The defense attorneys of McNeal Schick Archibald & Biro Co., LPA secured summary judgment in favor of a bowling alley owner in a negligence action. The Plaintiffs alleged that the bowling alley was negligent by failing to warn of the alleged hazard of the bowling railing system. The Court found that the crush warning on the bumper created an open and obvious hazard as a matter of law. For additional information, please contact Taylor Dennen (tdennen@msablaw.com) or Patrick Gump (pgump@msablaw.com).
The defense attorneys of McNeal Schick Archibald & Biro Co., LPA secured a summary judgment ruling in favor of an alleged restaurant owner in a negligence action. The Plaintiff alleged that the restaurant negligently prepared her food, misinformed her regarding ingredients in the food and that she suffered an allergic reaction from the food.. The Plaintiff also sought punitive damages. Summary judgment was granted in favor of the alleged restaurant owner based upon our arguments that there was no basis for personal liability against the Defendant, the Plaintiff failed to present the requisite expert testimony to prove medical causation and the testimony of Plaintiff did not support a punitive damages award. For additional information, please contact Jesse M. Schmidt (jschmidt@msablaw.com).
Brian Winchester (btw@msablaw.com) and Chad Schmitt (cs@msablaw.com) secured the reversal of an adverse summary judgment ruling on an insurance coverage issue through an appeal to Ohio’s Fourth District Court of Appeals. The coverage issues related to a fatality and catastrophic injuries stemming from a trucking accident. The insurance coverage lawyers of McNeal Schick were able to persuade the Fourth District Court of Appeals that the policy was not ambiguous and that applicable exclusions precluded coverage for the accident. Please reach out to Brian or Chad if you have any questions or wish to obtain further information regarding the court’s ruling.
On June 23, 2022 the insurance coverage lawyers of McNeal Schick secured a ruling rejecting a policyholders’ request to compel appraisal on a property policy where the insurer had denied coverage in its entirety. For further information please feel free to contact Brian Winchester (btw@msablaw.com) .
On May 27, 2022, the insurance defense attorneys of McNeal Schick secured summary judgment in favor of a property owner client in a trip and fall action before the Stark County Court of Common Pleas. Judgment was issued based upon the Plaintiff’s inability to identify the alleged defect as well as application of the open and obvious doctrine where the Plaintiff testified that she could not see the alleged defect because the parking lot was dimly lit at the time of the alleged fall. For further questions, please feel free to contact Brian Winchester (btw@msablaw.com) or Chad Schmitt (cs@msablaw.com) #premisesliability #litigation #summaryjudgment
On May 14, 2022, the insurance coverage lawyers of McNeal Schick secured judgment on the pleadings in the Medina County, Ohio Court of Common Pleas, in favor of their Insurance Carrier client. The Court found that the insurance carrier had no duty to defend or indemnify the tile contractor as to the claims of defective workmanship and breach of contract raised by the Plaintiffs as they did not allege an “occurrence” that triggered coverage. Moreover, the Plaintiffs’ claims were otherwise excluded by certain exclusions in the policy. For further information, please contact Patrick Gump (pgump@msablaw.com).
On February 14, 2022, the insurance coverage lawyers of McNeal Schick secured judgment on the pleadings in the Lake County, Ohio Court of Common Pleas, in favor of their Insurance Carrier client. The Court found that, under the facts and circumstances of the case, Plaintiff could only recover against the Defendant/Insured under Ohio’s Dram Shop Act, R.C. § 4399.18. Because this necessarily would require Plaintiff to prove either (1) the Insured sold alcoholic beverages to a “noticeably intoxicated” person; or (2) the Insured sold alcoholic beverages to someone under the legal drinking age, the Court found that the Liquor Liability exclusion contained in the applicable policy extinguished the Insurance Carrier’s obligation to defend and/or indemnify the Insured in this action. For further information please contact Brian Winchester (btw@msablaw.com) or Kevin Buryanek (kevinb@msablaw.com).
McNeal Schick partners Brian T. Winchester and Patrick J. Gump and of counsel John C. Cubar have been selected to the 2022 Ohio Super Lawyers list – all in the area of construction litigation. The inclusion on the Super Lawyers list is limited to only 5% of the attorneys in Ohio. This is Patrick’s first time being designated as a Super Lawyer. Brian and John have maintained their designations for the past 6 and 11 years, respectively.
On December 10, 2021, the defense attorneys of McNeal Schick secured summary judgment in favor of Defendants and against Plaintiff in a negligence action arising from a motor vehicle collision. Summary Judgment was granted on the basis that Plaintiff could not establish that Defendants proximately caused her injury and/or medical expenses as she had not provided an expert witness report in advance of the Court's expert witness deadline. For further information please contact Patrick Gump (pgump@msablaw.com) or Chad Schmitt (cs@msablaw.com).
