Cincinnati Ins. Co. v. Byers
| Decision Date | 12 August 1998 |
| Docket Number | No. 97-3389,97-3389 |
| Parties | CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v. Fritz BYERS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Lisa A. Hesse (argued and briefed), Stephen C. Findley (briefed), Freund, Freeze & Arnold, Dayton, Ohio, for Plaintiff-Appellant. Richard S. Walinski (briefed), Cooper, Walinski & Cramer, Toledo, Ohio, Gerald R. Kowalski (argued and briefed), Manahan, Pietrykowski, Bamman & DeLaney, Toledo, Ohio, for Defendant-Appellee.
Before: BATCHELDER, DAUGHTREY, and GILMAN, Circuit Judges.
Cincinnati Insurance Company ("CIC") brought an action for legal malpractice against attorney Fritz Byers ("Byers"), alleging that Byers negligently failed to perfect an appeal from an Ohio state-court judgment entered against H.U. Tuttle & Sons, Inc. ("Tuttle"), an insured of CIC. The district court, on cross-motions for summary judgment, ruled in favor of Byers and entered judgment accordingly. The district court thereafter denied CIC's motion for relief from operation of the judgment brought under Rule 60(b)(6) of the Federal Rules of Civil Procedure. CIC now appeals from both the judgment and the denial of its Rule 60(b)(6) motion. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings.
Tuttle served as the general contractor on a construction project for B.P. Chemicals, Inc. ("B.P.") in Lima, Ohio. The various steel-erection tasks were subcontracted to Don R. Fruchey, Inc. ("Fruchey"), which employed Benjamin Colter ("Colter") as its job foreman. In May of 1989, Colter fell approximately 35 feet from a structural steel skeleton located on the job site and died shortly thereafter from severe internal injuries. At the time of Colter's fall and death, neither Tuttle nor Fruchey had supplied any fall-protection equipment in the form of safety belts, lanyards, safety lines, safety nets, temporary flooring, or cable-and-lanyard systems. The absence of such equipment violated the Occupational Safety and Health Act, Ohio Industrial Commission regulations, and the standards of the Associated General Contractors of America.
Colter's widow, as administrator of Colter's estate, brought an action for wrongful death against Tuttle and others in Ohio state court ("the Colter action"), alleging that Tuttle negligently failed to provide Colter with a safe place of work. CIC was obligated under a policy of insurance to indemnify and defend Tuttle regarding the Colter action.
The case was tried before a jury in June of 1994. Before charging the jury, the trial court, on its own initiative, determined that (1) an indemnity provision contained in the contract entered into between B.P. and Tuttle created a non-delegable duty on the part of Tuttle to provide Colter with a safe place of work, and (2) Tuttle breached that duty as a matter of law by failing to comply with the applicable job-safety regulations. The trial court overruled various objections made by Tuttle's trial counsel with respect to the proposed jury charge, which embodied the foregoing rulings. Consequently, the trial court submitted to the jury only the issues of proximate cause, damages, and comparative negligence. The jury returned a verdict awarding $1,900,000 in damages to Colter's estate. The award was reduced by 20% to account for Colter's own negligence, resulting in a net award of $1,520,000. In July of 1994, the trial court entered judgment in the amount of $1,520,000 against Tuttle ("the Colter judgment").
CIC then retained Byers to appeal the Colter judgment to the Ohio Court of Appeals on Tuttle's behalf. In its brief, which Byers prepared and filed, Tuttle asserted that the trial court had erred in instructing the jury that Tuttle breached a duty owed to Colter as a matter of law. Tuttle argued in support of its position that: (1) the indemnity provision contained in the Tuttle-B.P. contract did not create a duty enforceable by a third party such as Colter, and (2) even if Colter could enforce such a duty, Fruchey's noncompliance with applicable job-safety regulations did not establish that Tuttle breached that duty as a matter of law.
The Ohio Court of Appeals did not address the merits of the arguments submitted in Tuttle's brief. Instead, the appeal was dismissed as a result of Byers's failure to timely file the trial transcript and record on appeal, or to move for an extension of time to do so. CIC alleges that counsel for Colter's estate was actively pursuing a settlement of the Colter action during the pendency of the appeal in the summer of 1994. Byers, on the other hand, asserts that the only settlement activity with respect to the Colter action occurred after the appeal was dismissed. CIC claims that upon such dismissal, CIC lost bargaining leverage derived from the pendency of the appeal and therefore lost an opportunity to obtain a more favorable settlement. Having no other recourse, CIC settled the Colter action in January of 1995 for $1,450,000.
In January of 1996, CIC brought an action for legal malpractice against Byers in Ohio state court. CIC's complaint alleged that Byers's failure to timely file the trial transcript and the record on appeal (or to move for an extension of time to do so) with the Ohio Court of Appeals caused the dismissal of an otherwise meritorious appeal from the Colter judgment. Byers timely removed the action to the United States District Court for the Northern District of Ohio.
