied to rejoin PIPP. She was advised she would have to pay her unpaid PIPP installment payments from April until September.
Toliver filed a complaint with the PUCO against VEDO, alleging she was overcharged, forced off PIPP, and discriminated against as a low-income customer. At the PUCO hearing, the commission found that her account would be immediately subject to disconnection for failing to make up her PIPP payments if she elected to remain in the program.
After repeated opportunities, Toliver failed to indicate whether she wanted to continue in PIPP. The commission ordered VEDO to terminate Toliver’s participation in the program and reverse the PIPP benefits she received since her enrollment in September.
Toliver’s PositionToliver, who is representing herself, argues the commission “abused it[s] discretion when it overlooked [her] account balance of zero and ordered VEDO to reverse incentive credits of [$]130.74 to payments due.” She cites a section in the Ohio administrative code, which states, “The PIPP payment due shall not exceed the amount of the customer arrearage.” Toliver maintains that because her account balance is less than her missed PIPP payments she is not required to pay. She also states adding all the missed PIPP payments from the time of enrollment up until enrollment has been established is inconsistent with the commission’s order to reverse the on-time incentive credits because credits on the account are for payments made on time.
Toliver goes on to argue, based on the decision in Waterville Gas Co. v. Mason (1994), that a gas company can’t institute a collection action against a PIPP customer “when the customer was in strict compliance with the PIPP contract terms.”
She also contends that the commission failed to apply the Ohio Rules of Civil Procedure when it overruled her motion to strike VEDO’s expert witness testimony and failed to sanction VEDO. In her brief to the Court, she writes, “VEDO failed to identify any law or expert witness to be presented … and subject matter of their testimony nor was a schedule established for the completion of discovery pursuant to OAC 4901-1-26(A).”
Toliver also points out the commission abused its discretion and acted unlawfully when it overruled the examiner’s decision to qualify VEDO’s witness testimony as “not expert testimony.” Toliver maintains that the commission failed to consider another OAC provision, which requires the commission to set a pretrial order to establish dates of discovery to disclose lay and expert witnesses. She states after the settlement conference, VEDO’s counsel stated that it didn’t intend to call any expert witness and therefore a hearing was set without the preparation of the pretrial order.
Toliver also argues the commission abused its discretion when it unlawfully granted VEDO’s motion to strike Toliver’s exhibited evidence. She maintains she acted in good faith and sent VEDO a copy of the letter she received from VEDO, which confirmed her enrollment in the program. In her brief to the Court, she writes, “[Toliver] met her burden as the non moving party and as the complainant in the case and acted in good faith by submitting to the moving party any evidence prior to the submission to the commission as required by law.”
Toliver also claims that VEDO violated OAC 4901-1-08(F) when one attorney signed a certain pleading, and another attorney signed others. She states that one attorney failed to withdraw from the case before the new lawyer filed a pleading.
Commission’s Arguments
Attorneys for the commission argue based on this Court’s ruling in Toledo Coalition for Safe Energy v. Pub Util. Comm (1982) the commission has the authority to create PIPP, to promulgate rules governing the PIPP program, and to order VEDO to take action regarding Toliver’s account. They contend, pursuant to R.C. 4905.06, the commission has the power to prescribe “any rule or order” that it finds necessary to protect public safety. In the brief to the Court, they write, “Vectren must comply with the commission orders because the commission has the power and jurisdiction to supervise and regulate public utilities and to require all public utilities to furnish their products and render all services exacted by the commission.” They conclude Toliver’s argument that the “Ohio Development Service Agency has jurisdiction to determine these issues” is flawed.
They also point out the commission has broad discretion over the conduct of its proceedings. They write “[I]t is well settled that pursuant to R.C. 4901.13, the commission has the discretion to decide how, in light of its internal organizations and docket considerations, it may best proceed to manage and expedite the orderly flow of its business, avoid undue delay and eliminate unnecessary duplication of effort.”
They argue Toliver’s contentions that the commission abused its discretion and that VEDO failed to comply with a commission ruling lack merit and provide no basis to reverse the commission’s order. They state Toliver could have used the commission discovery rules to obtain a list of VEDO’s witnesses, but she waived that right when she agreed there would no exchange of discovery. They also dispute Toliver’s assertion that the commission failed to hold a prehearing conference and require VEDO to disclose its witness because “[a] prehearing is discretionary and none was sought.”
The commission’s attorneys also argue the commission properly granted VEDO’s motion to strike Toliver’s exhibits. They point out Toliver had the opportunity to introduce her exhibits at the hearing but failed to do so. They further maintain documents submitted after a hearing may not be considered by an administrative agency.