The construction litigation attorneys of McNeal Schick successfully defended a counterclaim brought against an architect in a proceeding before the American Arbitration Association. Following the hearing, the arbitrator entered judgment in favor of the architect on all claims asserted against him and also awarded the architect his unpaid fees. The attorneys of McNeal Schick were able to establish through the architect’s testimony and that of an independent expert that the architect met the applicable standard of care in the industry. For further questions, please feel free to contact Brian T. Winchester – btw@msablaw.com or Patrick J. Gump – pgump@msablaw.com.
On August 6, 2021, the defense attorneys of McNeal Schick secured judgment in favor of their client following a bench trial in Ottawa County Municipal Court. Upon the conclusion of plaintiff’s case in chief, the client moved for and was granted an entry of judgment under Ohio’s Civil Rules, with the Court agreeing that plaintiff had failed to present expert testimony regarding the standard of care required when winterizing a watercraft and evidence of plaintiff’s alleged damages. For further information please contact Brian Winchester, (btw@msablaw.com) or Kevin Buryanek, (kevinb@msablaw.com).
On August 5, 2021, the defense attorneys of McNeal Schick secured summary judgment in the United States District Court for the Northern District of Ohio in favor of their insurance carrier client. The Court found that under the language of the applicable policy of insurance, and in light of the evidence presented, the carrier properly paid the insured’s claims for loss of business income and property damage subsequent to a fire loss. The Court further agreed that the insured had breached the applicable policy’s concealment or fraud clause by materially misrepresenting the value of its claim. As such, the Court dismissed the insured’s claims for breach of contract, bad faith and negligence with prejudice. For further information please contact Brian Winchester, (btw@msablaw.com) or Kevin Buryanek, (kevinb@msablaw.com).
On July 27, 2021, the insurance coverage litigators at McNeal Schick, including Brian Winchester and Chad Schmitt, secured summary judgment in favor of their client-insurer in an interpleader/declaratory judgment action. They successfully argued that under both Ohio’s statutory framework for UIM coverage and the terms of the policy, payments of $497,805.00 and $492,298.00 made under a tortfeasor’s liability policy of insurance would apply as setoff against the $1,000,000.00 policy limit of the UIM coverage, reducing the available per-accident limit of coverage to $9,897.00 and confirming that the insurer’s deposit of $9,897.00 pursuant to the interpleader action satisfied any UIM obligations under the Policy. For further information please contact Chad Schmitt, (cs@msablaw.com) or Brian Winchester, (btw@msablaw.com).
On July 23, 2021, the defense attorneys of McNeal Schick secured summary judgment from the Henry County, Ohio Court of Common Pleas in favor of their client, finding the client was not an “owner, keeper, or harborer” of a dog that allegedly caused injury to Plaintiff and, therefore, could not be held liable under Ohio Revised Code Section 955.28. For further information please contact Brian Winchester, btw@msablaw.com or Kevin Buryanek kevinb@msablaw.com.
During the week of July 19, 2021, the trial lawyers of McNeal Schick proceeded to a jury trial in the Cuyahoga County, Ohio Court of Common Pleas. The claim involved several hundred thousand dollars of property damage being subrogated against an HVAC contractor that allegedly caused a building collapse. After three hours of deliberation, the jury returned a defense verdict in favor of the firm’s client. For further information, please feel free to contact Brian Winchester, btw@msablaw.com or Jesse Schmidt, jschmidt@msablaw.com.
On July 1, 2021, the appellate lawyers of McNeal Schick obtained a favorable decision in the Eighth District Court of Appeals in favor of a local business owner who was sued for injuries a plaintiff suffered on the subject premises. The Eighth District Court of Appeals reiterated that a property owner has no duty to warn a business invitee of unknown defects that may exist on the premises. For further information, please feel free to contact Patrick J. Gump, pgump@msablaw.com or Jesse Schmidt, jschmidt@msablaw.com.
The insurance coverage litigators at McNeal Schick, including Brian Winchester and Bob Terbrack obtained a favorable ruling for their client in the Erie County Court of Common Pleas. They successfully argued that claimants were not entitled to coverage under an auto or a homeowners policy when a third-party’s vehicle collided into claimant’s property based on the expiration of the internal contractual statute of limitations and the fact that the emotional distress claims for damage to property did not constitute bodily injury as required to trigger UM/UIM coverage. For additional information, please see the docket in Erie County Case No. 2020-CV-0216.
