Perez Morris Archives - Page 9 of 11

July 31, 2020

Troy B. Morris named fellow of Construction Lawyers Society of America

Columbus, Ohio attorney Troy B. Morris, of the law firm Perez & Morris LLC, has been selected as a Fellow of the Construction Lawyers Society of America. Mr. Morris is a founding member of the firm and has practiced construction law for over thirty years. A 1986 graduate of Kent State University, Mr. Morris received his Juris Doctor degree from the University of Cincinnati in 1989. He has represented numerous clients in both federal and state courts, and arbitration proceedings. Mr. Morris regularly represents owners, architects, contractors and subcontractors in construction matters, including mechanic’s liens, bonds, defects and other issues. He served as counsel for Sears, Macy’s, Abercrombie & Fitch and Express in the $60 million Roseville Galleria fire loss.

The CLSA is an invitation-only international honorary association composed of preeminent lawyers specializing in construction law and related fields. Fellowship is limited and selective, with lawyers being invited into Fellowship upon a proven record of excellence and accomplishment in construction law at both the trial and appellate levels. Lawyers nominated or selected may be in any discipline in the construction law arena, including contract specialization, negotiations, litigation, arbitration, appellate and/or surety law, but who have in addition superior ethical reputations. The CLSA seeks a high level of diversity in its selection process. Fellows are generally at the partner or shareholder level, or are independent practitioners with recognized advanced status among their peers. The CLSA is dedicated to promoting superior advocacy and ethical standards in construction law and fostering a scholarly and advanced exchange of ideas in all practices related to the specialty.

Mr. Morris has received the prestigious Martindale-Hubbell Peer Review Rating of AV Preeminent. This rating puts Mr. Morris in the elite group of approximately 10 percent of all attorneys worldwide and signifies that many lawyers within his practice area community rank him at the highest level of professional excellence for preeminent legal ability, very high ethical standards and excellent communication skills. He has also been recognized as a 2020 Top Lawyer by Columbus CEO.

Mony Yin Immigration Story, Perez Morris, family photo from Mony's family's immigration

July 13, 2020

Forever Grateful

A piece by attorney Mony B. P. Yin about her journey to the United States and dreaming BIG.

July 13th, 1980: A Special Day

Many of you know how grateful I am to live in the USA. 40 years ago, this beautiful and bountiful country welcomed a single mom, her four young children, father, brother and sister-in-law. When that TWA747 landed in San Francisco, and we made it through customs, a new life began for all of us. The Immigration officer handed our family a packet. The envelope contained our SSN and Resident Alien cards. On that day, each of us received two most precious pieces of paper.

We had the clothes on our backs and the shoes on our feet. I remember my brothers’ shoes, although new and bought for the trip to the USA, had come apart. The sole were unglued. Yet, we still kicked a ball around in the yard of the compound where we stayed for two days. And, where we received a brief orientation into life in the USA.

Within two days, we were on another airplane from San Francisco to Bradley International Airport in Connecticut. For us four children, it was quite the adventure. Our mom, grandfather, uncle and aunt were overwhelmed with joy at being reunited with their brother and son. Yes, you guessed it — The AIR FORCE PILOT WITH TWO PAIRS OF SOCKS AND ONE PAIR OF SHOES.

From July 15 onward, it was a rush of learning activities so that we can enroll in school that Fall. None of us ever attended school while in Cambodia. The Khmer Rouge saw to that.

We all tried to absorb as much as possible that entire summer. Anne Robb, one of our sponsors, spent many hours teaching us the alphabet and conversational English each week. By the time school started, we learned enough English to get by.

In September 1980, my sister, Seny, started 5th grade. I started 4th grade. My brother, Voot, started 1st. Our youngest brother was not even old enough to start Kindergarten, but somehow he was permitted to start to learn English. It was the first time we had school. We never looked back. We studied and worked hard.

Three years later, we moved to West Hartford. King Phillip Middle School and Whiting Lane School prepared the four of us for William H. Hall High School, which in turn prepared us for college.

Seny must have loved chemistry so much. She became a pharmacist after five years at UCONN School of Pharmacy.

I got the international bug after earning a scholarship from Duke University to study Chinese language and culture in China during the summer after my junior year in high school. After high school, I pursued a degree in International Relations at Tufts and then law school at UCONN.

Voot loves all things science. He pursued his dreams and became a phenomenal research scientist after earning his degrees from Bates College, University of Utah and Duke. I am probably missing some of his schools. I am in awe of this young man.

Rath ate, breathed, dreamt all things computer related. After graduating from Princeton, he became his own boss — starting, running and owning his compsci dream.

Regardless of your political beliefs, I dare you to dream BIG. We all did.

Mony joins Perez Morris with extensive litigation experience in construction, premises liability, products liability, aviation related litigation, insurance fraud investigation, New York labor law, and motor vehicle liability. She also defends employers and insurance carriers in various Worker’s Compensation matters in Connecticut. Her practice focuses on commercial entities, restaurants, retailers and professionals in complex, high exposure litigation, including construction defects and medical malpractice.