In response to Toliver’s argument concerning substitution of counsel they maintain that the OAC simply requires that one attorney be designated as counsel of record when the party is represented by multiple attorneys. “Therefore, Toliver has not shown any abuse of the commission broad discretion to regulate its proceeding”, they conclude.
Gas Company’s Response
The Ohio Supreme Court approved VEDO’s request to intervene as an appellee in this case and to file a brief. Attorneys for VEDO assert that the commission reasonably and lawfully applied its rules and policies to Toliver’s case. They note that the rules require customers to make up missed payments to remain eligible for the program. They contend although the rules provide missed payments to be repaid “shall not exceed the amount of the customer’s arrearages, the definition of arrearage does not include past due monthly PIPP payments.”
They go on to argue that the commission could interpret its rules to include payments missed while exiting and entering the program. In the brief to the Court they write, “The rules plainly require customers to make up missed payments, … [a]nd before it ever issued the order in this case, the commission had interpreted the rules to require customers who depart and then reenter to the program to make up the avoided payments.”
- Maurice Wells
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Nancy S. Toliver, pro se: 937.278.4407
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General Office: Katherine Johnson, 614.466.4395
Representing Vectren Energy Delivery of Ohio: Mark Whitt, 614.224.3911
Must Insurer Pay $1 Million Toward Verdict of Toddler Beaten in Church Daycare?
Grange Mutual Casualty Company v. World Harvest Church, Case no. 2014-1161
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Does an abuse or molestation exclusion clause from a commercial insurance policy permit an insurer to deny coverage for any damages assessed against a company and its employees in a lawsuit claiming a form of abuse?
- If the exclusion does not specifically exclude damages imposed on the employer held responsible for the acts of its employee, does the insurer have to pay the damages claim?
- If the insurer must pay the company’s claim for damages based on the act of the employee, does it also have to pay the entire attorney fees and post-judgment interest award assessed in a lawsuit against the employer and the employee?
BACKGROUND:
Grange Mutual Casualty Company seeks to reverse an appeals court decision requiring it to pay $1 million toward a $3.1 million verdict against World Harvest Church for the severe beating of a 2 ½-year-old child by a church daycare worker. Grange’s obligation to pay hinges on the interpretation of an “Abuse or Molestation Exclusion” clause added to two commercial insurance policies World Harvest Church purchased. The parties note this will be the first time the Ohio Supreme Court will interpret an abuse or molestation exclusion and several “friend of the court” briefs have been filed on both sides of the case.
World Harvest Church operates a preschool program. In May 2006, Michael and Lacey Faieta sued World Harvest charging daycare teacher Richard Vaughn assaulted their two-and-a-half year old son by beating him on the rear and back of the legs with a ruler. The Faietas also claimed World Harvest failed to investigate their claims, so they asserted that while Vaughn committed assault and battery on their child, the church negligently hired and supervised Vaughn; the church was responsible for Vaughn’s assault; and both intentionally inflicted emotional distress (IIED) on them and their child.
Grange provided a defense for World Harvest as part of its insurance coverage but advised the church there may be claims not covered by its policy and told the church it should consider getting its own counsel. The church did, and entered into a joint defense agreement with Grange to challenge the claims by the Faietas.
At the trial, the church admitted it was ultimately responsible for Vaughn’s conduct. The jury concluded that Vaughn committed battery; the church was negligent in its supervision of Vaughn; and Vaughn “and/or” World Harvest intentionally inflicted emotional distress on the family. The jury awarded the Faietas more than $6 million, but the trial judge lowered the damages based on state caps to $2.9 million. It found Vaughn was solely liable for about $82,000 and the church secondarily liable for Vaughn’s act. It found the church solely liable for the remaining amount.
World Harvest appealed the judgment and lost in the Tenth District Court of Appeals. The church agreed to settle the case for about $3.1 million, the $2.9 million plus $230,000 in post-judgment interest.
In 2009 World Harvest filed a complaint against Grange alleging “bad faith” in its defense of the church at the trial and refusing to reimburse the church for the $3.1 million it paid the Faietas. The trial court ruled that Grange did not have to pay the $1.6 million in punitive damages awarded, but did have to reimburse the church for the $500,000 in damages along with the $700,000 in attorney fees and the $230,000 in post-judgment interest. Grange appealed to the Tenth District, which ruled it only had to pay $82,000 in damages, but since it owed for damages, it also owed for the attorney fees and interest. Grange appealed that ruling for more than $1 million to the Supreme Court, which agreed to hear the case.