On June 4, 2021, the civil litigation attorneys at McNeal Schick secured a Summary Judgment ruling from the Clermont County, Ohio Court of Common Pleas in favor of an auto dealership/lessor/alleged employer defending against claims of negligent entrustment, respondeat superior liability, and wrongful death on the basis that Plaintiffs’ claims against it were preempted under the Graves Amendment. For further information please contact Chad Schmitt (cs@msablaw.com) or Brian Winchester (btw@msablaw.com).
On June 3, 2021, the litigation lawyers of McNeal Schick obtained a favorable summary judgment ruling on behalf of a Homeowners Association against a member challenge the enforcement of a Declaration of Restrictions concerning the erection of a fence in violation of the applicable Declarations. The trial court found in favor of the Association and held that the proposed fence would violate the provisions of the Declaration of Restrictions. Further, the trial court held that the members challenging the enforcement failed to provide any evidence that the Association had failed to enforce the Declarations as to other members of the Association. For further information, please feel free to contact Patrick J. Gump, pgump@msablaw.com.
On April 8, 2021, the insurance coverage lawyers of McNeal Schick secured a summary judgment ruling in favor of their insurance carrier client finding that the carrier had no duty to defend or indemnify the insured for an alleged rape of one patron of the insured bar by another patron of the insured bar. The Trumbull County Court of Common Pleas found no occurrence and no duty to defend or indemnify based on the unambiguous liquor liability and sexual abuse and molestation exclusions.
McNeal Schick is proud to announce that attorney Bob Terbrack has joined the firm as a partner. Bob brings a great deal of varied experience and depth to the firm. Bob has been a judicial staff attorney in the Cuyahoga County Court of Common Pleas, worked for a plaintiff’s mass tort firm, and most recently was a partner and practice group manager for a regional law firm.
On December 17, 2020, the insurance coverage lawyers of McNeal Schick secured a judgment on the pleadings ruling from the Seneca County, Ohio Common Pleas Court in favor of their insurance carrier client finding no duty to defend or indemnify its insured for claims of Dram Shop violations and common law negligence. The court's ruling was based upon the Dram Shop Act being the sole and exclusive remedy against a liquor permit holder in conjunction with the policy's liquor liability exclusion. For further information please contact Kevin Buryanek (kevinb@msablaw.com) or Brian Winchester (btw@msablaw.com).
In a state-wide class totaling less than 100 lawyers, we have two of Ohio’s Construction Litigation Super Lawyers! McNeal Schick wants to congratulate partners John C. Cubar (jcc@msablaw.com) and Brian Winchester (btw@msablaw.com) for being selected again for inclusion in the 2021 edition of Ohio Super Lawyers in the field of Construction Litigation. This marks five years in a row of both being selected together for Construction Litigation and John’s tenth consecutive year!
On December 3, 2020 the construction and design professional defense attorneys from McNeal Schick secured a ruling from the United States District Court, Northern District of Ohio granting their Motion to Dismiss on claims against an architect regarding alleged design and construction ADA violations based on a statutory interpretation of the ADA. For further information please contact Brian Winchester (btw@msablaw.com) or Jesse Schmidt (jschmidt@msablaw.com).
The insurance coverage attorneys from McNeal Schick secured an order in the Franklin County Court of Common Pleas on a first party uninsured/underinsured motorist and bad faith claim bifurcating the bad faith claims and staying all discovery related to the bad faith claim. For further information please feel free to contact Jesse Schmidt (jschmidt@msablaw.com) or Brian Winchester (btw@msablaw.com).
The insurance defense and civil litigation attorneys from McNeal Schick secured a summary judgment ruling in the Franklin County Court of Common Pleas in favor of their towing company client dismissing plaintiff’s claims with prejudice pursuant to a lack of proximate cause and res judicata. For further information please feel free to contact Chad Schmitt (cs@msablaw.com) or Brian Winchester (btw@msablaw.com).
On November 17, 2020, the attorneys at McNeal Schick secured a court order enforcing an arbitration clause and staying the personal injury proceedings and the personal injury lawsuit related to an alleged defective vehicle pending the outcome of the arbitration proceedings. For questions please feel free to contact Chad Schmitt, cs@msablaw.com or Brian Winchester, btw@msablaw.com.
On August 17, 2020, the appellate attorneys of McNeal Schick secured a decision from the Eleventh District Court of Appeals affirming summary judgment in favor of their title company client regarding claims stemming from a deed which was modified after its initial recording. For further information, please feel free to contact Brian Winchester, btw@msablaw.com, or Chad Schmitt, cs@msablaw.com.
