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Trust but verify insurance policy coverage before it’s too late


July 9, 2018

Nick BuzzyCraig Marvinney

 

 

 

 

 

 

 

You trusted your insurance agent with your company’s insurance coverage. What could go wrong? The Ohio Supreme Court recently made it clear that upon receiving that new policy or renewal you must, as President Ronald Reagan used to say, “trust, but verify.”

The Ohio Supreme Court puts the onus on the policyholder to educate himself/herself of policy exclusions before an insurance company denies coverage or other problems arise. The ruling starts the clock on the time period of when one may sue for any agency errors, omissions, or professional malpractice claims once an insurance company issues the written policy of insurance.

The time in which a plaintiff can file a lawsuit is the statute of limitations. This varies depending on the type of case, i.e. personal injury, contract dispute, etc. After the statute of limitations expires, a plaintiff cannot bring suit to recover damages. In Ohio, the statute of limitations normally begins when an injury or damage occurs. One exception to this general principle is the “delayed-damage rule.” Under this rule, the statute of limitations period does not begin until the wrongful conduct causes actual damage.

In LGR Realty, Inc. v. Frank and London Insurance Agency, the Supreme Court put the “delayed-damage rule” in the spotlight. A business made a claim under its insurance policy to defend a significant lawsuit involving one of its properties. The insurance company denied coverage on the basis of an exclusion provision for that property in the policy. As a result, the business paid over $420,000 in attorney fees and expenses over the next few years to defend the lawsuit. These were the “delayed damages.”

The business then filed a professional malpractice lawsuit against its insurance agent for these fees and expenses. It claimed that the agent neglected to make sure the particular property was insured. The trial court dismissed the lawsuit because it was filed more than four years after the policy took effect. This exceeded the statute of limitations. The Ohio Court of Appeals reversed the trial court and instead followed the delayed-damage rule. The appeals court reasoned that the business was not actually harmed until the insurance carrier denied the claim thereby leading the business to pay significant attorney fees in defending the lawsuit.

The Ohio Supreme Court reversed the appeals court, ruling that the delayed-damage rule does not apply in professional malpractice claims. The court held that the statute of limitations period begins when an individual or business is issued an insurance policy. The court stressed that it was the policyholder’s duty to determine whether there were any policy exclusion errors.

The LGR decision means that individuals and businesses should check the new or renewed policy with their agent to ensure all the coverages intended actually exist in the new policy at or near the time the policy is received. The decision tightens the timeframe for an individual or business to seek recourse against an insurance agency if the agent fails to disclose all the coverages are what were intended.

Individuals and businesses should consult with counsel to make sure there are no uncertain areas of coverage or exclusions in their policies. Otherwise, if a claim arises it may be too late to seek coverage or file a lawsuit if an insurance company denies coverage for the claim.

Craig Marvinney is a partner at Walter | Haverfield who focuses his practice on business, commercial, insurance and complex litigation. He can be reached at cmarvinney@walterhav.com or at 216-928-2889.

Nick Buzzy is a former attorney at Walter | Haverfield who focused his practice on litigation.

 

 

 

Walter| Haverfield Expands its Litigation and Real Estate Teams


June 29, 2018

Committed to its mission of offering personalized service to our growing number of clients, Walter | Haverfield has hired Nicholas Buzzy to its Litigation team and Gail Bisesi to its Real Estate team.

Buzzy is a dedicated, dynamic attorney with experience in wide-ranging complex litigation. The Northeast Ohio native has successfully defended multiple cases at trial, valued at more than six figures. That includes personal injury as well as business interruption cases.

“I’m passionate about my work as a litigator and proud of the success I’ve had thus far in defending big cases,” said Buzzy. “I now have the opportunity to continue to do what I love on an even bigger scale with a strong, hard-working team, and I’m very thankful for that.”

Buzzy has also defended a variety of corporations in products liability cases as well as individuals on a variety of disputes. Buzzy most recently worked at the Cleveland-based law firm of Gallagher Sharp as a litigation attorney. Prior to that, he served as an assistant prosecuting attorney for Summit County, Ohio.

