The rising use of “social media,” such as Facebook and Twitter, is generating one of the fastest growing areas of litigation today. While social media is a fairly new phenomenon, the claims associated with social media are not. The largest areas of potential claims stemming from the use of social media are defamation and harassment; claims have been made in the areas of invasion of privacy, false advertising, employment and intellectual property as well.
Anybody with a computer can now have a blog or post something on Facebook, Twitter or any number of other social media outlets. But one has to be careful when they provide their opinion in a public or semi-public place, especially if that opinion is about an individual or a company. While it is very easy for people to post their opinions on anything and everything that impacts them, how they say it and what they say can bring dire consequences.
The Restatement of Torts defines a “defamatory statement” as one which “tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Typically, to meet the elements of defamation, the individual must prove:
1) A false and defamatory statement concerning another;
2) An unprivileged publication to a third party;
3) A fault amounting at least to negligence on the part of the publisher;
4) Some harm caused to the person or entity which is the subject of the statement.
Although the Restatement of Torts has a standardized definition, individual states often have their own variations on what constitutes a defamatory statement.
In some instances, a defense has been raised that the individual who published the allegedly defamatory remarks on a social media site are journalists. However, there have been cases where the courts have determined that online message boards are not similar to news agencies and individuals are not protected against claims for defamation. Ultimately, the best way to avoid a defamation lawsuit is by not posting defamatory remarks. If someone wants to post or comment on a blog, they should provide only verifiable facts to avoid a claim.
The other area that is significant in social media litigation is instances of harassment or cyber-bulling. The Restatement of Torts defines the tort of reckless or intentional infliction of emotional distress as occurring when “an actor…by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another…” In such instances, the harassing individual “is subject to liability for that emotional harm and if the emotional harm causes bodily harm, also for the bodily harm”. Cyber-bulling may be prohibited by statutory laws and state and federal hate crimes as well as anti-discrimination crimes, so the victim has a number of options to choose from when bringing an anti-harassment claim. Where we are seeing these claims rise is with the actions of pre-teens and teenagers. In fact, here have been a few cyber-bulling cases recently that have made national headlines.
The key to the use of social media is to use it intelligently. As adults we have to be careful in what we post, and we have to stress to our children that what they post should not be hurtful to others, as it could result in a lawsuit. Social media can be a great way to reconnect with old friends, stay connected with current friends and family or to learn about certain products and services. At the same time, we must remember that by using this technology we are subject to certain responsibilities and norms that, when they are violated, can expose a person to litigation.
In February, 2014, the metropolitan Toledo area eclipsed the all-time snowfall record for the area. In addition, we have seen brutally cold temperatures throughout the winter. The combination of snow and low temperatures has resulted in the most extensive damage to roads and the proliferation of potholes in memory. It will not be a case if your car of is damaged by a pothole, but rather when.
It has been estimated that rough roads and potholes will cost motorists more than $67 billion a year for repairs, according to an association of highway officials. In Ohio, victims may seek reimbursement for damage caused by a pothole on a state road in the Ohio Court of Claims. The maximum recovery in that court is limited to $10,000. Records indicate that more than 1300 claims have been filed in the past five years, resulting in reimbursement of nearly a half million dollars.
The court’s clerk reviews submitted claims, and an administrative decision is made as to awarding damages. According to the present clerk, the court sides with drivers roughly 55% of the time. There is a two-year statute of limitation to file the claim. Each driver is responsible to prove that the state was negligent. There is no specific time frame for when a pothole has to be repaired and so each case is reviewed with a fact specific standard.
If the road is a non-state road, then the claim would have to be directed to the appropriate county or municipality. The National Association of Insurance Commissioners has indicated that collision coverage, in addition to liability, is necessary to be able to assert a pothole damage claim with one’s carrier. One State Farm study in 2011 indicates that pothole damage cost, on average, $300 – $700 to fix.
Ohio Revised Code 2744.05 states in part that:
If a claimant receives or is entitled to receive benefits from injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against a political subdivision recovered by that claimant. No insurer or other person is entitled to bring an action under a subrogation provision in any insurance or other contract against a political subdivision with respect to those benefits.