Mony is licensed to practice in the state and federal courts of Connecticut, New York, and Massachusetts. She is fluent in Khmer, and proficient in Spanish and Mandarin Chinese. Read more

Email Mony Yin

Lease Agreement up close with pens for signing

July 10, 2020

Perez Morris’ recent successes for retail tenants underscores importance of co-tenancy provisions

With the financial uncertainty and closing of retail establishments and restaurants due to the COVID-19 pandemic, retail tenants are advised to review their leases to determine if they can obtain some relief on their rent obligations. Specifically, in leases with “co-tenancy” provisions, tenants may be entitled to pay a lesser amount of rent due to vacancies in the shopping center where the tenant operates.

Common co-tenancy provisions include “opening” and “operating” (sometimes referred to as “continuing”) co-tenancy obligations. The opening co-tenancy conditions dictate what requirements must be satisfied at the time the tenant opens or has the option of opening its store. For example, a lease might include an opening co-tenancy requirement that at the time the tenant opens, large “anchor” tenants must be open and operating in the shopping center. If the anchor tenant, sometimes referred to as an “inducement tenant,” is not open and operating, the tenant may have the option to delay its opening or, as is more often the case, open and pay a reduced rent until the inducement tenant- opens.

An “operating” co-tenancy provision usually concerns issues where one or more identified tenants who previously operated a store in the shopping center are no longer open and operating in the shopping center. If the operating co-tenancy is violated due to the closing of one or more identified stores, the violation can be cured by replacing the departed business with a comparable business. Sometimes, instead of specifically identified tenants, the operating co-tenancy will have a maximum percentage of vacant area in the shopping center and, if the vacancy rate exceeds that maximum percentage, the tenant can pay reduced rent until the rate falls back below that percentage.

Earlier this year, Perez Morris represented two retail tenants in cases where the Franklin County Court of Common Pleas examined co-tenancy provisions in commercial leases. In DN Reynoldsburg, LLC v. Maurices, Case No. 18CV007616, the landlord asserted the tenant, Maurices, was in breach of the lease by only paying a reduced rent. Maurices argued that the opening co-tenancy condition had never been satisfied and, as a result, Maurices’ obligation to pay full rent was never triggered. In that case, the opening co-tenancy provision expressly stated that Sports Authority, an inducement tenant, had to open and operate in the shopping center before Maurices would be required to pay full rent. However, Sports Authority declared bankruptcy and never opened in the shopping center. Because Sports Authority never opened, satisfying the opening co-tenancy condition, Maurices continued to pay reduced rent.

The landlord argued that because it would be impossible for Sports Authority to open in the shopping center due to its bankruptcy, the opening co-tenancy provision should be disregarded. The landlord also argued that it “cured” the opening co-tenancy provision by replacing Sports Authority with a regional furniture store. Maurices argued this was not sufficient as the opening co-tenancy provision did not allow for Sports Authority, an “inducement tenant,” to be replaced. Thus, the only way the opening co-tenancy condition could be satisfied is by Sports Authority opening in the shopping center.

The court granted Maurices’ motion for summary judgment relying on the express language in the lease. The court also denied the landlord’s request for a declaration that the opening co-tenancy condition created an unenforceable penalty as it allowed Maurices to pay reduced rent for the entire term of the lease. The court explained the opening co-tenancy was clearly a condition precedent that had to be satisfied before Maurices was obligated to pay full rent. While acknowledging enforcing the lease as written would create a hardship for the landlord as it could never satisfy the opening co-tenancy condition, the court explained “it is not the Court’s job to alter, re-write, or reconsider the Lease Agreement reached between these two sophisticated parties” and that the court “cannot disregard the clear and unambiguous language” of the lease.

Less than six (6) months later, the court was faced with a similar issue in River Ridge Dublin Investments LLC v. AnnTaylor Retail, Inc., Case No. 19CV007510. The lease in that case also included opening and operating co-tenancy provisions. The opening co-tenancy required a specific tenant to open and operate in the shopping center and also required four (4) retail tenants and two (2) restaurant tenants to open and operate in the shopping center before AnnTaylor was required to pay full rent. The landlord did not dispute the opening co-tenancy condition was not satisfied but argued that AnnTaylor should have terminated its lease pursuant to terms in the operating co-tenancy provision and, when it did not terminate, waived its right to pay reduced rent. The court rejected the landlord’s argument.

Much like in the Maurices case, the court focused on the language of the lease defining the opening co-tenancy requirement as a “condition.” The court explained that there “is a 24-month cure period in the ‘Operating Co-Tenancy’ subsection, but it was not adopted by reference for the separate ‘Opening Co-Tenancy Condition’ subsection. Thus, the ‘Opening’ condition was either satisfied at some point, or it was not…but it did not lapse after 24-months” as set forth in the “operating” co-tenancy provision. Further driving home the importance of the phrase “condition,” the court explained:

This Lease used the capitalized words “Opening Co-Tenancy Condition.” The plain language including the word ‘condition’ meant that the landlord was obligated to fill this shopping center to a definite, minimum degree before AnnTaylor became obligated to pay ‘full rent under the Lease Agreement.’”