Bisesi brings more than two decades of real estate experience to Walter | Haverfield. She joins the firm as a paralegal and previously worked at law firms, in banks and with developers in the Northeast Ohio region.

“I was looking for a firm that has a strong real estate practice group, and that’s why I sought out Walter | Haverfield,” said Bisesi, who is also a Northeast Ohio native and enjoys working at the Cleveland Film Festival each year.

“Our goal is to find highly skilled and qualified individuals to serve our clients in ways that align with our strong values and high standards,” said Ralph Cascarilla, managing partner of Walter | Haverfield. “Nick and Gail will be able to deliver that superior service, and I’m happy to have them on board.”

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public entities and high net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Our track record has allowed us to sustain year-after-year growth. Walter | Haverfield has more than doubled in the past decade to become one of Cleveland’s top ten law firms. Today, our team of nearly 80 attorneys is focused primarily in the areas of corporate transactions, real estate, intellectual property, labor and employment, tax and wealth management, liquor control law, litigation, public law and education.

 

No More Fair Share Fees


June 28, 2018

Sara FagnilliOn June 27, 2018, the United State Supreme Court in Janus v. AFSCME, overruled its 1977 decision of Abood v. Detroit Board of Education, and held that unions may not charge “agency fees” (known as “fair share fees”) to public employees who choose not to join the union. The Court found that payment of fair share fees by non-union members violates the First Amendment, which includes the right to be free from compulsion to engage in speech contrary to one’s beliefs.

The Court rejected a number of arguments in support of Abood. Notably, the Court dismissed the “risk of free riders.” That means the risk of non-union members utilizing union benefits without paying dues, finding that risk insufficient to overcome First Amendment concerns. The Court reasoned that unions could implement other strategies to cover the cost of grievance or arbitration representation for non-members, thereby eliminating that risk. Finally, the Court expressed little sympathy for any potential financial impact on unions who “have been on notice for years regarding this Court’s misgivings about Abood.”

The decision was not unanimous and Justice Kagan authored the dissent, which was critical of the majority’s failure to recognize the potential economic impact on unions when they are already not funded well enough to carry out their duties.

Public employers should consult with labor counsel to determine the best course of action regarding the impact of the Janus decision and how to handle fair share fees for non-union employees, which have now been found unlawful by the Supreme Court.

Sara Fagnilli is an attorney at Walter | Haverfield who focuses her practice on public law and litigation. She can be reached at sfagnilli@walterhav.com and at 216-928-2958.

 

Looking to Grow Through Acquisitions? Five fundamentals that often go overlooked


 

When business is good, an acquisition lures the prospect of moving your company to the next level. But even veteran dealmakers sometimes overlook critical elements that can derail the best intentions. The following are five elements that should always be considered in an acquisition:

  1. Preparation – Whether the target company is a competitor or a complement, take a step back and ask if it truly fits the strategic direction of your business. Too many deals are made on emotion. Before talking numbers, develop a business plan that details how the new company will merge with yours. Be sure to list the pros and cons. Most importantly, make sure the executive team and your board of directors have a clear strategic acquisition plan in place on an annual basis.
  2. Communications – Seek outside perspectives and lean on advisors for constructive feedback. Good ones can be objective without internal blinders. This can include consultants, attorneys, accountants, IT, operations, sales managers, suppliers and strategic partners. Ensure that your executive team is fully engaged.
  3. Finance planning – Before determining the best way to finance the deal, develop a post-integration forecast and PandL. Cash and equity are not always the preferred method of payments. Debt from a multitude of sources can carry significant tax and cash-flow benefits. Leverage financial, legal and tax advisors for alternative strategies.
  4. Finding synergy – Before the deal closes, develop a six-month integration plan that uncovers as many efficiencies as possible. Too often, newly acquired companies trudge on in a perpetual silo without revealing the many opportunities they present. This includes shared resources, supply chain, operational efficiencies and workforce integration.
  5. Create an audit – A year after the deal, take a critical look at the entire process. This provides a second chance to uncover additional efficiencies that were not initially apparent. It also identifies critical lessons and the ability to improve the process during your next deal. Done well, there will be a next deal.