Thus, if a claim is made with the driver’s carrier, whatever is received will be deducted from any award against a political subdivision. The deductible amount might well be the only thing the political subdivision ends up being responsible for. To be successful against a city one must demonstrate that the city had actual or constructive notice of the pothole and failed to respond in a reasonable time. Given the extreme weather of 2014, a reasonable time might well extend into weeks. Thus, even though the potholes have become horrific, the likelihood of demonstrating negligence against the government entity that is responsible for the roads will be difficult.
On occasion, I have represented individuals and companies regarding discrimination and harassment. There is a new wave of discrimination claims called “Family Responsibility Discrimination,” or FRD. The most common definition of FRD is discrimination against workers who have family caregiving responsibilities, such as employees who are mothers and fathers of young children, parents of disabled children, or caregivers for pregnant women, aging parents or sick spouses or partners. Legal issues and claims have not been fully developed in this area as of yet, but the claims are often based upon an employee’s absenteeism where he or she has to leave to care for an individual described above, resulting in their being discriminated against by not being promoted, not receiving job assignments or even being terminated.
If one does not believe that this is a significant risk, the example of Novartis Pharmaceuticals, which in 2010 settled a class action lawsuit brought by women (often pregnant) claiming discrimination, is instructive. The cost of settlement for Novartis exceeded one hundred fifty million dollars. More recently, in May of 2013, a class action suit seeking more than $100 Million was filed against Merck & Company in the U.S. District Court in New Jersey. In that case, women claimed that if they had children or had to take maternity leave that they were discriminated against. Merck’s actions allegedly included demotions, less pay, failure to develop women into management roles and treating pregnant women differently than males or non-pregnant women. It was also claimed that the company would try to get pregnant women, mothers and women who wanted to have children to leave the company.
The EEOC in 2007 issued a publication called “Enforcement Guidance; Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” What this document did was point out areas where disparate treatment might violate Title VII or provisions of the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). Such conduct includes such conduct as:
1) the unlawful disparate treatment of female caregivers as compared with male caregivers;
2) the unlawful gender role stereotyping of working women, including benevolence stereotyping and assumptions regarding work performance;
3) engaging in stereotyping in subjective assessments of work performance;
4) pregnancy discrimination;
5) discrimination against male caregivers and women of color;
6) stereotyping based on an association with an individual with a disability;
7) the creation of a hostile work environment by virtue of offensive comments related to caregiving responsibilities; and
8) retaliation related to caregiving responsibilities.
Employer should be aware that the Department of Labor in January of 2013 issued a clarification of the FMLA provision regarding protective leave in the care of a son or daughter who is 18 years or older and has a disability. The Department of Labor found that a parent is entitled to take a leave of absence to care for a son or daughter who is 18 years of age or older, under certain conditions. It should be noted that the document stated that the age of onset of the disability is irrelevant. To qualify for an FMLA leave, the child must:
1) have a disability as defined by the ADA;
2) be incapable of caring for themselves due to that disability;
3) have a serious health condition; and
4) be in need of care due to the serious health condition.
An area of concern exists not only in regards to children, but also that with the aging of baby boomers there will be a corresponding increase in caregivers for elderly parents.
This new area of claims is going to be very challenging for all involved as the law develops. As an employer, the key is to be fair to all individuals even if they have to utilize sick leave, personal time, vacation or even an FMLA leave to be a caregiver. One cannot discriminate against these individuals once they return to work. They should have equal access to promotions, projects and compensation. One should potentially develop a policy regarding this area that would comply with the EEOC policy in defining a caregiver, caregiver responsibilities and what is defined as a family.
If you have any questions regarding the above, please do not hesitate to contact one of the attorneys here at RCMTZ.