The court concluded by declaring that due to the opening co-tenancy condition not being satisfied, “AnnTaylor was never obligated to commence paying full rent” and “no time requirement limited AnnTaylor’s rights under the Opening Co-Tenancy Condition in the Lease.”

As these cases demonstrate, courts will enforce clear and unambiguous co-tenancy provisions, even if they might create a hardship for one of the parties. Thus, when negotiating leases, retail tenants should be sure to pay attention to the express language of such provisions and consider the different scenarios that could unfold if a landlord is not able to deliver on its promise of anchor tenants or, if due to a national emergency, shopping centers find themselves with higher than normal vacancies. Both leases in the cases discussed above clearly stated that the opening co-tenancy requirement was a “condition precedent” that had to be satisfied before the tenants had to pay full rent. Because those conditions were not satisfied (and still are not satisfied) the tenants are properly paying reduced rent. There is simply no reason for tenants to pay full rent for space in a shopping center where the tenants that were supposed to drive business to the shopping center do not exist. Clearly stated co-tenancy provisions can prevent this.

Kevin brings 20 years of litigation and trial experience representing clients in complex, commercial litigation matters to Perez Morris LLC. He focuses much of his practice on defending product liability cases. Kevin also represents financial industry clients in all facets of securities disputes.

Kevin resides in New Albany, Ohio with his wife, Elizabeth, and their two children. Read more

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July 6, 2020

Venue remains critical question in Montreal convention litigation, Georgia Federal Court opines on forum non conveniens

Over the past several years, venue considerations in lawsuits involving international carriage under the Montreal Convention (“the Convention”) have become increasingly more frequent and meaningful in various jurisdictions. As exemplified in certain federal appellate-level decisions, such as Hosaka v. United Airlines, Pierre-Louis v. Newvac Corp., and Delta Airlines v. Chimet, in addition to others, changing a case’s venue may drastically impact the trajectory and outcome of a particular aviation-related lawsuit. As court rules vary widely, not only within the United States, but even more so throughout the world, jurisdictional questions are amplified when considered on the global stage.

Historically, forum non conveniens has been utilized by airline defendants as a procedural device to dismiss a case from a court within the United States in favor of a foreign jurisdiction, as was the case in Bintu v. Delta Airlines, Inc., 2020 WL 3404925, (N.D. Ga. June 12, 2020), the most recent federal decision to opine on the issue of venue under the Montreal Convention. In Bintu, plaintiff, a resident of Germany, purchased a roundtrip ticket through Delta, a commercial U.S. airline. Pursuant to Delta’s joint venture agreement with co-defendant, KLM Royal Dutch Airlines (“KLM”), headquartered in The Netherlands, KLM operated plaintiff’s return flight from Atlanta, Georgia to Munich, Germany with a layover in Amsterdam. Bintu at 1. During the flight from Atlanta to Amsterdam, a flight attendant allegedly pushed a beverage cart into plaintiff’s knee, causing him injury. Id. Plaintiff filed suit in Georgia’s District Court, and the airline defendants moved to dismiss based upon forum non conveniens.

As with other areas of litigation, forum non conveniens within the context of international carriage is a common law doctrine that permits a court to decline jurisdiction over a case, despite proper personal jurisdiction and venue, in the event there is a more convenient forum. Similar to other courts, the Eleventh Circuit, a hotbed for this type of litigation, determines the validity of dismissal pursuant to forum non conveniens by utilizing a three-part test, consisting of: (1) whether an adequate alternative forum is available; (2) public and private interest factors; and (3) whether plaintiff can reinstate the suit in the alternative forum without undue inconvenience or prejudice, in addition to a multitude of sub-factors and considerations. Bintu at 2.

In granting the airlines’ motion, the court found that plaintiff’s case was more conveniently suited in Germany. The court found that all of the factors examined as part of the forum non conveniens analysis weighed in favor of dismissal, including the availability and adequacy of the German courts, private interest factors involving access to written evidence and witnesses, as well as plaintiff’s uninhibited ability to reinstate his claim in Germany. Importantly, the court mentioned that while there is normally a “strong presumption” that plaintiff has chosen a convenient forum, the presumption weakens if the plaintiff is not a United States citizen. Bintu at 4. The court specifically found that Germany’s availability as a forum, and the “overwhelming volume of evidence located in Europe” arising from plaintiff’s German residence, in addition to KLM’s documents and cabin crew located either in The Netherlands or elsewhere in Europe, warranted dismissal under forum non conveniens. Bintu at 4.

As the court in Bintu pointed out, although the Montreal Convention exclusively governs the issue of liability for personal injury claims occurring while onboard an aircraft during an international flight, the Convention provides only a basic framework, rather than an entire body of substantive law needed to adjudicate a claim. Bintu at 4. Certain essential questions are not addressed by the Convention, including issues of compensatory damages and procedure, which are instead governed by the applicable domestic law. Given how these elements of local law may impact the outcome of a particular case, venue considerations remain a crucial threshold question for all claims that fall under the Montreal Convention’s purview.

