Blundell v. Lazzerini

[Cite as Blundell v. Lazzerini, 2023-Ohio-1275.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEPHANIE BLUNDELL, Individually JUDGES:
and as Administratrix of the Estate of Hon. John W. Wise, P.J.
JAIMIE L. HAYHURST, Deceased Hon. Craig R. Baldwin, J.
Hon. Andrew J. King, J.
Defendant-Appellant
Case No. 2022 CA 00115
-vs-
FRANK LAZZERINI, MD, et al.
Defendants-Appellees
-vs-
HEALTHCARE UNDERWRITERS
GROUP, INC.
Plaintiff-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2022 CV 00250
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 20, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PETER N. LAVALETTE COURTNEY J. SUTTON
JEFF M. SMITH PAUL G. PERANTINIDES
ROBISON, CURPHEY & O'CONNELL LLC PERANTINIDES & NOLAN
Four SeaGate, Ninth Floor 80 South Summit Street, Suite 300
Toledo, Ohio 43604 Akron, Ohio 44308
Stark County, Case No. 2022 CA 00115 2
Wise, P. J.
{¶1} Defendant-Appellant, Stephanie Blundell, Administratrix of the Estate of
Jaimie Hayhurst, appeals from the August 26, 2022, Judgment Entry by the Stark County
Court of Common Pleas. Plaintiff-Appellee is Healthcare Underwriters Group, Inc. The
relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 12, 2014, Jaimie Lynn Hayhurst (“Decedent”) died in bed in her
home. Her death certificate listed the cause of death as “acute intoxication by the
combined effects of multiple drugs, including alprazolam, fentanyl, and oxycodone.”
These were prescribed by Frank Lazzerini (“the Insured”), her physician at the time.
{¶3} On December 11, 2015, husband of Decedent timely filed a medical
malpractice and wrongful death action against the Insured and Frank D Lazzerini MD LLC
dba Premier Family Practice.
{¶4} On February 16, 2016, law enforcement raided Premier Family Practice.
{¶5} On September 13, 2016, the Insured filed a Motion for Stay of Proceedings.
{¶6} On September 22, 2016, the trial court denied the Motion for Stay of
Proceedings.
{¶7} On May 22, 2017, Appellant voluntarily dismissed the law suit as the Insured
indicated he would not answer any incriminating questions based on his Fifth Amendment
Right against self-incrimination.
{¶8} On May 7, 2018, the lawsuit was refiled by Appellant.
{¶9} Appellee moved for a stay of proceedings until the resolution of the
Insured’s criminal prosecution. The trial court granted this motion.
Stark County, Case No. 2022 CA 00115 3
{¶10} On June 19, 2019, a jury found the Insured guilty on 187 criminal counts,
including Involuntary Manslaughter of Decedent and Unauthorized Writing of
Prescriptions to Decedent for a Controlled Substance for other than Legitimate Medical
Purposes.
{¶11} On February 18, 2022, at a status hearing Appellee informed Appellant it
would move for the trial court to declare Appellee was not obligated to extend coverage
to the Insured in the matter of Decedent due to a policy exclusion for criminal acts.
{¶12} On February 28, 2022, the trial court consolidated Appellant’s wrongful
death and medical malpractice action against the Insured and his former medical practice.
{¶13} On April 27, 2022, Appellee filed a Motion for Summary Declaratory
Judgment as Appellee was not obligated to extend coverage in the matter of Decedent
due to the policy exclusion for criminal acts.
{¶14} On May 23, 2022, the Insured filed a Brief in Opposition to Appellee’s
Motion for Summary Declaratory Judgment stating the medication prescribed to Decedent
was in his capacity as a physician and was medically necessary.
{¶15} On May 25, 2022, Appellant also filed a Brief in Opposition to Appellee’s
Motion for Summary Judgment.
{¶16} On May 31, 2022, Appellee filed a Reply to Mr. Lazzerini’s Brief in
Opposition to Summary Declaratory Judgment and a Contra Motion for Summary
Judgment.
{¶17} On June 22, 2022, Appellee filed a Reply to Appellant’s Brief in Opposition
to Summary Declaratory Judgment.
Stark County, Case No. 2022 CA 00115 4
{¶18} On August 26, 2022, the trial court granted Appellee’s Motion for Summary
Declaratory Judgment.