Most people are familiar with the concept of transfer on death (“TOD”) with respect to stock certificates, investment accounts, or bank savings and checking accounts. TOD designations have become a convenient and easy way to transfer assets without subjecting those assets to the probate process. Under statutes enacted, and refined, in the State of Ohio in the past few years, the TOD concept is now available for non-probate transfers of real estate.
Although the actual conveyance of the real estate involved does not occur until the death of the party making the designation, a TOD conveyance is initiated by the owner of real estate completing, and recording, a Transfer on Death Designation Affidavit in which certain required information is recited, including the name of the beneficiary to receive the property after the death of the designating party.
Once a designation is made, it can be terminated or changed by recording a Revocation of Transfer on Death Designation form, and completing and recording a new designation affidavit.
The process is complete, and the property is conveyed by operation of law, upon the death of the designating party. A Transfer on Death Affidavit of Confirmation is recorded by the beneficiary to evidence the completed conveyance.
TOD designations are very flexible in that trusts or legal entities may be designated as a beneficiary. In fact, multiple beneficiaries can be designated, even with varying percentages of ownership interest in the real estate. TOD designations for real estate are, therefore, a convenient and flexible tool as part of an estate planning program.
If this sounds like a planning measure that you could use in your planning program, contact one of our estate planning attorneys to discuss its possible use.
Recently, I was fortunate enough to take a cruise into a warmer climate. Although we did not relish returning to the frigid weather of Toledo, we made plans for our return as the cruise entered its final leg. On the last night of our cruise our ship, along with three other ships, was denied access to the Tampa Harbor. A heavy fog had fallen over the area and the port was closed. The ships lined up at anchor roughly 47 miles outside of their berths. Unless the fog lifted very early in the morning, an awful lot of flights were going to be missed. Due to less than stellar planning my wife and I had already changed our flight to Monday morning, and thus we could enjoy the pea soup views.
While the cruise line indicated that this type of delay was a first, the fact that we didn’t leave the ship until roughly 2:00 PM meant that several of the flights that day out of Tampa going north lacked a large number of passengers. The unfortunate reality that many of those passengers learned was that when one flies with non-refundable tickets they may bear the costs of the changes and delays caused by the weather. In speaking with several passengers it became clear that different airlines were taking different approaches towards charging passengers for rebooking. The fog which marred the final day of our cruise, while less than pleasant, taught an important lesson – one needs to ask in advance how weather delays are going to be handled by a carrier. Although a travel agent may very well know in advance how to deal with unexpected delays of this nature, the unprepared traveler may be surprised to see that unexpected delays can deprive them of a lot of their money as they scramble to reorganize travel plans at the last second. Anticipate the impact of possible delays when scheduling your travel plans so that your wallet doesn’t receive a rude awakening when the unexpected happens!
RCMTZ is pleased to announce that Matthew R. Persinger has joined the firm as an associate in the litigation division. Matt graduated from the University of Toledo College of Law in 2013 and is licensed to practice law in the state of Ohio.
Originally from Whitehouse, Ohio, Matt holds a Bachelor of Arts degree from Bowling Green State University, where he was awarded the position of “Academic & Social Success Mentor” and also headed the research team for the Political Science Department. In addition to being active in the Ohio Bar Association, Matt is also active in the Anthony Wayne Community. Before joining our firm, he was an associate attorney at a general practice firm and was also an Assistant Prosecutor in Williams County, Ohio.
Matt’s areas of practice at RCMTZ are expected to include business litigation, insurance defense, fraud investigation and employment law. He can be reached at email@example.com.
Shareholder Mark Trimble has agreed to join the board of directors of the Greater Toledo Aquatic Club. The club is a year-round competitive swimming program serving Northwest Ohio, and its website can be found at http://www.teamunify.com/Home.jsp?team=ohgtac.
Shareholder Matt Rohrbacher recently participated in the first annual trustees’ retreat for Good Grief of Northwest Ohio. Good Grief is a not-for-profit organization offering a safe healing place designed to assist children, teens and young adults in dealing with the loss of a loved one.