Michael W. Aceto concentrates his practice in the areas of product liability, toxic tort, environmental, and general liability claims. He is a trial lawyer with experience defending companies and individuals in matters involving mass torts including asbestos, benzene, talc, mold, lead, and other chemicals, and dedicates a significant portion of his practice to complex product liability actions involving industrial equipment, commercial and consumer motor vehicles, construction machinery, and household consumer products.

Before entering private practice, Michael served as a law clerk in the Torts Litigation Section of the Pennsylvania Office of Attorney General and as a judicial law clerk to the Hon. Edward Griffith in the Chester County, PA Court of Common Pleas. In addition, he focuses his pro bono practice on counseling non-profit organizations in the educational system. Read more

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Gray has extensive New York civil litigation experience defending high exposure cases involving alleged premises, construction, elevator, New York State Labor Law, environmental and toxic torts, asbestos, landscaping, auto, and municipality claims. Prior to joining Perez Morris Hyde, Gray spent over 5 years with his prior firm as lead counsel for cases at the Trial and Appellate levels, including a published and favorable decision by the First Department, Appellate Division of New York. Dillon K. v. N. Blvd. 4818, LLC, 161 A.D.3d 664, 77 N.Y.S.3d 69 (N.Y. App. Div. 2018).

Gray is excited to be a part of the growing and collaborative, NAMWOLF certified team at Perez Morris. Read more

Email Gray Oxford

Ohio Supreme Court photo showing the building and gavel in the fountain

July 4, 2020

The Ohio Supreme Court amends civil rules: What that means for practice in Ohio trial courts

Ohio has made the leap to adopt new rules of civil procedure identical to ones that are already in place on the federal level. The underlying notion in all of the rule amendments is a reduction of the cost of litigation. Let’s hope the rules play out that way.

In its annual rules update, the Ohio Supreme Court amended the Ohio Rules of Civil Procedure related to waiver of service, pretrial procedure, and discovery. The new amendments should be a welcome addition for all litigants in Ohio as they focus on efficiency. The rules took effect on July 1, 2020.

Discovery now must be proportional to the case

In a move to streamline cases and hopefully decrease litigation costs, Civ.R. 26(B)(1), regarding the scope of discovery, has been completely replaced with identical language from Fed. R. Civ. P. 26(b)(1). Narrowing the scope of discovery, the new rule requires discovery to be proportional to the needs of the case. Attorneys now have the right to object to and limit responses to overbroad discovery requests based upon the amount in controversy, the parties’ access to relevant information and resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. However, the staff notes of the rule specifically states that the responsibility is on both parties, collectively, to consider proportionally and resolve discovery disputes. Since discovery disputes are hardly litigated to the extent they make case law, parties will need to consider the preferences of the Judge and Court they are assigned when raising these new issues.

The rules also require the parties to prepare a discovery plan stating the parties’ views and proposals on various aspects of the discovery stage of litigation.

Initial Disclosures, Pretrial and Scheduling Conferences

Courts may schedule initial pretrial conferences to be held and shall issue a scheduling order for the case around 60 days after a defendant has answered or otherwise responded to a complaint. Civil Rule 26 also requires the parties to make initial disclosures to one another, without awaiting a discovery request. These disclosures are required prior to the first pretrial or case management conference (for most cases) and should help streamline the matter for all litigants and the Court. Civil Rule 26(F) requires the parties to meet and file a report with the Court, which should aid in counties where case schedules are not automatically generated.

Experts

In another move to reduce costs of retaining and deposing experts, expert reports are now required prior to any testimony of an expert witness. For medical experts, this can be the medical expert’s own records, instead of a report. Depositions can be taken only after a mutual exchange of the reports.

Electronically Stored Information (ESI)

The electronically stored information provision of Civ.R. 26 was shortened, taking out the factors the court used to determine whether a requesting party showed good cause in requesting the production of ESI.

Waiver of Service

Under Civ.R. 4, a plaintiff may now request that a defendant waive service of a summons for any civil action filed in a Court of Common Pleas. This should allow for more transparency among the litigants at the onset of lawsuit, especially when pre-suit negotiations have been ongoing. Civ.R. 4.7 lays out the process and specific requirements for waiving service, limits waiver to Courts of Common Pleas, and imposes a duty on individuals, corporations, partnerships, or associations to avoid unnecessary expenses involved in serving the summons. Notably, the rules allow for notice by “other reliable means” which can include electronic communications such as email.

Benefits of Waiving Service

Waiver of service of summons can be beneficial for both parties to a lawsuit. A plaintiff can avoid the costs associated with preparing and serving a summons, and if a defendant timely returns a waiver, then they do not need to serve their answer to the complaint until 60 days after the request was sent (90 days if defendant is outside of the U.S.). Prior to Civ.R. 4.7(D), a defendant only had 28 days to respond to a complaint after being served, and many times this left newly engaged defense counsel seeking an extension of time to answer. Further, Civ.R. 4.7(E) does not require proof of service by a plaintiff if they file a waiver. Instead, the filing of a waiver by a plaintiff acts as if a summons and complaint had been served at the time of filing.