Grange Argues Exclusion Blocks All Payments
Attorneys for Grange argue the Tenth District made an error by finding that because World Harvest admitted it was vicariously liable for the IIED Vaughn caused, then the insurance policy provided coverage for the $82,000 damages assessed to Vaughn by the trial court. Grange in its brief writes that the abuse or molestation exclusion denied a policyholder coverage for any bodily injury arising out of: “the abuse by anyone of anyone in the care and custody of the insured” and for the negligent hiring and supervision of the abuser. The Grange policy contained an industry standard abuse or molestation exclusion, developed by insurance consultant ISO, and that while the Ohio Supreme Court has never ruled on one, many state and federal courts have found no coverage for bodily injury arising out of the abuse of any person in the insured’s care, custody, or control. The attorneys argue it does not matter if the employer was directly liable or indirectly liable for the abuse. They also state that the appellate court agreed the exclusion did not cover the damages assessed to the church for the actual physical harm Vaughn caused, but for the IIED that sprang from the abuse. They assert that the vicarious liability, also known as respondeat superior, for any of the damages arising about the abuse are not covered. Moreover, if the abuse is not covered by the policy, then the insurer does not owe the attorney fees and post-judgment interest because the policies stated that the insurer only pays those for judgments based on damages it does insure.
World Harvest Contends It Was Covered
Attorneys for World Harvest concede that when the jury found the church was negligent in its hiring and supervising of Vaughn, the abuse or molestation exclusion applied providing it no coverage from Grange. They also noted that if World Harvest would have been found to have committed the IIED itself, the church would not have received coverage because of another exclusion in the Grange policy. However, the church was found responsible for Vaughn’s IIED and the policy does cover the church because the abuse or molestation exclusion does not specifically exclude vicarious liability.
In the brief, the church’s attorneys point out the first section of the clause excludes from payment the direct liability of the abuser, and does not address any vicarious liability of the employer. The second section excludes coverage for the employer’s own misconduct of negligent employment, negligent supervision, or other actions. “If Grange intended this exclusion to be all-inclusive, and thus exclude vicarious liability, it could have simply omitted the entire second section since Grange argues that the first section of the exclusion removes liability for all abuse or molestation,” the brief states.
Both World Harvest and Grange point to the Supreme Court’s 2009 Safeco Ins. Co. v. White decision for support of their arguments. Attorneys for World Harvest note the case found that while a policy can exclude coverage for an intentional act by someone covered under the policy (in that case a teenage son), the act is considered an “accident” in the mind of the policyholders (in that case the parents). In this case, the church attorneys contend that while Vaughn’s act is excluded as intentional, the church’s act is still seen as an accident because Vaughn was not directed to abuse the child and no member of management was involved in the beating. They contend the exclusion cannot “lump together” Vaughn’s acts with the church’s, and the appellate court was correct in finding employers expect coverage for the vicarious liability of intentional acts of their employees.
Friend-of-the-Court Briefs
Interest groups on both sides of the case filed amicus curiae briefs. The Ohio Association of Civil Trial Attorneys, which represents insurance companies and other businesses in court, filed a brief supporting Grange, while the Ohio Insurance Institute (OII), and the Property Casualty Insurers of America (PCI) support the company’s position in a joint brief.
The Ohio Association of Justice, which represents plaintiffs’ attorneys, and the United Policyholders, which represent insurance consumers, filed briefs in support of World Harvest.
The OII/PCI brief argues that the standard exclusion form Grange and most insurers across the nation use was designed with vicarious liability in mind and argues a provision “that excludes coverage of liability for intentional injuries necessarily excludes coverage of all liability.” The groups state the Supreme Court’s decision is necessary to help accurately determine the policy language for future cases. Similarly, the Ohio Association of Justice notes the term “abuse” is not defined in the policy, and the Court needs to define it so future purchasers of the coverage know what is and is not excluded.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Grange Mutual Casualty Company: Irene Keyse-Walker, 216.592.5000
Representing World Harvest Church: Robert Rutter, 216.642.1425
Has Person Who Hid Evidence of “Unmistakable Crime” Tampered with Evidence?
Chelsey Barry v. State of Ohio, Case no. 2014-1984
Fourth District Court of Appeals (Scioto County)
ISSUES:
- Does a person who hides evidence of an “unmistakable crime” commit tampering with evidence when stopped later by police?
- When considering a tampering with evidence charge, may a jury be instructed to find that a defendant knew an investigation was likely if she knew she was committing an “unmistakable crime”?