While in person court appearances have been limited the past few months, the courts do continue to innovate and operate. On July 8, 2020 McNeal Schick Partner Brian Winchester (btw@msablaw.com) participated in Oral Argument before Ohio's 11th District Court of Appeals via Zoom.
On June 24, 2020, the premise liability lawyers of McNeal Schick successfully secured a summary judgment ruling in favor of a small business owner in the Cuyahoga County Court of Common Pleas. The Plaintiff suffered physical injuries that he alleged were caused by the negligence of the restaurant in permitting a dangerous conditions to exist on its premises. If you would like further information, contact Patrick J. Gump (pgump@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com) .
On June 24,2020, the civil defense lawyers of McNeal Schick successfully secured a summary judgment ruling in favor of a Landlord in the Summit County Court of Common Pleas. The tenant suffered significant physical injuries that she alleged were caused by alleged violations of the Landlord-Tenant Act and the negligence of the landlord in permitting a dangerous condition to exist on the subject premises. However, the claims were barred by the doctrine of res judicata as the tenant failed to raise the claims during the eviction proceedings in the applicable municipal court as a compulsory counterclaim. If you would like further information, contact Patrick J. Gump (pgump@msablaw.com).
On April 10, 2020, the insurance coverage lawyers of McNeal Schick secured the dismissal of claims against its insurance carrier’s client on a third party claim for declaratory judgment with the Medina County Court of Common Pleas finding that the third party claimant lacked standing to pursue a direct claim for declaratory judgment regarding insurance coverage. For further information please feel free to contact Brian Winchester (btw@msablaw.com) or Kevin Buryanek (kevinb@msablaw.com).
On March 26, 2020, the insurance coverage lawyers of McNeal Schick secured judgment on the pleadings in favor of their insurance carrier-client on a wrongful death claim in the Lucas County, Ohio Court of Common Pleas. We successfully had the court apply the assault and battery exclusion under the applicable insurance policy to find as a matter of law that no duty to defend or indemnity was required under the policy of insurance. For further information, please feel free to contact Brian Winchester btw@msablaw.com or Patrick Gump pgump@msablaw.com.
McNeal Schick is proud to announce that Kevin Buryanek has joined the firm as an associate! Kevin is a 2019 cum laude graduate of Cleveland-Marshall College of Law. Kevin has jumped right in to the practice of law with the firm researching and writing.
Statute of Repose update – after taking over defense of the design professional defendant, the construction lawyers of McNeal Schick secured Ohio Supreme Court review and reversal of an adverse appellate decision, changing the landscape of the past 30 years of Ohio case law that previously limited the applicability of Ohio’s statute of repose. After remand to the Third District Court of Appeals from the Ohio Supreme Court, on December 9, 2019, the dismissal of claims against the design professional was confirmed. For further information, feel free to contact Patrick J. Gump (pgump@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
Once again, our construction practice is being recognized. McNeal Schick wants to congratulate partners John C. Cubar (jcc@msablaw.com) and Brian T. Winchester (btw@msablaw.com) for being selected again for inclusion in the 2020 edition of Ohio Super Lawyers in the field of Construction Litigation. This marks four years in a row of both being selected together for Construction Litigation and John’s ninth consecutive year!
After assuming defense of a third party defendant contractor in a residential construction claim, the construction attorneys of McNeal Schick successfully secured the voluntary dismissal of their client from the litigation after filing a comprehensive Motion for Judgment on the Pleadings. This resulted in the dismissal of all claims against the firm’s client prior to engaging in any deposition practice. For further information contact Brian T. Winchester (btw@msablaw.com) or Chad Schmitt (cs@msablaw.com).