Consequences when a Defendant Fails to Waive Service

There could be consequences for a defendant should they choose not to waive service without good cause. A court may require a defendant to pay the expenses incurred in making service and the reasonable expenses, including attorney’s fees, of any motion required to collect the service expenses.

For the full text of the amended rules effective July 1, 2020 see: http://www.supremecourtofohio.gov/ruleamendments/documents/4.22.20%20Posting.pdf

Celia is a trusted advisor who effectively manages the litigation and compliance needs of individuals, corporations, small businesses, and medical practices. She builds strong and lasting relationships with clients as their go-to advocate, delivering creative and effective strategies, while balancing business needs and the client’s definition of a successful outcome.

Celia received her undergraduate degree from The Ohio State University and earned her J.D. from Capital University School of Law. Prior to joining Perez Morris, Celia was an attorney with the Columbus office of Taft Stettinius & Hollister. Read more

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Email Hannah Harris

June 29, 2020

Major legislative changes in Ohio workers’ compensation

On June 16, 2020, HB 81 was signed into law by Governor DeWine. The new law takes effect on September 23, 2020 and substantively impacts several areas of the Ohio Workers’ Compensation system.

The most significant change is the language regarding the doctrine of voluntary abandonment. The General Assembly codifies the requirement that the loss of wages must be a direct result of the injury or occupational disease to be compensable and that compensation is not payable if the loss of wages is for reasons unrelated to the injury or disease. The new law states, “If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.”

In Ohio we have 25 years of case law that has shaped the doctrine of voluntary abandonment. The new law specifically indicates that it is the intent of the General Assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim. With this broad language, it is unclear how the new law affects prior decisions such as Gross II, Klein and Louisiana Pacific. Time will tell how both the Industrial Commission and the court system address this broad language.

The law also addresses other substantive areas which include:

A VSSR must be filed within one year from the date of injury, consistent with the 2018 legislative change limiting the time to file an industrial claim from two years to one year.
The five year statute of limitations for post 2006 claims is now five years after payment of last compensation or five years from the last date of medical treatment instead of five years from the last payment of medical services. This provision will only apply to any claims arising on or after July 1, 2020. C. 4123.52.
In state fund settlements, BWC will not need to seek approval from an employer if the claim is no longer within that employer’s experience and the injured worker is no longer employed by the employer. RC 4123.65 (G).
The maximum payable for funeral expenses is increased from $5,500-$7,500.

In addition, in response to the COVID-19 pandemic, there is pending legislation which, if passed, could significantly impact the Workers’ Compensation system. HB 606 would provide a rebuttable presumption that specifies emergency responders, corrections officers and certain food workers who contract COVID-19 in the course of and arising from employment. The bill, if passed, also would provide temporary qualified immunity to specific healthcare providers who provide healthcare services or emergency services through December 31, 2020. This legislation passed the House in late May and an initial Senate Judiciary committee hearing was conducted on June 24, 2020.

Perez and Morris continues to monitor the latest developments in the Ohio Worker’s Compensation system especially relating to COVID-19 issues. Please feel free to reach out with any questions pertaining to any of these legislative changes or to COVID-19.

Rick is a proactive, strategic and dedicated workers’ compensation defense attorney with nearly three decades’ experience. He has represented self-insured and state-funded private employers, state agencies, and public and private universities in proceedings before the Industrial Commission of Ohio, and at all levels of court within the State of Ohio. Rick’s experience includes representation of national trucking companies, major hospital organizations, nursing home consortiums, national utilities, as well as a number of industry-leading retailers and restaurants.

Rick received his JD from Capital University Law School in 1986 and was a member of Phi Delta Phi, the international legal fraternity. Rick resides in New Albany, Ohio with his wife, Gigi, and their three children. Read more

Email Rick Hernandez

Beth has represented and advised employers for thirty years regarding all aspects of their workers’ compensation and risk management programs. Beth’s philosophy is that preparation and attention to detail are the hallmarks of a successful defense plan. Her practice includes representation of employers at all administrative hearing levels before the Industrial Commission of Ohio and the adjudicating bodies of the Ohio Bureau of Workers’ Compensation.

Beth received her JD from Capital University Law School in 1988. She resides in Bexley, Ohio with her husband and two children. Read more

Email Beth Weeden

April 1, 2020

Ohio Workers’ Comp Update: COVID-19 claims handling

As our country struggles with the COVID-19 crisis, both personally and professionally, it is important to understand the impact of this virus on the Ohio Workers’ Compensation system.

To date, there are eighteen COVID-19 claims filed with the Ohio BWC. Three of those claims have been denied by the BWC and the remaining 15 are under investigation at this time. The number of claims filed is expected to increase over the ensuing weeks and months.

