Bill Text: OH SB326 | 2013-2014 | 130th General Assembly | Introduced

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Bill Title: Relative to the set-off of collateral recoveries against damages awarded in certain civil actions against state universities or colleges.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2014-04-08 - To Civil Justice [SB326 Detail]

Download: Ohio-2013-SB326-Introduced.html

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As Introduced

130th General Assembly Regular Session 2013-2014

S. B. No. 326

Senator Eklund 

Cosponsor: Senator Coley 

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A BILL

To amend sections 2743.02 and 3345.40 of the Revised

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Code relative to the set-off of collateral

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recoveries against damages awarded in certain

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civil actions against state universities or

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colleges.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2743.02 and 3345.40 of the Revised	6
Code be amended to read as follows:	7

Sec. 2743.02.  (A)(1) The state hereby waives its immunity	8
from liability, except as provided for the office of the state	9
fire marshal in division (G)(1) of section 9.60 and division (B)	10
of section 3737.221 of the Revised Code and subject to division	11
(H) of this section, and consents to be sued, and have its	12
liability determined, in the court of claims created in this	13
chapter in accordance with the same rules of law applicable to	14
suits between private parties, except that the determination of	15
liability is subject to the limitations set forth in this chapter	16
and, in the case of state universities or colleges, in section	17
3345.40 of the Revised Code, and except as provided in division	18
(A)(2) or (3) of this section. To the extent that the state has	19
previously consented to be sued, this chapter has no	20
applicability.	21

Except in the case of a civil action filed by the state,	22
filing a civil action in the court of claims results in a complete	23
waiver of any cause of action, based on the same act or omission,	24
that the filing party has against any officer or employee, as	25
defined in section 109.36 of the Revised Code. The waiver shall be	26
void if the court determines that the act or omission was	27
manifestly outside the scope of the officer's or employee's office	28
or employment or that the officer or employee acted with malicious	29
purpose, in bad faith, or in a wanton or reckless manner.	30

(2) If a claimant proves in the court of claims that an	31
officer or employee, as defined in section 109.36 of the Revised	32
Code, would have personal liability for the officer's or	33
employee's acts or omissions but for the fact that the officer or	34
employee has personal immunity under section 9.86 of the Revised	35
Code, the state shall be held liable in the court of claims in any	36
action that is timely filed pursuant to section 2743.16 of the	37
Revised Code and that is based upon the acts or omissions.	38

(3)(a) Except as provided in division (A)(3)(b) of this	39
section, the state is immune from liability in any civil action or	40
proceeding involving the performance or nonperformance of a public	41
duty, including the performance or nonperformance of a public duty	42
that is owed by the state in relation to any action of an	43
individual who is committed to the custody of the state.	44

(b) The state immunity provided in division (A)(3)(a) of this	45
section does not apply to any action of the state under	46
circumstances in which a special relationship can be established	47
between the state and an injured party. A special relationship	48
under this division is demonstrated if all of the following	49
elements exist:	50

(i) An assumption by the state, by means of promises or	51
actions, of an affirmative duty to act on behalf of the party who	52
was allegedly injured;	53

(ii) Knowledge on the part of the state's agents that	54
inaction of the state could lead to harm;	55

(iii) Some form of direct contact between the state's agents	56
and the injured party;	57

(iv) The injured party's justifiable reliance on the state's	58
affirmative undertaking.	59

(B) The state hereby waives the immunity from liability of	60
all hospitals owned or operated by one or more political	61
subdivisions and consents for them to be sued, and to have their	62
liability determined, in the court of common pleas, in accordance	63
with the same rules of law applicable to suits between private	64
parties, subject to the limitations set forth in this chapter.	65
This division is also applicable to hospitals owned or operated by	66
political subdivisions that have been determined by the supreme	67
court to be subject to suit prior to July 28, 1975.	68