ASSIGNMENTS OF ERROR
{¶19} Appellant filed a timely notice of appeal and herein raises the following three
Assignments of Error:
{¶20} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
APPELLEE HEALTHCARE UNDERWRITERS GROUP INC. DBA COVERYS’ MOTION
FOR SUMMARY DECLARATORY JUDGMENT AND DECLARING THAT APPELLEE IS
NOT OBLIGATED TO DEFEND OR INDEMNIFY ITS INSURED WITH RESPECT TO
THE INJURIES, DAMAGES, AND WRONGFUL DEATH OF DECEDENT JAIMIE
HAYHURST, AS THE LANGUAGE OF THE SUBJECT POLICY OF INSURANCE IS
OVERLY BROAD, VAGUE, AND VIOLATIVE OF PUBLIC POLICY.
{¶21} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT FINDING
THAT IT IS AGAINST PUBLIC POLICY TO PERMIT APPELLEE TO DENY COVERAGE
AND INDEMNIFICATION TO ITS INSURED, MR. LAZZERINI.
{¶22} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
APPELLANT-BLUNDELL’S CONTRA-MOTION FOR SUMMARY JUDGMENT AS
DEFENDANT LAZZERINI’S CRIMINAL CONVICTIONS ARE CONCLUSIVE PROOF OF
HIS CIVIL LIABILITY FOR DECEDENT’S INJURIES AND WRONGFUL DEATH.”
Standard of Review
{¶23} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
Stark County, Case No. 2022 CA 00115 5
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56 a trial court may grant
summary judgment if it determines: (1) no genuine issues of material fact remain to be
litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one conclusion and viewing
such evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977).
{¶24} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶25} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion and identifying those portions of the record before the trial court
which demonstrates the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996).
Once the moving party has met the burden, the nonmoving party then has a reciprocal
burden of specificity and cannot rest on the allegations or denials in the pleadings, but
must set forth “specific facts” by the means listed in Civ.R. 56(C) showing that a “triable
issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801
(1988).
I., II.
{¶26} In Appellant’s first and second Assignments of Error, Appellant argues the
trial court erred in granting Appellee’s Motion for Summary Declaratory Judgment as the
Stark County, Case No. 2022 CA 00115 6
language in the policy is overly vague and contrary to public policy and that it is against
public policy to deny coverage for liability resulting from the negligent practice of
medicine. We disagree.
{¶27} “An insurance policy is a contract and the relationship between the insurer
and the insured is purely contractual in nature.” Krothe v. Westfield Ins., 5th Dist. Stark
No. 2019CA00099, 2020-Ohio-172, ¶19, citing Nationwide Mut. Ins. Co. v. Marsh, 15
Ohio St.3d 107, 472 N.E.2d 1061 (1984). As a contract, an insurance policy must be
interpreted in accordance with the rules of construction applicable to all other contracts.
Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657, 665, 597 N.E.2d 1096(1992). “The role of a court in interpreting an insurance policy is to give effect to the intent
of the parties to the agreement.” Collins v. Auto-Owners Ins. Co., 12th Dist. No. CA2016-
08-074, 2017-Ohio-880, 80 N.E.3d 542, ¶12. “If a contract is clear and unambiguous,
then its interpretation is a matter of law and there are no issues of fact to be determined.”
Krothe at ¶19, citing Jackson v. Stocker Dev. Ltd., 5th Dist. Tuscarawas No. 2008 AP 034
0029, 2008-Ohio-5337. Therefore, we look at the plain and ordinary meaning of the
language of the insurance policy. Krothe at ¶19.
{¶28} Appellant has cited no case law holding criminal exclusion clauses are
against public policy and overbroad. Instead, Appellant’s argument points to a case with
no precedential value. In Nationwide Mut. Ins. Co. v. Briggs, 5th Dist. Stark No. 2009 CA
00108, 2009-Ohio-6452, ¶15, appeal dismissed, ordered not precedential, 128 Ohio St.3d
394, 2011-Ohio-1420, 944 N.E.2d 1170, ¶15. Appellant failed to disclose the Supreme
Court of Ohio held, “[t]he court orders that the opinion of the court of appeals may not be
cited as authority except by the parties inter se.”
Stark County, Case No. 2022 CA 00115 7
{¶29} Appellant also cited dicta from the Second District Court of Appeals case,
Allstate Ins. Co. v. Cartwright, No. 15472, 1997 WL 368370. In Cartwright, Cartwright
accidentally shot his friend while mishandling a firearm. The applicable insurance policy
contained a criminal acts exclusion clause. Cartwright entered a plea of guilty to
Mishandling a Firearm. The trial court granted summary judgment for the insurance
company as the criminal acts exclusion clause prevented the insured from recovering.