The claims are being analyzed by the BWC as occupational disease claims. When a claim is filed on the FROI-1 claim application it will be important to look at the description of injury or exposure, and the employer should be prepared to defend the claim under the injury and occupational disease theories of causation. A COVID-19 claim could be filed as a result of a specific injury if, for example, a COVID-19 positive patient sneezes directly into the unprotected face of an individual, who is subsequently diagnosed with the virus. However, most claims are likely to be filed as exposure claims over a period of time, without specifying a single event.

Generally a communicable disease like COVID-19 is not a compensable claim because people are exposed in a variety of ways and there are few jobs that pose a hazard or risk of contracting the disease in greater degree than the public in general. Healthcare workers are obviously at a higher risk of contracting the disease, and arguably, any business that remains open at a time when most businesses are closed, would also pose a higher risk for its employees.

In Ohio, an occupational disease is compensable where:

The disease is contracted in the course of the employment;
The disease is peculiar to the claimant’s employment by its causes and that characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment in general;
The employment creates a risk of contracting the disease in greater degree and in different manner than the public in general.

To establish compensability of an occupational disease claim, the Ohio BWC looks for proof of:

Whether there was a work related exposure to a hazardous substance;
A harmful effect confirmed by medical diagnosis;
A causal relationship between the work related exposure and the harmful effect confirmed by a medical diagnosis by a physician; and
The conditions of employment created a greater risk to the injured worker than to the general public.

The following is a list of considerations for investigating a claim involving an alleged COVID-19 exposure:

A review of the claimant’s job duties to determine if there is evidence of clear work related exposure or just fear of exposure, and whether the conditions of the employment create a greater risk of contracting the virus than the public in general.
Did the individual filing a claim actually come in contact with a COVID-19 positive person in the course of and arising out of their employment?
Does the claimant have incidences of exposure in other aspects of their life or at home?
Is there a specific medical diagnosis of COVID-19 for both the individual filing the claim and the individual they were exposed to at work and is there evidence of causal relationship between the alleged work exposure and the diagnosis.
A review of the claimant’s pre-existing co-morbidities.

Each claim must be evaluated on a case by case basis. In addition, given the complexities of this defense, early involvement of legal counsel is recommended to assist in exploring both the factual and medical issues.

There is also a policy component to be considered in these cases, especially with respect to our healthcare clients who are on the front lines in this crisis and an employer may want to take that into consideration in determining if claims will be contested.

We are here and are keeping up to date on the latest developments in this area. Email addresses for our workers’ compensation team are below. Please feel free to reach out with any questions.

Email Rick Hernandez

Beth received her JD from Capital University Law School in 1988. She resides in Bexley, Ohio with her husband and two children. Read more

Email Beth Weeden

Practicing law since 1978, Steve has become one of Ohio’s leading attorneys in the area of workers’ compensation defense and disability law. Steve has devoted his career to protecting employers. Steve frequently teaches and presents on current trends and best practices in workers’ compensation and disability and has taught on these subjects at Capital University School of Law. Read more

Email Steve Habash

Prior to entering private practice, Dennis served in the Ohio Attorney General’s Office’s Workers’ Compensation Section for 10 years. Dennis’ practice since then has included all areas of workers’ compensation defense and employment litigation and counseling. Read more

Email Dennis Behm

Female millennial manager directing her team

March 19, 2020

Time to earn your trophies, millennials

I am a millennial, born in 1985. I am a mom of three young kids and wife to a full time working spouse in a fast-paced career of his own. I am a commercial litigation and employment lawyer. I also manage our law firm with offices in three states and over forty employees, from Gen Z to Baby Boomers. I hope this sets the tone for the message I would like to send.

Wearing all of these hats at the same time and trying to navigate not only my clients’ issues in the workplace but, let’s be honest, my own tough issues that present at our firm as the Managing Attorney, I do a lot of thinking about generational differences and how they impact employees’ interactions with one another. Let me tell you, they have an impact. I would venture to guess there has been no other time in my generation’s short history as leaders that we, as millennials, have seen these differences so pronounced. COVID-19 is a challenge for everyone—big business, small business, no business—you are affected. Of course, we existed and were impacted by September 11^th and we also have been impacted by the 2008 recession. But we did not lead through it. We were too young. Our parents, teachers, and advisors led us by the hand through those crises. While those experiences no doubt shaped our worldview, we did not feel firsthand the squeeze of losing a job when our family depended on it to pay bills, of having to lay people off, of fearing how we would protect our children and families through it all. Every generation has something that forces them to truly come of age and step into the arena. This is our time, for better or worse.

One of my favorite millennial stereotypes (which I love because, let’s be honest, it’s true) is that we all got trophies for just showing up and participating. Well, my friends, it’s time we earn our trophies. How we respond and perform in crisis as leaders will be the turning point for our businesses and will be a deciding factor in how our communities and families weather this storm. Here are my thoughts based on observations in my own business that fly counter to many of our instincts and how our generation is wired to operate. I believe if we do not consciously make these adjustments, we will struggle to succeed through the crisis and perhaps worse, will not recover as the leaders we hope to be.