BACKGROUND:
It was February 28, 2013, and Chelsey Barry was driving south on U.S. Route 23 with three men in a vehicle, heading toward Huntingon, West Virginia. An Ohio State Highway Patrol trooper sitting in Lucasville heard Barry drive by and stopped the vehicle for the loud noise and driving on the fog line. He said he smelled marijuana coming from inside the vehicle. After hearing conflicting accounts from Barry and the passengers, the officer arrested them and searched the vehicle.
They were taken to a patrol post where Barry eventually revealed that she was carrying drugs. She said the men told her before they left Middletown to hide a bag of heroin inside her body. She later removed the drugs under the supervision of local female police officer. The bag held a little more than 56 grams of heroin, or about 560 hits, according to the state’s brief. Barry testified that the men were going to pay her in drugs for transporting the heroin.
A jury convicted Barry for trafficking, possession, conspiracy to traffic drugs, and tampering with evidence. The trial court sentenced Barry to six years in prison for the first three crimes, which were merged, and three years for the tampering offense – to be served consecutively.
Appeals Filed
Barry appealed the tampering conviction to the Fourth District Court of Appeals, which rejected her claims. The court also determined that the decision conflicted with State v. Cavalier (2012) from the Second District Court of Appeals and notified the Ohio Supreme Court.
Barry appealed to the Ohio Supreme Court, which accepted her case and combined the appeal with the certified-conflict case for briefing.
Jury Instruction
At Barry’s trial, the court told the jury that Barry was guilty of tampering with evidence if the jury found she had concealed evidence of an “unmistakable crime,” and stated, “When an offender commits an unmistakable crime, the offender has constructive knowledge of an impending investigation of the crime committed.”
The concepts of “unmistakable crime” and “constructive knowledge” arose in a 2005 ruling, State v. Schmitz, from the Tenth District Court of Appeals.
Tampering Statute
To be convicted of tampering with evidence, state law requires:
- knowledge of an official proceeding or investigation in progress or likely to be instituted
- alteration, destruction, concealment, or removal of the potential evidence
- with the purpose of impairing the potential evidence’s availability or value in the proceeding or investigation
Barry’s Arguments
Attorneys for Barry assert that the Scioto County prosecutor used the Tenth District’s ideas of “unmistakable crime” and “constructive knowledge” in its arguments and that the trial court instructed the jury on those concepts in the jury instruction. Then the Fourth District relied on Schmitz in its ruling, and that approach ignored the Ohio Supreme Court’s decision in State v. Straley (2014), they contend.
“In Straley, [the] Court held that a person is guilty of tampering only when she has knowledge of a likely investigation directly related to the hidden evidence,” they write in the brief to the Court. “The Fourth District’s ‘unmistakable crime’ doctrine bypasses Straley by automatically imputing ‘constructive knowledge’ of an investigation when a person knows she is committing an act that is unquestionably criminal.”
They argue that the use of those terms in the jury instruction misled the jurors because they were told that Barry knew an investigation was likely – the first element of the tampering statute – if she merely committed a crime that was unmistakable to her. This erroneous instruction affected the outcome of her trial, they maintain.
They claim that the state offered no evidence at trial to show that Barry hid the drugs knowing that an investigation was likely. They ask the Court to set aside Barry’s conviction on this charge.
Prosecutor’s Response
Attorneys from the Scioto County Prosecutor’s Office counter that five appellate courts in the state have relied on the “unmistakable crime” concept in tampering with evidence cases, despite the decision in conflict from the Second District in Cavalier.
They assert that Straley doesn’t apply in this case because its impact is “limited to its unusual facts” and didn’t deal with the knowledge element of this crime. The “constructive knowledge” standard relied on by the Fourth District is equivalent to the meaning of the “knowing” mental state defined in state law and required for a tampering with evidence conviction, they contend.
They add that Straley requires a factual determination of the defendant’s intent at the time of the alleged tampering and the likelihood of an official investigation.
“[T]hough the initial act of concealment started in Middletown, Ohio, [Barry] continued to conceal the contraband drugs well into the investigation, after the traffic stop, after she was placed in the cruiser, after questioning commenced, even after being handcuffed and told by [the trooper] that he would obtain a body cavity search warrant if necessary,” they write in the brief to the Court. “[Barry] did not voluntarily make an admission that she was concealing heroin until after being transported to the Patrol Post and being separated from the other passengers in the vehicle.”