The Second District found the criminal acts clause applied to an insured who
unintentionally mishandled a firearm. In dicta, the Second District warned of broad
application of criminal acts exclusion clauses in insurance contracts, but found that the
criminal acts exclusion clause prevented the victim from recovering from Cartwright
because a gunshot injury is reasonably foreseeable consequence for mishandling a
firearm.
{¶30} In the case sub judice, the insurance policy provides Appellee excludes
coverage of insured for “[a]ny liability resulting from any violation of any applicable local
(city/county), federal or state law[,]” and for “[a]ny liability resulting from any criminal or
fraudulent act by the INSURED[.]” Here the language is clear. The insurance policy
excludes coverage for any liability resulting from criminal or fraudulent act by the insured.
Therefore, the insurance policy does not cover Appellant’s claim.
{¶31} Even assuming arguendo that the criminal acts exclusion clause covers
liability for injuries reasonably expected from the criminal acts of an insured person,
liability in the current matter would be excluded based upon Insured’s criminal
convictions. “A criminal conviction is conclusive proof and operates as an estoppel on
defendants as to the facts supporting the conviction in a subsequent civil action. * * *
Stark County, Case No. 2022 CA 00115 8
Estoppel extends only to questions ‘directly put in issue and directly determined’ in the
criminal prosecution.” Wloszek v. Weston, Hurd, Fallon, Paisle & Howley, LLP, 8th Dist.
No. 82412, 2004-Ohio-146, ¶40 (internal citations omitted). Ohio courts have determined
that an overdose is reasonably foreseeable from the sale of controlled substances. State
v. Luce, 5th Dist. Ashland No. 17-COA-037, 2018-Ohio-4409, ¶39 (An overdose death
was a reasonably foreseeable consequence of selling a fentanyl analog.); State v.
Patterson, 11th Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶91 (“The possibility of
an overdose is a reasonably foreseeable consequence of the sale of heroin”). See also
State v. Mitchell, 3rd Dist. No. 14-19-14, 2019-Ohio-5168, ¶23; State v. Vogt, 4th Dist.
Washington No. 17CA17, 2018-Ohio-4457, ¶99-100, 105; State v. Veley, 6th Dist. Lucas
No. L-16-1038, 2017-Ohio-9064, ¶25. “Death is even more foreseeable when the drug
supplied is fentanyl.” State v. Williams, 7th Dist. Columbiana No. 19 CO 0010, 2020-Ohio-
4430, ¶53.
{¶32} In the case at bar, the Insured was convicted, among other counts, of
knowingly selling oxycodone and/or fentanyl to Decedent through the authorization of
prescriptions for other than legitimate medical purposes and inconsistent with the usual
course of medical practice and treatment of patients. Therefore, despite the Insured’s
insistence that he prescribed this medication in the practice of medicine, his conviction
on count 163 of the indictment is conclusive proof that it was not for any legitimate medical
purpose and inconsistent with the usual course of medical practice.
{¶33} Appellant then argues that Appellee’s denial of coverage based on merely
negligent medical care is against public policy. However, as discussed previously, the
Insured’s conviction for trafficking in oxycodone and/or fentanyl serves as conclusive
Stark County, Case No. 2022 CA 00115 9
proof this was not done in the course of the practice of medicine, but as a criminal act
serving no legitimate medical purpose.
{¶34} Appellant’s first and second Assignments of Error are overruled.
III.
{¶35} In Appellant’s third Assignment of Error, Appellant states the Insured’s
convictions serve as proof of his civil liability, and therefore Appellant’s Contra-Motion for
Summary Judgment should have been granted.
{¶36} “The denial of a motion for summary judgment generally is considered an
interlocutory order not subject to immediate appeal.” Stevens v. Ackman, 91 Ohio St.3d
182, 2001-Ohio-249, 743 N.E.2d 901. As such, a denial of summary judgment is not
generally a final appealable order. “This is because the denial of the motion does not
determine the outcome of the case. The parties both still have the opportunity to prove
their case at trial and a judgment in either party’s favor is not precluded.” International
Brotherhood of Electrical Workers, Local Union No. 8 v. Vaughn Industries, 6th Dist. No
WD-05-091, 2006-Ohio-475, ¶21.
{¶37} Therefore, to the extent Appellant is appealing the Insured’s civil liability for
the wrongful death of the Decedent, the denial of Appellant’s Contra-Motion for Summary
Judgment is not a final appealable order. Any arguments Appellant is attempting to make
regarding Appellee’s denial of coverage to the Insured is addressed in the first and second
Assignments of Error.
Stark County, Case No. 2022 CA 00115 10
{¶38} Accordingly, Appellant’s third Assignment of Error is overruled.
{¶39} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Baldwin, J., and
King, J., concur.
JWW/br 0419