You must be present for your team; you cannot bail or make excuses. I get that we grew up in a time when the internet existed and we have had social media, the ability to video chat from your phone, and instant messaging for most, if not all, of our adult lives. While this technology is great, it has led to millennials hiding behind these remote capabilities to suit their convenience. To be clear, I am not advocating for anyone to put themselves in danger or to disregard government directives and understand fully there are schools and daycares closing left and right, which is a real challenge. But you better get creative about how you’re going to show up for your people and do not ask anything of your team that you are not willing to roll your sleeves up and do yourself. In our office, we are sanitizing surfaces, door knobs, light switches, etc. every three hours. You better believe I am here and on that rotation as the owner of the business. I will not ask more of my people than I am willing to sacrifice myself.

We love a good social justice cause. Your people are your cause right now. When it comes to social justice and social enterprising, our generation shines. Giving back to the greater good is right in our wheelhouse and makes our big millennial hearts sing. I believe the best thing you can do right now is turn all that caring towards your team and your business. Of course, support local organizations feeding kids while they’re off school, check in on your neighbors, and keep your eyes open for opportunities for your business to shine a light in the world, but do not forget about your people or the basic premise that if your business does not succeed, you and your team will suffer greatly. Do not assume they are managing their anxiety well. Do not assume they are financially stable. Do not assume they are not concerned for aging parents. This. Is. Your. Cause. How you respond will set the trajectory for their trust in you as their leader from this point forward.

Make the tough decisions. You are going to have to make very difficult choices in this season. You may have to let people go. You may have to decide the business cannot pay employees. You may have to take on loans, make tough decisions about which bills to pay, and hold people accountable when they are not in the office. Make the decisions. Look to generations who came before for you for wisdom and guidance and respect; they have been through very challenging times but you must make the call. Those on your team, above you and below you, are looking to you to make these decisions and if you cannot or do not you will not be respected as a leader going forward. And, can we have some “real talk” here? Why should they? Step up. While people will come alongside you in this time, do not back down and have others make the tough calls.

Bring your kids along for the ride. Many of us have young children at home. Let them see, within reason, that this is tough season. Teach them about hard work. Explain why you are up late and seem stressed or tired. It should be because you are working on overload to try to take care of the people whose livelihood depends on it. Explain the value of money and how businesses work and why they are important to families who need to earn a living. I remember as a kid my amazing mom getting dressed in a suit and heading off to work every day and I thought she was so cool and what she did was really, really important. I think if she had the opportunity to bring me into how she managed difficult times for her team, I would not have forgotten that lesson. Our kids are watching. How we respond in crisis will be how they think they should respond. Let it be a message of resilience, work ethic, creativity, and leadership.

There are no participation trophies coming your way this time. Let’s turn the stereotype on its head. Earn it or you won’t receive it.

Sarah joined the firm in 2010 and handles a variety of commercial litigation, employment and transactional matters. She has experience litigating in state and federal courts, and before administrative agencies and regulatory bodies such as the Equal Employment Opportunity Commission, Ohio Civil Rights Commission and the Trademark Trial and Appeals Board. She is a champion of diversity and inclusion in the legal profession and is an active committee member with both Women for Economic and Leadership Development (“WELD”) and the National Association of Minority and Women Owned Law Firms (“NAMWOLF”).

Broken sidewalk badly in need of maintenance

February 18, 2020

NYC out of possession landlords liable for sidewalk maintenance

“Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition. Under this duty of care, a subject owner is liable for personal injury claims arising from the owner’s negligent failure to remove snow and ice from the sidewalk (id. § 7-201[b]). The Code makes no exception for out-of-possession landowners and so we hold that the duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner. Thus, defendants are not entitled to summary judgment as a matter of law due solely to the owners’ out-of-possession status.”

-Xiang Fu He v. Troon Management, Inc., 2019 NY Slip Op 07643

The New York Court of Appeals recently (October 24, 2019) decided Xiang Fu He v. Troon Management, Inc., 2019 NY Slip Op 07643, which essentially decimated a defense that out-of-possession landowners in the City of New York relied on in slip and fall litigation arising out of alleged negligence in failing to maintain sidewalks abutting a landowner’s premises. In Xiang Fu He, the Court of Appeals reversed the Appellate Division’s granting of summary judgment to the out-of-possession landowner defendant on the grounds that landowners owe an absolute, non-delegable duty to pedestrians under the New York City Administrative Code to maintain sidewalks abutting a landowner’s premises. In the Appellate Division, the defendant argued that the denial of summary judgment by the Supreme Court was error because the defendant was an out-of-possession landlord who had an agreement with the lessee of the property in which the lessee agreed to maintain the abutting sidewalks. In New York City leases, it is common for the lessee to be responsible for maintenance of the exterior and interior portions of the leased property (including the abutting sidewalks), with the landowner only being responsible for structural or design defects. The Appellate Division agreed that it was error on the part of the Supreme Court to not grant summary judgment in favor of the defendant on the out-of-possession landowner defense and reversed the Supreme Court and granted the defendant summary judgment. The Court of Appeals disagreed with the Appellate Division’s granting of summary judgment and reversed.