Ted Motheral is a partner with Walter ǀ Haverfield’s Corporate Transactions group. He be reached at tmotheral@walterhav.com or at 216.928.2967.

 

Another Walter | Haverfield attorney graduates from in-depth leadership program


June 14, 2018

 

Ben Chojnacki, an attorney who focuses his practice on public law, sports law and litigation, is a 2018 graduate of the Cleveland Bridge Builders. Chojnacki is the third Walter | Haverfield attorney to complete the 10-month long program, which teaches participants how to become effective leaders and create meaningful change around a civic issue impacting Northeast Ohio.

Chojnacki is one of 59 graduates in this year’s class. Others include individuals from the non-profit, public and private sectors. All participants were required to go through a thorough application and vetting process.

“Bridge Builders provided the perfect opportunity for me to give back to the community and develop sustainable, long-term relationships with like-minded professionals,” said Chojnacki, who currently serves as the assistant law director for the village of Cuyahoga Heights. “It also allowed me to get back to doing what I love – volunteering.”

As part of the program, participants applied their skills to assist a local community organization in boosting its strategic efforts and overall effectiveness. Those organizations included the Positive Coaching Alliance, International Women’s Air and Space Museum, the Cleveland Metropolitan Bar Association and Signature Health, among others.

“I learned a lot about the challenges that non-profits and social service organizations face in achieving long-term success in the civic realm,” added Chojnacki, who worked with Signature Health, an opioid addition and behavioral healthcare services provider in Northeast Ohio. “I also became more aware of the strategies successful civic organizations have employed to ensure they have a long-lasting impact on Northeast Ohio.”

Five Things You Should Know When Opening a Restaurant


June 7, 2018

Emily O'Connor

John Neal

 

1. Check the city’s zoning code
When you are selecting the location of your new restaurant, make sure to check the local zoning code to ensure that your restaurant will be permitted to operate

in that location. Take a look at that code to not only confirm that your use is allowed, but that there are no other requirements you need to meet. That may include a required number of parking spaces or signage restrictions.

2. Obtain a food service operation license
This will be one of the first steps you take in opening your restaurant. In Ohio, you will first need to submit your application along with your floor plans and equipment list. Make sure to look at the checklist provided in your application to ensure you are meeting all of the requirements. Once your plans have been approved, you can apply for your food service operation license. You will need to schedule an inspection with the local health department inspector before the license can be issued. This can be one of the most time-consuming tasks, so budget significant time.

3. Obtain a liquor permit
If you would like to serve alcohol at your restaurant, then you will need to obtain a liquor permit. Cities and towns have quotas on how many liquor permits can be issued in the area. If there is not one available, you will need to obtain one from another locale and file a transfer application. The process can take time so you will want to look into applying for a liquor permit as soon as you have your lease, and sometimes even before. The liquor permit does not issue until after a final inspection, which will occur right before the restaurant opens. So, the timing can be stressful. It is important to start the process as soon as possible.

4. Are you looking to have an outdoor patio?
If you are looking to provide an outdoor patio for your guests, you will likely need to get a permit from the city or town where your restaurant is located. They may require that you sign a waiver and provide copies of your food service operation license, liquor permit and certificate of liability insurance. Your liquor permit will need to include the patio area. It can take a couple months to obtain approval for the patio so make sure to look into your city or town’s requirements early on and plan accordingly.

5. Are you looking to provide music or some form of entertainment at your restaurant?
If so, you may need another license from the city or town where your restaurant will be located. For instance, in the city of Cleveland, you need to obtain a Consolidated Entertainment and Amusement Device License if you want to have any of the following activities at your restaurant: billiard room, bowling alley, dance hall, music, coin-operated amusement devices or roller rink. While obtaining the license can be fairly straightforward, you will want to budget enough time to obtain the city or town’s approval.

Emily O. Vaisa is an attorney in the liquor control and real estate practice groups. She assists clients in obtaining new liquor permits with the Ohio Division of Liquor Control and represents liquor permit holders in proceedings before the Ohio Liquor Commission. Emily can be reached at evaisa@walterhav.com or at 216-928-2909.

