Appellate Decisions
Schuster v. Kokosing, (Ohio Court of Appeals, 5th Dist., 2010) was a second appeal in this dangerous intersection case. James and Cherry Schuster and their son were in a car wreck caused by a stop sign placed improperly by the Defendant contractor, Kokosing. After the trial judge directed a verdict for the Defendant in 2007, the appellate court reversed, finding ample evidence sufficient to carry the Schuster’s case to a jury. On remand, the trial judge again granted judgment against the Plaintiffs, but after another brief and argument presented by Jay Stoneking, the appellate court again reversed, ordering that the case proceed to trial. A new trial date has not yet been set.
Thakur v. ManorCare, (Ohio Court of Appeals, 6h Dist, 2009) was a nursing home wrongful death case in which the trial court failed to properly instruct the jury on the Ohio Nursing Home Resident’s Bill of Rights. After an adverse jury verdict, the trial court recognized its mistake and threw the verdict out. The Defendant, a national nursing home chain known as ManorCare, appealed. Jay Stoneking and Chris Regan filed responsive papers and Stoneking argued the case in Toledo, Ohio. The appellate court affirmed that the Plaintiffs were entitled to a new trial. The case subsequently settled confidentially after a mediation was held.
Palisades Collections v. Shorts v. AT&T, decided by the United States Court of Appeals for the Fourth Circuit in 2008, represented another piece of path-breaking appellate litigation by Bordas & Bordas. A panel of that Court determined that Americans who are sued by corporations or their proxies in state court are subject to class-action counterclaims that may not be removed to federal court. Read the opinion of the court and the dissent. Listen to the oral argument of the case.
In Nolan v. Conseco Health Ins. Co. and Brown, (Ohio 7th Dist. 2008), Scott Blass and Jay Stoneking preserved a six-figure jury award for insurance fraud in favor of one of Bordas & Bordas’ clients. The Defendants, Conseco Insurance Company was paying its agent, Brown, based on the number of policies sold and Brown was preparing and accepting false applications for “heart attack” policies and then Conseco was wrongfully denying claims in the rare event that they were made. The law made by this case helps ensure that Ohio residents have a remedy when they are defrauded by insurers and insurance agents selling these questionable policies and using unsavory and illegitimate business practices. The underlying trial also included a finding by the jury that the Defendant was liable for punitive damages. Read the opinion.
Schuster v. Kokosing Construction, (Ohio App. 5 Dist 2008), was a case where a trial judge intervened in a jury trial and refused to allow the jury to decide the case. Jay Stoneking and Chris Regan prosecuted the appeal successfully, insisting that the Plaintiffs were entitled to a full jury trial. The unanimous decision of the Fifth Appellate District in Ohio held that the Judge was wrong to stop the trial and dismiss the jury and that the jury should have been permitted to decide whether a Stop sign placed over 20 feet off the edge of the road was properly placed there by the construction company. The intersection at the corner of Rt 42 and US 250 in Ashland, Ohio, had multiple accidents and there was testimony that the Stop sign could not be seen well at night. Even worse, the State DOT had repeatedly told the construction company to put the sign closer to the road, in accordance with the state manuals. The appellate court remanded the case to the trial judge for a full jury trial on the merits. Read the opinion.
In State ex rel. Nationwide v. Karl, (W.Va. 2008), Jamie Bordas and Jay Stoneking of Bordas & Bordas, PLLC, won the right for West Virginia plaintiffs suing defendants insured by Nationwide Insurance Company to inquire about Nationwide's captive law firm, The Nationwide Trial Division. Since Nationwide Insurance typically pays jury awards in cases handled by the Nationwide Trial Division, Nationwide objected to the trial judge asking the jury whether they knew or had had contact with the lawyers from the Nationwide Trial Division. The Supreme Court of Appeals, in a 4-1 ruling, held that the plaintiff's right to know whether any prospective jurors were acquainted with the defendant's lawyers was more important than Nationwide's effort to hide its role in the case.
The Supreme Court of the United States of America refused the last-ditch appeal of Camden-Clark Memorial Hospital in early 2008. Camden-Clark Memorial Hospital v. Boggs became Bordas & Bordas’ first case to reach the nation’s highest Court and resulted in a victory when the Court refused Camden-Clark Memorial Hospital Corporation’s Certiorari Petition to overturn the $3,000,000.00 punitive damage verdict rendered against it in Wood County in 2006.
In State ex rel. Erie Insurance Property and Casualty Co. v. Mazzone, (W.Va. 2007), after multiple oral arguments and rounds of briefing, a unanimous Supreme Court of Appeals held that case-specific insurance reserve information was discoverable in bad faith insurance cases. As Justice Benjamin explained, "Where, as here, an insurer admits that its reserves for a particular claim are fact-dependant, i.e., set in light of the information available regarding a particular claim, the reserve amount is directly relevant and constitutes primary evidence of whether the insurer attempted, in bad faith, to settle a claim for substantially less than the amount it deemed reasonable and equitable compensation for the injuries sustained." (Benjamin, J., concurring). Read the unanimous opinion. Jamie Bordas, Jay Stoneking and Chris Regan briefed and argued the case. Read a press account of the decision. Read a press account of Justice Benjamin's concurring opinion, explaining how reserves are primary evidence of insurance bad faith when they are set vastly in excess of amounts offered as settlements.