Prior to Xiang Fu He, it was a common defense for an out-of-possession landlord to argue that it did not owe the plaintiff a duty to maintain the sidewalks abutting the premises because the lessee had been delegated that duty under the lease. The Court of Appeals has now taken a different view of the application of New York City Administrative Code Section 7-210. Under Section 7-210:

It shall be the duty of the owner of real property abutting any sidewalk [. . .] to maintain such sidewalk in a reasonably safe condition.
Notwithstanding any other provision of law, the owner of real property abutting any sidewalk [. . .] shall be liable for any injury to property or personal injury [. . .] proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include the negligent failure to remove snow, ice, dirt or other material from the sidewalk.

Under Xiang Fu He, the Court of Appeals has taken the position that the duty imposed on landowners by Section 7-210 is a non-delegable one, meaning that a landowner has an absolute duty to pedestrians to maintain the sidewalks abutting its premises. Even if there exists a separate contract or lease in which a lessee or third-party is obligated to maintain the sidewalks, it will not be a defense to the absolute duty imposed by Section 7-210.

In reviewing the statutory language of Section 7-210, the Court of Appeals held that the clear, unambiguous language of § 7-210 demonstrates that the City of New York meant to impose a non-delegable duty upon landowners in maintaining the abutting sidewalks. It stated, “‘[O]wner’ means all owners, regardless of their out-of-possession status and whether the owner has contracted with the lessee or another to keep the sidewalk in reasonably safe condition.”

Xiang Fu He has certainly upended the out-of-possession landlord defense that many landlords in New York City were able rely upon to absolve themselves of liability in slip and falls. But, under the new Xiang Fu He ruling, those days are past.

The Court of Appeals summed it up best, saying, “While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-210.”

Anthony joined Perez & Morris in 2017. Prior to joining Perez & Morris, Anthony practiced with a law firm that handled personal injury, premises liability, and real estate litigation, amongst various other matters. He is a member of the New York State Bar Association, New Jersey State Bar Association, and the Columbian Lawyers Association of Rockland County.

Anthony is also an adjunct professor of Business Law at St. Thomas Aquinas College in Sparkill, New York, where he graduated magna cum laude in 2011 with a Bachelor’s Degree in History and a minor in Performing Arts. Read more

October 1, 2019

Motorized carts in retail stores

On September 19, 2019, in Rieger v. Giant Eagle, Inc., Slip Opinion No. 2019-Ohio-3745, the Ohio Supreme Court issued a decision involving motorized carts provided to patrons of retail stores. In the case, Giant Eagle provided a motorized cart to Ruth Kurka. Kurka, who was diagnosed with dementia, had never been trained on how to operate a motorized cart, but had been driving motorized carts for well over a year, drove them on a regular basis, and had no accidents. A Giant Eagle representative testified at deposition that there are no operational instructions on the carts, Giant Eagle assumes that all individuals who use the carts know how to drive them, and warnings on the carts are for the cart operators. Evidence was presented of 117 incidents involving motorized carts at various corporate-owned Giant Eagle stores from 2004 to 2012.

Barbara Rieger was at the Giant Eagle store, standing at the bakery counter, when her shopping cart was hit by Kurka’s motorized cart. Rieger was knocked to the ground and injured. Rieger filed a personal injury action against Kurka and Giant Eagle. Rieger asserted claims against Giant Eagle for negligence and negligent entrustment. The trial court denied Giant Eagle’s motion for directed verdict, and the jury awarded Rieger $121,000 in compensatory damages and $1,198,000 in punitive damages. The court of appeals affirmed. On further appeal, the Ohio Supreme Court reversed the court of appeals and held that there was insufficient evidence of causation as a matter of law to support the claims of negligence and negligent entrustment, and therefore, the trial court should have granted Giant Eagle’s motion for directed verdict.

Despite the outcome, the Court’s decision should nevertheless serve as a warning to retailers that provide motorized carts to patrons because, by implication, it held that claims for negligence and/or negligent entrustment against retailers that provide motorized carts are viable causes of action if the plaintiff can establish the elements of the claims. The Court found that Rieger failed to offer evidence that Giant Eagle’s failure to provide Kurka with instruction or training on how to operate motorized carts caused Ringer’s injuries. Therefore, for example, had Rieger provided testimony from Kurka that training would have prevented the accident and/or testimony from an expert witness that training would have prevented the accident, she could have satisfied all of the elements of her claims.

Retailers that provide motorized carts to patrons should institute protocols that could include vetting of patrons to whom motorized carts are provided, warnings to such patrons, training or instruction to such patrons, and warnings to other patrons of their establishments.

Mark comes to Perez Morris with over 20 years’ experience in business litigation and insurance defense work. Mark started his legal career at a small insurance defense firm, where he became the go-to person for business litigation and matters outside the “red light/green light” fact pattern.

Mark enjoys the academic aspects of the practice of law, including drafting dispositive motions and appellate briefs, he really excels on his feet in the courtroom, having tried nearly 100 cases in state and federal courts throughout Ohio. Mark’s style endears the jury to him and his clients and conveys the professionalism, creativity, and persuasiveness needed to drive results. Read more