Blundell v. Lazzerini

2023 Ohio 1275

• Court: Ohio Court of Appeals
• Decided: April 20, 2023
• Docket: 2022 CA 00115
• Status: Published

Opinion

[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