Associate attorney Sarah Beaubien has joined the Board of Directors of the Detroit Achievement Academy, a start-up charter school planning to begin operations in the fall of 2013. Sarah joins four other Board members who collectively form the Academy’s inaugural Board of Directors. The Board oversees the operation of the school and supervises school finances and policies.
The Academy is the first non-profit charter school in the Detroit metropolitan area. The school will initially consist of kindergarten and first-grade classes. A new class will be added each year as the school grows.
An article written by Shareholder Todd Zimmerman to help businesses avoid liability stemming from winter weather has been published in Paradigm Magazine, an international publication read by thousands of attorneys around the globe. Todd’s article, “Limiting Your Exposure to Winter – Avoid the Liabilities Inherent with Snow and Ice,” was published in the Winter 2013 edition of Paradigm. The article offers practical tips for business owners and employees to recognize and resolve winter weather-related problems on their premises, which could otherwise lead to legal liability. The article can be found on pages 14-15 of the Winter 2013 edition, an electronic copy of which can be found at http://www.primerus.com/paradigm-magazine/2013-winter/.
Paradigm Magazine is a biannual publication produced by the International Society of Primerus Law Firms. Primerus is a legal society consisting of more than 190 member law firms worldwide. RCMTZ has been a member firm of Primerus since 2012.
Associate attorney, Adam Nowland, earned a Master of Business Administration degree (MBA) from the University of Toledo’s College of Graduate Studies. On December 14, 2012, Adam was awarded a Master’s degree from the University after having completed his studies for the fall semester.
While earning his law degree, Adam entered the University’s dual-degree program, which enables students in certain fields of study to pursue multiple degrees simultaneously. After passing the bar exam and becoming licensed as an attorney, Adam completed his MBA studies, while working full time at RCMTZ.
Adam plans to utilize the skills learned while obtaining his MBA to advise clients on legal and business matters. He joins RCMTZ shareholders David Rohrbacher (MBA) and Nicholas Cron (Master of Laws in Taxation) as attorneys in the firm’s business division holding dual advanced degrees.
TBA Board Member Michael J. Manahan will be attending and participating in the Toledo Bar Association’s strategic planning conference on October 4 and 5, 2012. The conference will be held at the Sawmill Creek Resort in Huron, Ohio. During the conference, the Board of Directors will be setting out a plan for the future role that the bar association will play in the practice of law for Toledo-area lawyers.
The Toledo Bar Association is a voluntary association of attorneys in the Toledo area. Its website can be found at http://www.toledobar.org/.
Attorneys from RCMTZ plan to attend several seminars dealing with insurance fraud in the upcoming months.
On October 19, Shareholder Todd Zimmerman will attend the Claims and Litigation Management Alliance (CLM) 2012 Insurance Fraud Conference in Garden Grove, California. A number of seminars are offered to cover a wide variety of fraud topics. Those topics include the establishment of relationships with insurance claims and special investigative units, suspicious fire losses, social media and investigations, auto schemes and utilizing the legal system to attack fraud.
In addition, shareholders Michael Manahan, David Bruhl and Todd Zimmerman will attend the National Society of Professional Insurance Investigators’ (NSPII) Advanced Insurance Fraud Seminar in Indianapolis, Indiana. The seminar offers lectures on 14 different topics and features a number of speakers, including experts in risk management and complex fraud cases. The seminar will be held on November 12 and 13. Additional information about the seminar can be found at http://www.nspii.com/Seminar.aspx.
Shareholder Todd Zimmerman has been invited to speak at the Ohio Association of Civil Trial Attorneys’ (“OACTA”) 2012 annual meeting. At this meeting, to be held November 8 and November 9, Mr. Zimmerman will discuss the landmark Ohio decision Robinson v. Bates, governing evidence of how much money medical providers accepted to treat a patient as opposed to how much money those providers billed that patient. Mr. Zimmerman will also discuss updates to the body of Ohio law developed after Robinson and how it currently impacts trial attorneys and their clients.
Questions regarding Mr. Zimmerman’s planned discussion can be directed to him at http://www.rcmtz.com/attorney-profile/todd-zimmerman/contact/contact-form/.