John Neal is head of the liquor control group at Walter | Haverfield. He focuses his practice on state and federal liquor permit licensing as well as the licensing of Ohio’s new medical marijuana industry. He can be reached at jneal@walterhav.com or at 216-619-7866.

Federal program to offer webinars on website accessibility


May 23, 2018

 

Christina Peer

The U.S. Department of Education’s Office for Civil Rights (OCR) has launched an initiative to make more websites and online programs accessible for individuals with disabilities. OCR will offer technical assistance and design suggestions via a series of webinars to schools, districts, state education agencies, libraries, colleges and universities. The webinars are intended for IT professionals. Vendors are encouraged to attend as well.

The first webinar will be offered on the following dates:

Webinar I:

May 29, 2018 at 1 pm EDT

June 5, 2018 at 1 pm EDT

June 12, 2018 at 1 pm EDT

If you interested in participating in any of the webinars, email the OCR here. In the email, include your name, preferred webinar date, contact information and whether you have accessibility needs.

OCR is also available to host personalized interactive webinars with individual recipients. If you are interested in a personalized session, email the OCR here.

Dates for future webinars will be posted. Any additional information can be found on OCR’s website.

Christina Peer is chair of the education group at Walter ǀ Haverfield. She routinely counsels school districts on state and federal laws related to students with disabilities. She also provides counsel to boards of education on student discipline, collective bargaining agreements, First Amendment, public records requests and social media issues.andnbsp; Christina can be reached at cpeer@walterhav.com or at 216-928-2918.

Do Your Homework Before Selecting a Brand or Company Name


May 16, 2018

 

Prior to introducing a brand name in the marketplace, it is important to make an informed business decision by doing your due diligence. Any lack thereof could cost time and money, and risk embarrassment.

For example, in April 2017, Starbucks® introduced a color and flavor-changing blended beverage with the name “Unicorn Frappuccino.” This colorful beverage was an instant “instagramable” success that was featured in thousands of postings. However, this widespread social media presence of the Starbucks® Unicorn Frappuccino brought some unwelcomed attention along with it in the form of an infringement lawsuit.

Montauk Juice Factory, Inc. and The End Brooklyn (plaintiffs) filed suit against Starbucks® alleging that by selling Unicorn Frappuccino beverages, Starbucks® infringed on their colorful beverage known as “Unicorn Latte.”

The plaintiffs provided evidence that in December 2016, the Unicorn Latte had begun appearing in traditional media outlets, coupled with advertising efforts and social media exposure. In an attempt to federally protect their intellectual property rights, the plaintiffs applied to register the name UNICORN LATTE with the United States Patent and Trademark Office (USPTO) in January 2017. After its filing, this pending trademark application (now, U.S. Registered mark 5,436,103) was publicly accessible on the USPTO’s database.

Nevertheless, Starbucks® launched its Unicorn Frappuccino, albeit as a limited release, in April 2017. Starbucks® commented that the Unicorn Frappuccino was inspired by “the fun, spirited and colorful unicorn-themed food and drinks that had been trending on social media.” However, this Unicorn Frappuccino, much like the plaintiffs’ Unicorn Latte, was brightly colored and prominently featured blue and pink colors with a color-powdered topping. It also had the word “unicorn” in its name. The plaintiffs and Starbucks® have since reached a settlement.

But, this scenario raises the question of whether Starbucks® conducted a sufficient amount of due diligence prior to the launch of its Unicorn Frappuccino? Perhaps, Starbucks® knew of the Unicorn Latte trademark application and decided to accept any ensuing risk that followed the launch of an allegedly similar product?

Most often, this type of cost/benefit analysis is purely a business decision. However, it is much more prudent to make an informed business decision by conducting a knock-out or clearance search before selecting a brand, product or company name.

Therefore, it is worthwhile to contact an experienced trademark attorney to assist in making these types of informed business decisions before selecting a brand, product or company name. Walter | Haverfield regularly counsels clients worldwide on these exact types of decisions.


Kevin Soucek is an attorney at Walter | Haverfield who focuses his practice on intellectual property. He can be reached at ksoucek@walterhav.com or at 216-619-7885.