(C) Any hospital, as defined in section 2305.113 of the	69
Revised Code, may purchase liability insurance covering its	70
operations and activities and its agents, employees, nurses,	71
interns, residents, staff, and members of the governing board and	72
committees, and, whether or not such insurance is purchased, may,	73
to the extent that its governing board considers appropriate,	74
indemnify or agree to indemnify and hold harmless any such person	75
against expense, including attorney's fees, damage, loss, or other	76
liability arising out of, or claimed to have arisen out of, the	77
death, disease, or injury of any person as a result of the	78
negligence, malpractice, or other action or inaction of the	79
indemnified person while acting within the scope of the	80
indemnified person's duties or engaged in activities at the	81
request or direction, or for the benefit, of the hospital. Any	82
hospital electing to indemnify those persons, or to agree to so	83
indemnify, shall reserve any funds that are necessary, in the	84
exercise of sound and prudent actuarial judgment, to cover the	85
potential expense, fees, damage, loss, or other liability. The	86
superintendent of insurance may recommend, or, if the hospital	87
requests the superintendent to do so, the superintendent shall	88
recommend, a specific amount for any period that, in the	89
superintendent's opinion, represents such a judgment. This	90
authority is in addition to any authorization otherwise provided	91
or permitted by law.	92

(D) Recoveries against the state shall be reduced by the	93
aggregate of insurance proceeds, disability award, or other	94
collateral recovery received by the claimant. This division does	95
not apply to civil actions in the court of claims against a state	96
university or college under the circumstances described in section	97
3345.40 of the Revised Code. The collateral benefitsrecovery	98
provisions of division (B)(2) of that section apply under those	99
circumstances.	100

(E) The only defendant in original actions in the court of	101
claims is the state. The state may file a third-party complaint or	102
counterclaim in any civil action, except a civil action for ten	103
thousand dollars or less, that is filed in the court of claims.	104

(F) A civil action against an officer or employee, as defined	105
in section 109.36 of the Revised Code, that alleges that the	106
officer's or employee's conduct was manifestly outside the scope	107
of the officer's or employee's employment or official	108
responsibilities, or that the officer or employee acted with	109
malicious purpose, in bad faith, or in a wanton or reckless manner	110
shall first be filed against the state in the court of claims that	111
has exclusive, original jurisdiction to determine, initially,	112
whether the officer or employee is entitled to personal immunity	113
under section 9.86 of the Revised Code and whether the courts of	114
common pleas have jurisdiction over the civil action. The officer	115
or employee may participate in the immunity determination	116
proceeding before the court of claims to determine whether the	117
officer or employee is entitled to personal immunity under section	118
9.86 of the Revised Code.	119

The filing of a claim against an officer or employee under	120
this division tolls the running of the applicable statute of	121
limitations until the court of claims determines whether the	122
officer or employee is entitled to personal immunity under section	123
9.86 of the Revised Code.	124

(G) If a claim lies against an officer or employee who is a	125
member of the Ohio national guard, and the officer or employee	126
was, at the time of the act or omission complained of, subject to	127
the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28 U.S.C.	128
2671, et seq., the Federal Tort Claims Act is the exclusive remedy	129
of the claimant and the state has no liability under this section.	130

(H) If an inmate of a state correctional institution has a	131
claim against the state for the loss of or damage to property and	132
the amount claimed does not exceed three hundred dollars, before	133
commencing an action against the state in the court of claims, the	134
inmate shall file a claim for the loss or damage under the rules	135
adopted by the director of rehabilitation and correction pursuant	136
to this division. The inmate shall file the claim within the time	137
allowed for commencement of a civil action under section 2743.16	138
of the Revised Code. If the state admits or compromises the claim,	139
the director shall make payment from a fund designated by the	140
director for that purpose. If the state denies the claim or does	141
not compromise the claim at least sixty days prior to expiration	142
of the time allowed for commencement of a civil action based upon	143
the loss or damage under section 2743.16 of the Revised Code, the	144
inmate may commence an action in the court of claims under this	145
chapter to recover damages for the loss or damage.	146

The director of rehabilitation and correction shall adopt	147
rules pursuant to Chapter 119. of the Revised Code to implement	148
this division.	149

Sec. 3345.40.  (A) As used in this section:

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(1) "State university or college" has the same meaning as in	151
division (A)(1) of section 3345.12 of the Revised Code.	152

(2)(a) "The actual loss of the person who is awarded the	153
damages" includes all of the following:	154

(i) All wages, salaries, or other compensation lost by an	155
injured person as a result of the injury, including wages,	156
salaries, or other compensation lost as of the date of a judgment	157
and future expected lost earnings of the injured person;	158

(ii) All expenditures of an injured person or of another	159
person on behalf of an injured person for medical care or	160
treatment, for rehabilitation services, or for other care,	161
treatment, services, products, or accommodations that were	162
necessary because of the injury;	163