In November of 1996, CIC and Byers filed cross-motions for summary judgment on the issue of proximate cause (the other issues of duty and breach of duty being reserved by agreement). CIC acknowledged in its brief that under Jablonski v. Higgins, 6 Ohio Misc.2d 8, 10, 453 N.E.2d 1296 (Ohio Com.Pl.1983), a plaintiff bringing an action for legal malpractice arising from appellate representation bears the burden of proving that "if an appeal had been perfected, a reversal or a more favorable judgment would have resulted." 453 N.E.2d at 1298. That issue, in turn, revolved around the parties' competing arguments as to whether Tuttle's trial counsel adequately preserved the trial court's alleged errors for appellate review by making a timely and specific objection. Byers argued that Tuttle failed to object to the trial court's rulings with sufficient specificity. CIC, on the other hand, asserted that Tuttle preserved the errors by way of a general objection to the proposed charge. Alternatively, CIC contended that the trial court's rulings constituted plain error and thus were reviewable on appeal notwithstanding the absence of a timely and specific objection.
The district court, in a judgment filed on March 6, 1997, contemporaneously granted Byers's motion for summary judgment and denied the one filed by CIC. In so ruling, the district court, citing Jablonski, framed the threshold issue as whether the Ohio Court of Appeals would have reversed the Colter judgment if Byers had properly perfected the appeal. The district court concluded that Tuttle had not preserved the Ohio trial court's rulings for appellate review because Tuttle's trial counsel did not timely and specifically object to the proposed jury charge. Moreover, the district court concluded that the Ohio trial court's rulings did not rise to the level of plain error. The district court held, therefore, that CIC could not establish that Byers's failure to perfect the appeal proximately caused CIC's damages because the Ohio Court of Appeals would still have affirmed the Colter judgment.
On March 7, 1997, one day after the filing of the judgment disposing of the parties' cross-motions for summary judgment, CIC filed with the district court a supplemental memorandum in support of its motion for summary judgment and in opposition to the one filed by Byers. This document, which crossed in the mail with the judgment, brought to the district court's attention the case of Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997), a new decision in point which the Ohio Supreme Court had just decided on February 12, 1997.
In Vahila, the plaintiffs sued two attorneys and a law firm ("the attorney defendants") for damages arising from their representation in various civil, criminal, and administrative proceedings. The attorney defendants moved for summary judgment, arguing that the plaintiffs had failed to establish damages proximately caused by the alleged malpractice of the attorney defendants because the plaintiffs could not demonstrate that they (the plaintiffs) would have been successful in the underlying proceedings. The trial court ruled in favor of the attorney defendants on that basis, and the Ohio Court of Appeals affirmed. In reversing the Ohio Court of Appeals, the Ohio Supreme Court first addressed its prior decision in Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989), which held that a plaintiff can state a cause of action for legal malpractice without having to allege that he or she would have prevailed in the underlying criminal proceeding but for the malpractice. 538 N.E.2d at 1061. Expanding upon the principles set forth in Krahn, the Vahila court stated as follows:
[W]e reject any finding that the element of causation in the context of a legal malpractice action can be replaced or supplemented with a rule of thumb requiring that a plaintiff, in order to establish damage or loss, prove in every instance that he or she would have been successful in the underlying matter(s) giving rise to the complaint. This should be true regardless of the type of representation involved.
674 N.E.2d at 1168-69 (emphasis added). In so holding, the court noted that a standard requiring every legal-malpractice claimant to prove that he or she would have succeeded in the underlying matter "would be unjust, making any recovery virtually impossible for...
To continue reading
Request your trial
-
Thompson v. Bell
...court is left with a `definite and firm conviction that the trial court committed a clear error of judgment.'" Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578-79 (6th Cir.1998) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)). In other words, "Under the abuse of dis......
-
Gillett v. U.S., 5:01-CV-104.
...the court determines with a "definite and firm conviction that a clear error of judgment has been committed." Cincinnati Ins. Co., v. Byers, 151 F.3d 574, 578 (6th Cir.1998). Other courts have applied a de novo review standard. See, e.g., Light, 2002 WL 1465963, at * 3. The courts applying ......
-
U.S. v. Burns
...discretion only upon a "definite and firm conviction that the trial court committed a clear error of judgment." Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir.1998) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989)). Furthermore, even if the district court er......
-
Mitchell v. Rees
...post-judgment relief on rehearing, in the interest of justice to remedy a misinterpretation of the law); Cincinnati Insurance Co. v. Byers, 151 F.3d 574, 580 (6th Cir.1998)(extraordinary circumstances based upon a post-judgment change in the law); Overbee v. Van Waters & Rogers, 765 F.2d 57......
-
A change of heart or a change of law? Withdrawing a guilty plea under Federal Rule of Criminal Procedure 32(e).
...the time the judgment"); Dudosh v. City of Allentown, 722 F. Supp. 1233, 1236 (E.D. Pa. 1989). See generally Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 580 (6th Cir. 1998) (granting relief because "[t]he action of the Ohio Supreme Court in reversing itself within one year is certainly an u......