In Mikesinovich v. Reynolds Memorial Hospital (W.Va. 2006), Bordas & Bordas established a clear parameter of the right to trial by a fair and impartial jury. The West Virginia Supreme Court of Appeals found, at the urging of Bordas & Bordas, that seating a juror whose spouse worked for the defendant hospital was reversible error. The error was also found to be prejudicial by the Supreme Court of Appeals, a finding indicating that the error deprived Mr. Mikesinovich of a fair trial. The case, argued by Jamie Bordas, built on the landmark case of Davis v. Wang , handled by his mother Linda Bordas in 1990, which also held that a trial judge may not seat jurors who have a pre-existing bias against the plaintiff’s claims. Geoff Brown and Jay Stoneking were instrumental in perfecting the appeal through their brief-writing efforts. Read the opinion of the Court. Read a press account of the decision.
In 2004, in Boggs v. Camden-Clark Memorial Hospital , et al., 216 W.Va. 656 (2004) (Rehearing denied, 5-0), the Supreme Court of Appeals reversed the dismissal of a lawsuit filed on behalf of the family of a schoolteacher who died of an anesthesia overdose prior to surgery for a broken ankle. Read the opinion of the Court. The Supreme Court of Appeals reinstated the medical malpractice lawsuit, and also ruled that the Medical Professional Liability Act, including its caps on damages, does not apply to misconduct other than medical negligence. .
In 2003, in State ex rel. Allstate v. Madden, 215 W.Va. 705 (2004), the Supreme Court of Appeals adopted the "crime-fraud exception" to the attorney-client privilege in an insurance dispute or bad faith insurance case. Click here to read the opinion of the Court. The crime-fraud exception provides that attorney-client privilege can not be used to cover up documents used by an insurance company or corporation when those documents are in furtherance of a fraud or a crime.
In 2003, in Patterson v. Zdanski, Ohio App. 7 Dist., Sept. 30th, 2003 WL 22339492, Bordas & Bordas won the right for injured victims to protect the privacy of their medical records that are unrelated to the injuries they are claiming.
In 2001, in Potts v. West Virginia Insurance Guaranty Association, 209 W.Va. 68 (2001), the Supreme Court of Appeals held that each claimant was entitled to collect the statutory cap on damages mandated by West Virginia's Insurance Guaranty Act. Read the opinion of the Court. The trial court had held, in a medical malpractice cases that the entire family of a victim of breast cancer misdiagnosis had to share a single cap. The Supreme Court of Appeals reversed, holding that each victim was entitled to a separate $300,000.00 cap.
Klettner v. State Farm Mut. Auto. Ins. Co., 205 W.Va. 587 (1999). This case insured fairness for people pursuing insurance companies for bad faith by making sure they received a fair amount of time to file their cases after resolving the insurance claim itself.
In 1994, Phillips v. State Auto. Mut. Ins. Co., 711 N.E.2d 1080 (Ohio 7th App. 1998), protected Ohio insureds from the retroactive application of laws limiting their rights to insurance coverage and allowed insured motorists to settle liability claims without prejudicing their rights to under insurance in certain contexts.
In 1997, Andrews v. Reynolds Memorial Hosp., Inc., 201 W.Va. 624 (1997). The Andrews case established the right of children who suffer permanent injuries as a result of wrongdoing to recover for their future lost wages.
In 1996, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635 (1996) established the right of workers who are wrongfully exposed to toxic chemicals to sue for the fear of disease and death that such exposure brings.
In 1994, Dairyland Insurance Co. v. Bradley, 192 W.Va. 199 (W.Va. 1994) upheld the rights of injured victims to obtain underinsured motorist coverage as a guest passenger. The insurance company had tried to limit the rights of West Virginians to get all the applicable coverage, instead of just some of it.
In 1993, Martin v. Smith, 190 W.Va. 286 (W.Va.1993) established the right of a plaintiff to collect lost earnings in a case arising from the death of an infant.
In 1993, Patrick v. Scaggs, Ohio App. 7 Dist., Aug. 30, 1993 WL 343124, upheld the right of injured victims to a trial before a jury on fact issues such as the assured clear distance rule and reversed a common pleas court decision granting summary judgment to the defendants on such an issue.
In 1990, Davis v. Wang, 184 W.Va. 222 (1990), protected individuals who are injured through the negligence of another by guaranteeing them a jury that is free of individuals who refuse to award monetary damages for injuries.