They maintain that the evidence shows Barry concealed the drugs with the constructive knowledge of an unmistakable crime and hiding the heroin continued after the investigation began. They add that the jury instruction wasn’t misleading, but instead was a correct statement of law and appropriate to the facts of this case. The conviction for tampering with evidence should be upheld, they conclude.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Chelsey Barry from the Ohio Public Defender’s Office: Stephen P. Hardwick, 614.644.1622
Representing the State of Ohio from the Scioto County Prosecutor’s Office: Jay S. Willis, 740.529.1118
Law School Student with Felony Record Asks to Apply for Admission to Practice Law
In re: Application of John D. Tynes, Case no. 2015-0543
Board of Commissioners on Character and Fitness
The board that reviews the character and fitness of those seeking to be admitted to practice law in Ohio doesn’t recommend the approval of John D. Tynes’ application to take the bar exam and wouldn’t permit him to reapply in the future.
In late 1990s, Tynes worked for the U.S. Army and lived in Virginia. While visiting sexually-oriented online chat rooms in 1998, Tynes contacted people he believed to be girls under the age of 15. He shared photos, sometimes explicit, with them, and they also provided photos to him. During an attempt to meet one of the girls from a chat room in Las Vegas, Tynes was arrested by the FBI. Earlier that year, he had also tried to set up meetings with girls in two other cities to have sex with them. Neither agreed to meet Tynes.
Tynes was charged in military court. He was convicted of conduct unbecoming of an officer, four counts of attempting to persuade a minor to engage in sex, two counts of traveling interstate with the intent to have sex with a minor, one count of knowingly possessing child pornography, and one count of knowingly receiving child pornography. He was sentenced to 30 months and served 19 months.
Afterward, Tynes, his wife, and four children moved to Arkansas. He registered, as required, as a sex offender in the states in which he lived following his conviction.
Tynes then applied to various law schools and was accepted by Salmon P. Chase College of Law at Northern Kentucky University. Tynes fully disclosed his conviction and imprisonment in his applications. The requirement that he register as a sex offender in Ohio, where he lives, expired in November 2011.
Board’s Conclusions
The Board of Commissioners on Character and Fitness concludes in its report to the Ohio Supreme Court that Tynes didn’t show clear and convincing evidence that he has the character, fitness, and moral qualifications to be considered for admission to the Ohio bar.
“He engaged in conduct that demonstrates a disregard for the law and, more importantly, a complete and utter disregard for the health, safety and welfare of others — namely, vulnerable, female children,” the board states.
They contend that allowing a person convicted of sexual offenses to hold “the position of trust” as an attorney would undermine the public’s perception and confidence in the legal profession.
Applicant Wants Chance to Practice Law
While attorneys for Tynes take no issue with most of the board’s report, they ask the Court to give Tynes, now in his 60s, the opportunity to take the bar exam. They note that he has taken full responsibility for his actions 17 years ago and hasn’t been charged with any other crimes since that time. They add that two mental-health professionals have relayed that they see no reasons that Tynes couldn’t practice law, that the public wouldn’t be at risk, and that he is unlikely to repeat his 1998 behavior.
Explaining that Tynes decided to go to law school because he wants to assist people affected by the prison system, they argue he has been punished and has been rehabilitated, and he will be an example of that rehabilitation as a lawyer.
“Just as an individual who once possessed the character and fitness to practice law may become unfit to practice, so too can an individual who was once unfit become worthy,” they write in the brief to the Court.
They cite disciplinary cases in which practicing attorneys committed sexual offenses, but weren’t disbarred. Instead, they received indefinite suspensions and were able to seek reinstatement to the legal profession. Noting that Tynes was cooperative in the application process and testified openly about his conduct, they ask the Court to reject the board’s recommendation and instead allow Tynes to apply for the Ohio bar, either now or at some time in the future.
Bar Association Argues Applicant Lacks Character Requirements
Attorneys for the Cincinnati Bar Association note that Tynes didn’t seek counseling until November 2013 after a hearing before the bar association’s admissions committee. They also claim that Tynes has made statements at recent hearings in which he minimizes his actions in 1998.
“There are simply some actions that should preclude an individual from ever practicing law in the State of Ohio,” they write in the brief to the Court. “Applicant’s case is the poster child for such a situation.”
The cases cited by Tynes don’t support his appeal, they assert, because he isn’t a practicing lawyer and different rules apply to practicing attorneys than to attorney applicants. They conclude Tynes hasn’t shown clear and convincing evidence that he has the character, fitness, and moral qualifications to become a lawyer.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing John D. Tynes: George D. Jonson, 513.241.4722
Representing the Cincinnati Bar Association: Paul W. McCartney, 513.345.5500
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