Planning Best Practices as a Catalyst for Economic Development


May 14, 2018

Economic development is often associated with TIFs, CRAs, JEDDs, and the alphabet soup of other acronyms used by local governments to convince developers to choose their community as the site for new development. But establishing intuitive, user-friendly land use and development policies and procedures is an equally important and often overlooked method of attracting and retaining development. Local governments should consider adopting some of the following best practices:

Well-trained planning and zoning staff and planning commission

Planning and zoning staff may not always have the training in land use planning and zoning to effectively and efficiently serve as the community’s point person when a developer knocks on the door. Also, planning commissions are often made up of civic-minded residents, but those citizens rarely have backgrounds in real estate, law, or another planning-related profession. Planning staff, planning commissions and other boards and commissions should be well-trained and able to efficiently guide the developer through the approval process.

User-friendly forms

Often, communities utilize a single form for variances, rezoning, building permits, and a variety of other purposes. Although building and planning staff may understand the form, forms should be intuitive to developers and property owners.

Zoning code provisions that provide a degree of certainty

It is no secret that developers like certainty. Developers do not like when they cannot determine whether the plan would be permitted under a zoning code and other ordinances, or when the process required to obtain approval is unclear. If that happens, then developers may choose an alternative, lower risk community that provides more certainty in their ordinances.

Jessica Trivisonno is an attorney in the Public Law group at Walter | Haverfield. She can be reached at jtrivisonno@walterhav.com or at 216-619-7870.

For more information on policies and procedures that encourage development, Jessica Trivisonno and her colleague, Todd Hunt are presenting “Encouraging Economic Development Through Planning” at the Northeast Ohio Planning and Zoning Workshop on June 8, 2018 in Conneaut, Ohio. The workshop is open and sessions are designed for local officials, planning commission and board of zoning appeals members, community development professionals, professional planners, attorneys, architects and other interested citizens. Register here.

Supreme Court Denies Review of Extended Leave of Absence Decision


April 30, 2018

 

Rina Russo 

The U.S. Supreme Court will not review an appellate court decision which held that a leave of absence from work lasting several months is not a reasonable accommodation under the Americans with Disabilities Act (ADA). That decision came from the Seventh Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin.

The plaintiff in Severson v. Heartland Woodcraft, Inc. requested that the Supreme Court decide whether there is a per se rule that a finite leave of absence of more than one month is not a reasonable accommodation under the ADA. However, the court declined to hear the case and express its opinion on the issue. Various other circuit courts of appeals have found the opposite – that a finite leave of absence can be a reasonable accommodation under the ADA.

In Severson, the plaintiff took a 12-week leave under the Family and Medical Leave Act (FMLA) to deal with serious back pain. At the end of the 12-week FMLA period, the plaintiff had back surgery, and told his employer that he could not work for an additional two to three months while he recovered from surgery. The employer denied that request and terminated the plaintiff’s employment. The plaintiff brought suit against his employer, alleging that it violated the ADA by failing to grant the additional leave as a reasonable accommodation. The trial court granted the employer’s motion for summary judgment, and the Seventh Circuit affirmed that ruling. In doing so, the Seventh Circuit reasoned that an extended medical leave would not assist him in performing his job but would actually keep him from working. The Seventh Circuit found that while the ADA is not a medical leave statute, it may still require brief periods of medical leave.

Without the Supreme Court’s input, employers will continue to wrestle with how to evaluate whether an extended leave of absence is a reasonable accommodation under the ADA. Outside the Seventh Circuit, multiple courts of appeals and the Equal Employment Opportunity Commission (EEOC) have held that a finite leave of absence can be a reasonable accommodation under the ADA. Further, the EEOC has even indicated that placing a limit on the amount of leave an employee is entitled to is a violation of the ADA. Without clear guidance on the issue, employers should always engage in the ADA interactive process with employees to evaluate possible reasonable accommodations.

Rina Russo is an attorney with Walter | Haverfield’s Labor and Employment Services practice group. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

 

Walter | Haverfield Expands Its Litigation Team


April 27, 2018

 

Committed to its mission of offering superior service to a wide range of clients, Walter | Haverfield has hired Jessica Bradburn Loucks to its Litigation team.

