State v. Buckeye Truck & Trailer Leasing, Inc.

931 N.E.2d 1152, 187 Ohio App. 3d 309
Ohio Court of Appeals·Decided April 16, 2010·No. Nos. WD-09-052, WD-09-053·Published·Cited by 1 cases

Opinion

Singer, Judge.

{¶ 1} Appellant corporation appeals a judgment of conviction for two counts of failure to notify about missed premiums and termination of coverage, R.C. 3999.32(F) and 3999.99(F), after a no-contest plea in the Wood County Court of Common Pleas. For the reasons that follow, we affirm.

{¶ 2} Appellant, Buckeye Truck and Trailer Leasing, Inc, d.b.a. Buckeye Haulers, is a Bradner, Ohio trucking company owned and operated by William and Joann May. Appellant provided health insurance for its employees, with the employee portion of the insurance cost being withheld by payroll deduction. At some point in the spring of 2008, and forward, appellant failed to make premium [311] payments on its employees’ policy. Appellant continued to ■withhold the employee-cost portion from its employees’ pay. When coverage was subsequently cancelled, appellant failed to timely notify its employees.

{¶ 3} R.C. 3999.32(B) provides:

{¶ 4} “Each person to whom a group policy or contract of sickness and accident insurance or other health care coverage has been delivered or issued for delivery in this state by a health insurer shall make a reasonable effort to notify every certificate holder * * * who is covered under that policy or contract whenever the person fails to make a required premium payment or contribution on behalf of the certificate holder and that failure results in the termination of coverage. The person shall mail or present the notice to the certificate holder or certificate holder’s designee no later than five days after the date on which the person receives the notice from the health insurer * * *.” One who knowingly fails to comply with this provision is guilty of a fourth-degree felony. R.C. 3999.32(F) and 3999.99(F).

{¶ 5} On December 4, 2008, a Wood County Grand Jury handed down indictments naming William May, d.b.a. Buckeye Truck and Trailer Leasing, Inc., and Joann May, d.b.a. Buckeye Truck and Trailer Leasing, Inc. William May was charged with three counts of violating R.C. 3999.32 and Joann May with three counts of violating R.C. 3999.32, two counts of failure to file a tax-withholding return, two counts of failure to remit withholding taxes, and a single count of felony theft.

{¶ 6} William and Joann May initially pleaded not guilty, but following plea negotiations, they agreed to enter a plea of no contest to two counts each of violating R.C. 3999.32 on behalf of the corporation, if they were personally dismissed from the indictment and the remainder of the charges were dismissed.

{¶ 7} On May 26, 2009, the trial court accepted the Mays’ no-contest plea on behalf of the corporation and found the corporation guilty. The court ordered restitution of $3,814.20 to one former employee and $11,730.06 to another and ordered the corporation to pay a $5,000 fine for each of the two counts in the indictments. From this judgment, appellant now brings this appeal. Appellant sets forth the following four assignments of error:

{¶ 8} “1. The conviction of Buckeye Truck and Trader Leasing, Inc., for violating ORC § 3999.32 and ORC § 3999.99 is void.
{¶ 9} “2. The trial court violated the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio [Constitution] by imposing two penalties for the same offense.
[312] {¶ 10} “3. The trial court committed prejudicial error by ordering restitution absent any evidence from which the amount could be ascertained with reasonable certainty.
{¶ 11} “4. The trial court committed prejudicial error by ordering restitution paid to Pamela Friedhoff.”

I. “Person”

{¶ 12} In its first assignment of error, appellant insists that the judgment of conviction against it is void because the language of R.C. 3999.32 requires that one whose acts constitute a violation of the statute must be a “person.” Unlike the criminal provisions of R.C. Title 29, which contain an express definition of “person” as including a corporation, R.C. 2901.01(B)(l)(a)(i), there is no such provision in R.C. Title 39. Consequently, appellant maintains, the indictment against it is faulty and the conviction derived from the indictment is void.

{¶ 13} R.C. 1.59(C) provides:

{¶ 14} “As used in any statute, unless another definition is provided in that statute or a related statute:
{¶ 15} “ * * *
{¶ 16} “ ‘Person’ includes an individual, corporation, business trust, estate, trust, partnership, and association.”

{¶ 17} There is no provision in R.C. Title 39 that provides an alternative definition for the word “person.” As a result, a “person” in R.C. 3999.32 includes a corporation.

{¶ 18} Accordingly, appellant’s first assignment of error is not well taken.

II. Double Jeopardy

(¶ 19} Appellant maintains in its second assignment of error that the imposition of $5,000 fines for each count of the indictment1 constitutes double punishment for a single offense in violation of the double-jeopardy protection found in the Fifth Amendment and Section 10, Article I, Ohio Constitution.

{¶ 20} R.C. 3999.32 requires an employer “to notify every certificate holder” covered under the policy when the employer fails to make a required premium payment and that failure results in the cancellation of coverage. In our view, this [313] language represents the intent of the legislature that each failure to notify an individual insurance “certificate holder” constitutes a separate offense. Such an intent negates any question of a Fifth Amendment violation. State v. Jones (1985), 18 Ohio St.3d 116, 118, 18 OBR 148, 480 N.E.2d 408; State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48. Accordingly, appellant’s second assignment of error is not well taken.

III. Restitution

{¶ 21} In its third assignment of error, appellant asserts that the trial court erred in awarding restitution without evidence of the specific loss suffered by each individual to whom restitution was ordered.

{¶ 22} At the plea hearing, the state reported that two of the employees affected by the termination of insurance had medical expenses during the cancellation period:

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State v. Buckeye Truck & Trailer Leasing, Inc., 931 N.E.2d 1152, 187 Ohio App. 3d 309 (Ohio Ct. App. 2010).

931 N.E.2d 1152 (State v. Buckeye Truck & Trailer Leasing, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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