On September 20 and 21, 2012, Shareholder Todd Zimmerman attended the Primerus Insurance Coverage and Bath Faith Seminar in Chicago, Illinois. The seminar consisted of a series of lectures for Primerus attorneys and their clients and covered topics such as insurer expectations, contractual indemnification, settlement strategies, and recognizing bad faith scenarios. The seminars were presented by attorneys working for firms affiliated with Primerus.
Primerus is an international society of the world’s top independent boutique law firms. The society consists of nearly 2,800 attorneys across more than 190 law firms worldwide. RCMTZ has been proud to be a member of Primerus since 2012. More information about Primerus can be found at its website, http://www.primerus.com/.
RCMTZ is proud to announce that it has joined Primerus, a society of the world’s finest independent boutique firms. By joining Primerus, which consists of thousands of associated lawyers from more than 190 law firms, RCMTZ gains access to an unprecedented network of legal experts across the United States and worldwide.
Primerus focuses on providing clients with access to high quality legal services at reasonable fees. Membership in the society is limited based on a firm’s geographic presence and market size. RCMTZ is the only Primerus law firm in the Northwest Ohio Region.
Primerus law firms are located in more than 125 cities throughout 35 countries around the world. In order to be admitted to Primerus, law firms must pass a rigorous screening procedure, which seeks to ensure that the society contains high quality legal service providers. Primerus emphasizes a set of common values known as the “Six Pillars:” integrity, excellent work product, reasonable fees, continuing education, civility and community service.
RCMTZ’s ties to Primerus provide access to a wealth of expertise and experience in fields outside of RCMTZ’s traditional areas of practice and enables RCMTZ to ensure clients have access to excellent legal advice in geographical areas outside of Northwest Ohio. Because all member firms are vetted prior to being permitted to join Primerus, clients with needs in other legal or geographical areas can be referred to member firms with confidence.
For more information about Primerus, visit the society’s website at http://www.primerus.com/.
A November, 2011 decision out of Ohio’s Third District Court of Appeals, granting summary judgment in favor of a psychiatrist represented by Shareholder Michael Manahan, has been selected for publication. In Piper v. Bruno (Nov. 14, 2011), —N.E.2d—, 2011-Ohio-5874, 2011 WL 5517260 (Ohio App. 3d Dist.), the Ohio Third District Court of Appeals unanimously ruled in favor of a psychiatrist, represented by Michael Manahan and attorney Kate E. Schuyler, accused of falsely imprisoning a patient who was involuntarily hospitalized in Lima, Ohio’s St. Rita’s Hospital pursuant to Section 5122.05 et seq. of the Ohio Revised Code.
In Piper, the Third District considered the issue of whether Dr. Bruno, the psychiatrist, was immune from civil liability, stemming from his action in having Piper, a patient, involuntarily committed for hospitalization because of behavior, which Dr. Bruno had observed, or was reported to him from reliable sources in his capacity as a psychiatrist. Piper had originally been brought to St. Rita’s for observation after being taken into custody by police officers due to statements he had made indicating that he had homicidal and suicidal thoughts.
Approximately a year after being released from the hospital, Piper filed a civil lawsuit against Bruno alleging false imprisonment, malicious prosecution, abuse of process and intentional infliction of serious emotional distress. The trial court, which initially heard the case, granted summary judgment in favor of Bruno and dismissed Piper’s complaint, after which Piper appealed to the Third District Court of Appeals.
Based on legal arguments presented by the defense, the Court of Appeals concluded that Piper had presented no evidence to support his assertions that Dr. Bruno lacked a good faith basis for involuntary hospitalization and that the trial court had ruled correctly when it granted Bruno’s motion for summary judgment. Because Piper had failed to demonstrate that, no reasonable psychiatrist in Bruno’s position would have continued Piper’s hospitalization under the circumstances, there were no grounds to overturn the trial court’s decision and the judgment in favor of RCMTZ’s client was upheld.