On October 23, 2019 the civil litigation attorneys from McNeal Schick secured the dismissal of its surety client on a third party complaint. The client had issued a fidelity bond to an estate fiduciary and was then sued in the General Division of the Common Pleas Court. We were able to secure the dismissal of the surety based upon the lack of jurisdiction in the General Division. For further information see Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
Marilyn J. Singer of McNeal Schick, will be speaking in Perrysburg, Ohio on November 15, 2019 on the litigation of knee and back and neck injuries. For more information, please visit the seminar webpage: Injury Claims: Anatomy & Physiology Made Simple
On October 16, 2019, the insurance coverage attorneys at McNeal Schick secured a dismissal of all claims against their insurance carrier client and a settlement in the client’s favor on a crossclaim for indemnity and / or contribution against another insurance carrier who covered the subject loss. The other insurance carrier and the plaintiffs’ insurance agent will compensate the plaintiff property owners for additional claimed losses, with no contribution from the client, who made payments to the plaintiffs prior to suit. For further information, contact Jesse M. Schmidt (jschmidt@msablaw.com) or Brian T. Winchester (btw@msablaw.com)
On September 16, 2019, the civil defense attorneys of McNeal Schick Archibald & Biro Co., LPA secured a summary judgment ruling in the Franklin County Court of Common Pleas, finding that the Defendant was not the proximate cause of Plaintiff’s alleged injuries. For further information, please contact Brian T. Winchester at btw@msablaw.com or Chad Schmitt at cs@msablaw.com
On July 17, 2019, Patrick J. Gump (pgump@msablaw.com and Brian T. Winchester (btw@msablaw.com) secured a favorable ruling(PDF link) from the Ohio Supreme Court that holds that Ohio’s construction statute of repose applies to claims against architects, engineers, and contractors regardless of whether the claim is brought as a tort claim or a breach of contract claim. After an adverse appellate decision, the construction and appellate lawyers from McNeal Schick took over the case for the design professional and led the charge to secure Supreme Court review and ultimately its decision in this matter through their own efforts and calling upon industry support for their arguments that overturned 30 years of prior case law.
OOn July 17, 2019 the insurance coverage lawyers of McNeal Schick secured a summary judgment ruling (PDF link) in favor of an insurance carrier finding that as a matter of law, the insureds prior bankruptcy petition and its inconsistency with their testimony and their insurance claim violated the terms and conditions of the applicable homeowners policy. In applying the doctrine of judicial estoppel the Wyandot County Court of Common Pleas stated:
Sifting through all of the facts demonstrates that plaintiffs made a conscious effort to appear impoverished for their bankruptcy proceeding and quite the opposite when seeking insurance proceeds.
For further information, contact Jesse Schmidt, Jesse M. Schmidt (jschmidt@msablaw.com) or Brian T. Winchester (btw@msablaw.com)
On April 9, 2019, the defense attorneys at McNeal Schick secured the dismissal with prejudice (PDF link) of Section 1983 claims against individual defendants and secured the dismissal without prejudice of supplemental state law claims in a civil conspiracy, defamation and assault claim in the U.S. District Court, Northern District of Ohio. For further information, please contact Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
On March 27, 2019, the premises liability attorneys from McNeal Schick secured a summary judgment ruling (PDF link) in favor of their client, a property owner, who was sued for a sexual assault that occurred at the premises. After forcing the dismissal of some of the claims, the Court then granted summary judgment on the balance of the claims against our client based on a lack of foreseeability. For further information, please feel free to contact Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
On March 5, 2019 McNeal Schick Partner Brian Winchester argued before the Ohio Supreme Court. The case involved the significant legal issue of whether or not Ohio’s Real Property Statute of Repose applies to breach of contract claims. McNeal Schick was retained to assume the defense of the architect following an adverse Court of Appeals decision and successfully obtained Supreme Court review of the issue and garnered the support of multiple amici which filed briefs in support of our clients’ position. The matter was taken under advisement by the Court and we will await the decision of the Ohio Supreme Court and update as necessary. Should you have any questions, please feel free to contact Brian T. Winchester (btw@msablaw.com).
On February 21, 2019 the Construction and Professional Liability Lawyers of McNeal Schick received a favorable ruling from Ohio’s 10th District Court of Appeals (pdf link) affirming Summary Judgement in favor of the firm’s client, an architect, who was sued for an alleged defective condition reportedly causing plaintiff to slip and fall. In addition to numerous discovery issues in the litigation, the Trial Court decision and later the Court of Appeals decision found that the firm’s client met its standard of care and the claims were barred by Ohio’s Statute of Repose. If you would like further information contact Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
On February 6, 2019, the insurance coverage lawyers of McNeal Schick secured a summary judgment ruling (PDF link) in the Lorain County Court of Common Pleas in favor of an insurance carrier. The Court held that the insurance carrier had no duty to defend or indemnify the insured for a property damage claim stemming from a motor vehicle collision. The Court found that the insured removed his liability coverage from the applicable policy of insurance prior to the subject incident and cannot receive liability coverage under a policy of insurance for which premiums were not paid. For further information, contact Patrick J. Gump (pgump@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
On January 4, 2019, the civil defense lawyers of McNeal Schick successfully secured the dismissal of a defendant in a motor vehicle accident based upon the expiration of the statute of limitations and prior United States Supreme Court precedent as to the unconstitutionality of Ohio’s tolling of the statute of limitations for motor vehicle claims. The matter was filed in the Lucas County, Ohio Court of Common Pleas. If you would like further information, contact Brian T. Winchester (btw@msablaw.com) or Chad A. Schmitt (cs@msablaw.com).