(iii) All expenditures to be incurred in the future, as	164
determined by the court, by an injured person or by another person	165
on behalf of an injured person for medical care or treatment, for	166
rehabilitation services, or for other care, treatment, services,	167
products, or accommodations that will be necessary because of the	168
injury;	169

(iv) All expenditures of a person whose property was injured	170
or destroyed, or of another person on behalf of such a person, in	171
order to repair or replace the property that was injured or	172
destroyed;	173

(v) All expenditures of an injured person, of a person whose	174
property was injured or destroyed, or of another person on behalf	175
of an injured person or a person whose property was injured or	176
destroyed, in relation to the actual preparation or presentation	177
of the claim of the person;	178

(vi) Any other expenditures of an injured person, of a person	179
whose property was injured or destroyed, or of another person on	180
behalf of an injured person or a person whose property was injured	181
or destroyed, that the court determines represent an actual loss	182
experienced because of the personal or property injury or property	183
loss.	184

(b) "The actual loss of the person who is awarded the	185
damages" does not include either of the following:	186

(i) Any fees paid or owed to an attorney for any services	187
rendered in relation to a personpersonal or property injury or	188
property loss;	189

(ii) Any damages awarded for pain and suffering, for the loss	190
of society, consortium, companionship, care, assistance,	191
attention, protection, advice, guidance, counsel, instruction,	192
training, or education of an injured person, for mental anguish,	193
or for any other intangible loss.	194

(B) Notwithstanding any other provision of the Revised Code	195
or rules of a court to the contrary, in an action against a state	196
university or college to recover damages for injury, death, or	197
loss to personsperson or property caused by an act or omission of	198
the state university or college itself, by an act or omission of	199
any trustee, officer, or employee of the state university or	200
college while acting within the scope of his employment or	201
official responsibilities, or by an act or omission of any other	202
person authorized to act on behalf of the state university or	203
college that occurred while hethe person was engaged in	204
activities at the request or direction, or for the benefit, of the	205
state university or college, the following rules shall apply:	206

(1) Punitive or exemplary damages shall not be awarded;

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(2) If a plaintiff receives or is entitled to receive	208
benefits for injuries or loss allegedly incurred from a policy or	209
policies of insurance or any other source, the benefits shall be	210
disclosed to the court, and the amount of the benefits shall be	211
deducted from any award against the state university or college	212
recovered by the plaintiff.Recoveries against a state university	213
or college shall be reduced by the aggregate of insurance	214
proceeds, disability award, settlements, or any other collateral	215
recovery the plaintiff receives or is entitled to receive. No	216
insurer or other person is entitled to bring a civil action under	217
a subrogation provision in an insurance or other contract against	218
a state university or college with respect to such benefitsany of	219
those collateral recoveries.	220

Nothing in this division affects or shall be construed to	221
limit the rights of a beneficiary under a life insurance policy or	222
the rights of sureties under fidelity or surety bonds.	223

(3) There shall not be any limitation on compensatory damages	224
that represent the actual loss of the person who is awarded the	225
damages. However, except in wrongful death actions brought	226
pursuant to Chapter 2125. of the Revised Code, damages that arise	227
from the same cause of action, transaction or occurrence, or	228
series of transactions or occurrences and that do not represent	229
the actual loss of the person who is awarded the damages shall not	230
exceed two hundred fifty thousand dollars in favor of any one	231
person. The limitation on damages that do not represent the actual	232
loss of the person who is awarded the damages provided in this	233
division does not apply to court costs that are awarded to a	234
plaintiff, or to interest on a judgment rendered in favor of a	235
plaintiff, in an action against a state university or college.	236

Section 2. That existing sections 2743.02 and 3345.40 of the	237
Revised Code are hereby repealed.	238

Section 3. This act's amendment of section 3345.40 of the	239
Revised Code to provide that settlements received by a plaintiff	240
are collateral recoveries that are reduced from any recoveries of	241
a plaintiff in a civil action against a state university or	242
college for damages for injury, death, or loss to person or	243
property abrogates the decision of the Court of Appeals of the	244
Tenth District in Adae v. Ohio, 2013-Ohio-23, 2013 WL 85200, that	245
settlement proceeds are not subject to collateral set-off against	246
recoveries by a plaintiff against a state university or college.	247