Shareholder Matthew J. Rohrbacher will take part in a round-table discussion on Friday, April 13, 2012 in conjunction with the Ohio Association of Civil Trial Attorneys’ (OACTA) Personal Injury Defense Seminar. Mr. Rohrbacher will join a distinguished group of attorneys in discussing “What’s Going On In Your Neighbor’s Courthouse: A Panel Discussion on Trends and Issues Throughout Ohio.” The round-table panel will discuss a variety of topics, including significant developments regarding Robinson v. Bates, tort reform, liability, voir dire and recent trends in jury verdicts throughout Ohio.
The seminar will take place at State Farm Insurance Company’s facility in Newark, Ohio. More information about OACTA and the seminar can be found at www.OACTA.org.
On April 20, 2012 RCMTZ Shareholders Matthew Rohrbacher, Mark Trimble, Todd Zimmerman and David Bruhl were admitted to practice before The Supreme Court of the United States, joining shareholders David Rohrbacher and Nicholas Cron in that privilege. The swearing in ceremony was held at The Toledo Club where General William K. Suter, Clerk of The Supreme Court of the United States officiated.
RCMTZ is pleased to announce that Sarah V. Beaubien has joined the firm as an associate in the litigation division. Sarah graduated cum laude from the University of Toledo College of Law in 2011 and is licensed to practice law in the state of Ohio.
Originally from Monroe, Michigan, Sarah holds a Bachelor of Arts degree from Siena Heights University, where she was an Academic All-American and a four-year varsity softball letter winner. In addition to being active in the Toledo Bar Association and the Ohio State Bar Association, Sarah is active in the Toledo and Monroe communities. For the last three years, Sarah has coached the local FAST Wizards youth travel softball teams. She is currently the varsity softball coach at Monroe St. Mary Catholic Central High School.
Sarah’s areas of practice at RCMTZ will include civil litigation, insurance defense, fraud investigation and employment law. She can be reached at firstname.lastname@example.org.
Shareholder, Michael J. Manahan, has been invited to speak at the National Society of Professional Insurance Investigators’ Ohio Joint Insurance Fraud Seminar in Columbus, Ohio. The seminar will take place on March 14, 2012 at the Quest Conference Centers in Columbus. Mr. Manahan will serve as part of a roundtable panel of attorneys discussing the current state of Ohio case law, trends in insurance investigations and litigation defense.
For further information on the seminar, visit the National Society of Professional Insurance Investigators’ website at www.nspii.com.
We are pleased to announce that attorney David C. Bruhl has been named a shareholder of the firm. David currently practices in the RCMTZ Toledo office.
David has been practicing law since 2004 and has been with RCMTZ as an associate since December of 2007. His primary areas of practice are insurance defense, civil litigation and business law. He is licensed to practice in the state courts of Ohio and Michigan, as well as the Federal Sixth Circuit Court of Appeals and the Federal District Courts for the Northern District of Ohio and the Western District of Michigan.
David is a graduate of the University of Toledo, College of Law and holds a bachelor’s degree in Business Administration from the University of Toledo. Currently, he is active in the Toledo Bar Association, the Lucas County Bar Association and the Ohio State Bar Association. He is a member of the National Society of Professional Insurance Investigators (NSPII), the Ohio Association of Civil Trial Attorneys (OACTA) and the Toledo Claims Association. In addition, he serves on the Bar Admissions Committee, the Grievance Investigation Committee and the Notaries Public Committee for the Toledo Bar Association.
David can be reached at (419) 248-2600 or at email@example.com.
This fall, Mr. Cron was elected Chairman of the Toledo Regional Chamber of Commerce. He has been very active in the Toledo business community for many years both at local and state levels. Mr. Cron is a past President of the Toledo Area Small Business Association, organized the Toledo Area Small Business Development Center, and chairs for 2012, the Toledo Regional Chamber of Commerce Levy Review Committee, and is currently assisting the Toledo Public Schools on an advisory committee to the Superintendent.
About Toledo Distinguished Clown Corps: http://toledodcc.org/ourhistory.html