McNeal Schick is proud to recognize John C. Cubar and Brian T. Winchester for once again being recognized by their peers. Decades of work and dedication do get recognized in the legal field. Both partners were selected for inclusion in the 2019 edition of Ohio Super Lawyers in the area of Construction Litigation. The selection process resulted in only 32 lawyers in the entire State of Ohio being recognized for inclusion in this practice area.
After being retained by a homeowners insurance carrier and intervening for that insurer in the underlying lawsuit against its insured for alleged nondisclosures on sale of a property and ancillary personal injury claims, the insurance coverage lawyers of McNeal Schick secured a declaratory judgment ruling (PDF link) in favor of their insurance carrier client. The Cuyahoga County Court of Common Pleas ruled that the insurer had no duty to defend or indemnify its insured on the underlying claims. The claim involved multiple lawsuits, experts, depositions, insurers, parties, and claims. But after nearly two years of litigation, we were ultimately able to prevail. If you would like further information, please contact Jesse M. Schmidt (jschmidt@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
After assuming the defense of an engineering firm upon refiling of a lawsuit which had been litigated for several years, the professional liability attorneys of McNeal Schick actively and aggressively changed the litigation strategy, successfully securing dismissal of all claims (pdf link) against the engineering firm. The multi-party lawsuit stemmed from the collapse of a 300’ long manure barn wall and involved an alleged $1.7 Million plus in claimed damages. After first securing partial dismissal of some of the claims through a Motion to Dismiss, there were still claims pending requiring the filing of a Motion for Summary Judgment (pdf link) which was ultimately granted by the Licking County, Ohio Court of Common Pleas. If you would like further information, contact Brian T. Winchester (btw@msablaw.com) or Patrick J. Gump (pgump@msablaw.com).
On October 18, 2018, the construction litigation lawyers of McNeal Schick secured a ruling (pdf link) granting partial judgment on the pleadings, finding that on claims sounding in contract, Ohio law does not allow punitive damages. The Court further explained that attorney’s fees are not recoverable on contract claims absent language in the contract allowing the same, which was not present in the contract at issue. In the same ruling, the Court also denied Plaintiff’s Motion for Leave to Amend its Complaint to add a count based on frivolous conduct. For further information, contact Jesse M. Schmidt (jschmidt@msablaw.com).
On July 26, 2018, the personal injury lawyers of McNeal Schick secured a summary judgment ruling (pdf link) in the Lorain County Court of Common Pleas, in favor of a tavern owner client, stemming from an automobile accident involving a patron who left the establishment and allegedly crossed the center line on a nearby road, causing the death of another motorist. The decedent’s estate administrator sued the bar owner and building owner entities for wrongful death, on behalf of the decedent’s family, alleging that both entities committed a violation of Ohio’s Dram Shop law, which prohibits a liquor permit holder from serving a noticeably intoxicated patron whose intoxication proximately causes the death of another. The Plaintiff also alleged that tavern employees spoliated, or deliberately destroyed, video surveillance evidence. Punitive damages were sought on both claims. McNeal Schick attorneys filed for summary judgment on all liability issues. This prompted an agreement to dismiss the building owner client, who legally could not be held responsible. The Court then issued an opinion ruling in favor of the tavern owner client, finding that there was insufficient evidence that the patron was served while noticeably intoxicated and that the video evidence was overwritten prior to notice of the Plaintiff’s claim, without any intent to disrupt the claim. For further information, contact Jesse M. Schmidt (jschmidt@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
On July 12, 2018, the insurance coverage lawyers of McNeal Schick secured a summary judgment ruling in the Trumbull County Court of Common Pleas (pdf link) in favor of a general liability and umbrella carrier finding no duty to defend or indemnify the insured for an alleged significant personal injury claim stemming from an alleged defective product. The injury litigation was filed in Allegheny County, Pennsylvania while we proactively litigated the issues in Trumbull County, Ohio. The coverage issues involved alleged post-loss waiver of coverage and the impact of a products-completed operations exclusion. For further information, contact Jesse M. Schmidt (jschmidt@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
Following an adverse appellate decision, McNeal Schick was retained to assume the defense of the design professional in a multimillion dollar design and construction defect claim. We are pleased to announce that on May 23, 2018 the professional liability and appellate lawyers of McNeal Schick secured the Ohio Supreme Court’s acceptance of jurisdiction (pdf link) to review the important issues raised by the adverse appellate ruling related to the scope of the application of Ohio’s 10 year statute of repose for construction related breach of contract claims. With the support of multiple amicus curiae in support of our client’s position in front of Ohio’s Supreme Court, we hope to obtain favorable industry guidance on this important construction industry issue. If you would like further information, contact Brian T. Winchester (btw@msablaw.com) or Patrick J. Gump (pgump@msablaw.com).