Loucks is a passionate, young attorney with experience in various phases of complex civil litigation. Her background includes in-depth involvement on a defense team for a Fortune 500 global science company. She worked extensively on all aspects of the multidistrict litigation consisting of numerous, novel claims of personal injury and wrongful death. As part of that team, she helped implement a process to timely remove and transfer more than 2,000 complaints from state court into federal court.

“Jessica’s skills as well as her dedication to the job truly impress us,” said Ralph Cascarilla, head of Walter | Haverfield’s Litigation team. “We are honored to have her on our team.”

Loucks previously served as a legal extern with the Cleveland Metropolitan Bar Association. There, she was the driving force behind the development and creation of a pilot program offering legal services in the Cleveland Metropolitan School District. She also served as a member of the Police Reform Practicum, working with the Cleveland Community Police Commission to improve police-community relations.

A graduate of the Cleveland-Marshall College of Law, Loucks is a native of Rochester, NY and resides in Rocky River with her family. She earned her undergraduate degree from Bowling Green State University.

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public entities and high net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Our track record has allowed us to sustain year-after-year growth. Walter | Haverfield has more than doubled in the past decade to become one of Cleveland’s top ten law firms. Today, our team of nearly 80 attorneys is focused primarily in the areas of corporate transactions, real estate, intellectual property, labor and employment, tax and wealth management, liquor control law, litigation, public law and education.

Federal Court Limits Student’s Use of a Recording Device in the Classroom


April 23, 2018

With the prevalence of smartphones and social media, school districts are growing increasingly wary over the ability of students to record what happens in school. And some courts are sharing that same concern, as demonstrated in a recent decision. It’s a decision that involves a novel attempt by parents to obtain a recording device as an accommodation under the Americans with Disabilities Act (ADA) to record everything said throughout the school day.

In Pollack v. Regional School Unit 75, No. 17-1700 (1st Cir. Mar. 26, 2018), parents in Maine gave their son an audio recording device to carry while at school. Their son is autistic and has a severe and rare neurological syndrome which limits his ability to process language and prevents him from speaking. The parents argued that they needed to record everything that was said in their child’s presence so they can learn about his experiences at school, and in turn, advocate for him when necessary. After all, unlike other students, their son was unable to answer the question that many parents ask their children every day: What happened at school today?

After the school district refused the request, the parents filed suit in federal court alleging a violation of the ADA for failure to provide a reasonable accommodation. The primary issue: whether the school district denied the student “the benefits of [its] services, programs, or activities” or otherwise discriminated against him when it rejected the parents’ request to equip their son with a recording device. The lower court ruled that the district did not violate the student’s rights under the ADA by denying his parents’ request for the device.

The legal decision involved extensive procedural analysis, including an Individuals with Disabilities Education Act (IDEA) component. (The administrative hearing officer found that the school district did provide the student with a free appropriate public education (FAPE) and the recording device provided the student with no demonstrable benefit.) Ultimately, however, the appeals court agreed with the lower court.

The court observed that the student had over 12 years in school without a recording device, yet he “has been happy, has loved school, and has made continuous and significant progress.” In addition, district staff testified that the device would not support the student’s education. And it may actually hinder it by increasing his isolation after making staff and peers uncomfortable. But most telling was the parent’s inability to answer the court’s question of “what exactly were the parents going to do with the 4 or 5 hours of recordings each evening?”

The court noted that one of the requirements of an ADA accommodation claim involves showing the “effectiveness” of the proposed accommodation. Specifically, does the proposed accommodation offer a benefit in the form of increased access to a public service? The court concluded the parents failed to show that the recording device would provide the student with a demonstrable benefit, and thus, the parents were unable to prove a necessary element of an ADA claim.

The ability to record is nothing new, but the means to go about it is more sophisticated than ever. Because Ohio is a “one-party consent” state, a student may not always need to ask permission to record. But if you are facing an attempt by parents, students or even employees to record conversations, legal counsel may be necessary to explain the nuances.

Peter Zawadski is an attorney at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.