 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Britton v. Smythe9/21/2000
of bad faith against Smythe, Cramer. This statement necessarily arises out of Jones' representation of plaintiff in the Lamb litigation and it might be considered adverse to her current interests.
Our discussion here is not meant to imply that any of the three attorneys engaged in improper or unethical conduct by swearing out three affidavits. The affidavits are abstract enough (for example, Coakley's statement that he was unable to settle the Lamb case) that it cannot be said that the statements contained therein were patently adverse to plaintiff's interests. Nonetheless, the court could reasonably, and out of an abundance of caution to plaintiff, find the affidavits were potentially adverse to plaintiff's interests and strike them on that ground. The court did not abuse its discretion. The first cross-assignment of error is overruled.
V.
The second cross-assignment of error relates to the court's finding that Smythe, Cramer's legal defense program is a form of insurance subject to interpretation to insurance case law. Smythe, Cramer argues this was a gratuitous declaration by the court because it had no bearing on the applicable issues of law Smythe, Cramer conceded contract principles relating to insurance law would apply, so the court had no reason to make a declaration concerning the nature of the legal defense program.
In PhysiciansIns. Co. of Ohio v. Grandview Hosp. and Medical Ctr. (1988), 44 Ohio App.3d 157, the court of appeals cited to American Nurses Assn. v. Passaic Gen. Hosp. (1984), 192 N.J. Super. 486, 494-495, 471 A. 2d 66, 70-71, affirmed (1984), 98 N.J. 83, 484 A. 2d 670, for the following proposition:
As a matter of common understanding, usage, and legal definition, an insurance contract denotes a policy issued by an authorized and licensed insurance company whose primary business it is to assume specific risks of loss of members of the public at large in consideration of the payment of a premium. There are, however, other risk-shifting agreements which are not insurance contracts. These include the customary private indemnity agreement where affording the indemnity is not the primary business of the indemnitor and is not subject to governmental regulation but is merely ancillary to and in furtherance of some other independent transactional relationship between the indemnitor and the indemnitee. The indemnity is, thus, not the essence of the agreement creating the transactional relationship but is only one of its negotiated terms.
The court had virtually no evidence from which it could make a determination that the legal defense program constituted an insurance program. Although many parts of the legal defense program resemble an insurance program, there is no evidence to show that the legal defense program is the primary business of Smythe, Cramer, intended to assume specific risks of loss of members of the public at large in consideration of paying a premium. There is also no evidence to show how Smythe, Cramer benefits from the legal defense program in a monetary fashion. In fact, the evidence tends to suggest that the legal defense program is more in the nature of a private indemnity agreement between Smythe, Cramer and its realtors than an insurance program. Our holding here is not a definitive ruling on the issue. We simply sustain the second cross-assignment of error on grounds that the court lacked sufficient evidence to find the legal defense program constituted a form of insurance subject to regulation by the department of insurance.
Judgment affirmed in part, reversed in part and remanded.
This cause is affirmed in part, reversed in part and remanded to the lower court for further
Page 1 2 3 4 5 6 7 8 9 10 11 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|