On May 3, 2018, the appellate lawyers of McNeal Schick secured a decision (pdf link) from the Eighth District Court of Appeals in favor of their general contractor client in regards to the enforcement of an arbitration clause in a subcontractor agreement. The subcontractor filed suit against the general contractor under the subcontractor agreement claiming breach of contract and violation of the Ohio Prompt Payment Act. The Trial Court refused to enforce the arbitration clause that was mutually bargained for by two commercial entities. The Eighth District Court of Appeals reversed the Trial Court’s decision and found the arbitration clause valid and enforceable. If you would like more information contact Patrick J. Gump (pgump@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
On April 10th, 2018 the trial lawyers of McNeal Schick secured a Magistrate’s Decision in favor of their client, an auto repair shop following a bench trial. The repair shop performed mechanical work on Plaintiff’s vehicle, which was subsequently lost to an underbody fire. Following the loss, Plaintiff filed suit against the shop claiming that the fire which resulted in the loss of her vehicle was a result of the repair shop’s work. McNeal Schick Attorneys argued that the available facts did not suggest that the client was responsible for Plaintiff’s loss and that Plaintiff could not establish actual causation on the part of the shop. If you would like more information contact Chad A. Schmitt (cs@msablaw.com).
On March 28, 2018, the insurance coverage lawyers of McNeal Schick secured a summary judgment ruling (pdf link) in favor of their insurance carrier client. The insured filed suit claiming that there was coverage for water infiltration and property damage in spite of the fact that the damage was caused by faulty workmanship. The Cuyahoga County Court of Common Pleas interpreted the exclusion for coverage and the ensuing loss provisions and found that coverage was not afforded for this loss granting summary judgment in favor of the firm’s client. If you would like more information contact Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
On March 2, 2018, the insurance coverage lawyers of McNeal Schick secured an agreed dismissal of all claims with prejudice (pdf link) in favor of their client, the owner of a bar / restaurant operating in a leased commercial space, without any settlement payment. After a significant fire loss, the client was sued by the building owner, who alleged the client was responsible for the fire and resulting property damage and demanded payment of over $200,000. With the support of an expert engineer who analyzed the cause of the fire, McNeal Schick attorneys argued the client was not responsible. They also argued that the plaintiff-lessor legally waived its right to pursue the client for the damages. If you would like more information, contact Jesse M. Schmidt (jschmidt@msablaw.com) or Brian T. Winchester (btw@msablaw.com).
On February 24, 2018, the premises liability lawyers of McNeal Schick obtained a jury verdict in the Lorain County Court of Common Pleas. This case involved a trip and fall at a rental property owned by our client. Plaintiff sustained tibia and fibula fractures as a result of the fall and went through an open reduction internal fixation surgery for the fractures resulting in the permanent installation of plates and screws. Medical damages claimed were nearly $50,000 of billed expenses on approximately $17,000 of paid medical expenses. The jury returned a gross verdict of $40,000 consisting of $17,000 in economic loss and $23,000 in non-economic (pain and suffering) damages. After allocating negligence to Plaintiff and several non-parties, the net verdict against our client was $15,200. If you would like further information, contact Brian T. Winchester (btw@msablaw.com).
On January 25, 2018, the insurance coverage lawyers of McNeal Schick obtained an appellate victory (pdf link) in the Eighth District Court of Appeals in favor of their client, an insurance carrier, on the issue of whether a commercial automobile policy of insurance issued to an Ohio limited liability company provides underinsured motorist coverage to a claimants that were injured outside the course and scope of their employment with the named insured limited liability company. The Eighth District Court of Appeals followed the Supreme Court of Ohio’s decision in Westfield v. Galatis, 2003-Ohio-5849, and held that the applicable policy of insurance does not provide coverage to claimants injured outside the course and scope of their employment with the named insured business entity. Further, the Court held that the applicable commercial automobile policy of insurance did not contain specific language to the contrary as required in Westfield v. Galatis. If you would like further information, contact Patrick J. Gump (pgump@msablaw.com) or John C. Cubar (jcc@msablaw.com).
On January 12, 2018, the premises liability lawyers of McNeal Schick secured a summary judgment (pdf link) in the Ottawa County Court of Common Pleas in favor of their client, a local restaurant, on claims that the Plaintiff’s significant physical injuries were caused by the negligence of the restaurant in permitting a dangerous condition to exist on its premises. If you would like further information, contact Patrick J. Gump (pgump@msablaw.com).
On January 9, 2018, the professional liability lawyers of McNeal Schick secured an appellate victory (pdf link) in the Fifth District Court of Appeals in favor of their client, a design professional, on claims that the design professional breached its contract with the State of Ohio in providing professional engineering services in the construction of a structure that was substantially completed more than twenty years ago. The Fifth District Court of Appeals held that Ohio’s Statute of Repose, R.C.2305.131, applies to actions brought against design professionals for injury to person or property caused by a defective or unsafe improvement to real property, whether such action sounds in tort or contract. Moreover, the Court of Appeals held the doctrine of nullum tempus, a “prior rule of law of this state,” shall not prevent application of the Statue of Repose. If you would like further information, contact Brian T. Winchester (btw@msablaw.com) or Patrick J. Gump (pgump@msablaw.com).
McNeal Schick is pleased to announce that John C. Cubar and Brian T. Winchester have again been nominated by their peers and selected for inclusion in the 2018 edition of Ohio Super Lawyers and at SuperLawyers.com. This selection is limited to the top 5% of attorneys in the State of Ohio through the Super Lawyers peer-reviewed and research-validated process. It should also be noted that for the Construction Litigation area of practice, John and Brian are two of only 33 lawyers across the entire State of Ohio selected for that practice area.
On October 23, 2017, the trial lawyers of McNeal Schick obtained a defense jury verdict (pdf link) in the Richland County Court of Common Pleas in favor of their client, an HVAC technician, regarding claims for property damage and punitive damages. Plaintiffs (property owners and subrogated insurance carrier) alleged that the Defendant breached his standard of care in allegedly causing a fire that caused significant damage to a home. Liability and damages were both contested. If you would like more information, contact Brian T. Winchester (btw@msablaw.com) or Patrick J. Gump (pgump@msablaw.com).
On October 18, 2017, the insurance coverage lawyers of McNeal Schick secured a declaratory judgment (pdf link) in the Lorain County Court of Common Pleas in favor of their general liability insurance carrier client that it did not owe a duty to defend or indemnify its insured on a claim for violation of Ohio’s Dram Shop Act in spite of claims within the Complaint that the insured committed additional acts of negligence beyond violating the Dram Shop Act. If you would like more information, contact Brian T. Winchester (btw@msablaw.com) or Marilyn J. Singer (mjs@msablaw.com).
On October 12, 2017, the professional liability lawyers of McNeal Schick secured a summary judgment (pdf link) in the Franklin County Court of Common Pleas in favor of their architect client on multiple claims of professional malpractice stemming from a condominium complex fire reportedly causing nearly $600,000 in property damage. If you would like more information, contact Brian T. Winchester (btw@msablaw.com) or Patrick J. Gump (pgump@msablaw.com).
On July 5, 2017, the premises liability lawyers of McNeal Schick secured a summary judgment (pdf link) in the Cuyahoga County Court of Common Pleas in favor of their client, a church, on claims that the Plaintiff’s significant physical injuries were caused by the negligence of the church in creating or allowing a nuisance to exist on its premises. If you would like further information, contact Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
On June 29, 2017, the professional liability lawyers of McNeal Schick secured a summary judgment (pdf link) in the Franklin County Court of Common Pleas in favor of their architect client on a slip and fall claim alleging faulty design as the cause of the Plaintiff’s fall and subsequent injuries. If you would like further information, contact Brian T. Winchester (btw@msablaw.com) or Jesse M. Schmidt (jschmidt@msablaw.com).
* The results and summaries provided on this website describe results obtained in matters handled by Attorneys of McNeal, Schick, Archibald & Biro Co., L.P.A.. These descriptions are meant only to provide information about the activities and results obtained by our attorneys. They are not intended as a guarantee that the same or similar results can be obtained in every matter undertaken by our attorneys. You should not assume that a similar result can be obtained in a legal matter of interest to you. The outcome of a particular matter can depend on a variety of factors, including but not limited to the specific factual and legal circumstances, the ability of opposing counsel, and, often, unexpected developments beyond the control of any client or attorney.
Copyright © 2023
McNeal Schick Archibald & Biro Co., L.P.A.
All Rights Reserved
McNeal Schick Archibald & Biro Co., L.P.A.
4608 St. Clair Avenue
Cleveland, Ohio 44103
Phone: 216-621-9870
Fax: 216-522-1112
mail@msablaw.com
