REAL ESTATE LAWLETTERS

REAL ESTATE LAW, DEVELOPMENTS AND
TECHNOLOGY FOR EXECUTIVE DECISION MAKERS

J. NORMAN STARK, ATTORNEY-AT-LAW

JURIS DOCTOR, B. ARCHITECTURE, B.F.A

Vol. 2000-6  June, 2000

INSURANCE; INSURER AND INSURED;
LAWS AND DOCTRINES APPLICABLE

The rights of the insured and the duty of insurers frequently present difficult problems of interpretation and application for the parties. One recent case considered many of these basic concepts and provided clarification of the laws and doctrines applicable to insurance. Sammarco v. Anthem Ins. Cos., Inc. (1998), 131 Ohio App.3d 544.

Termination in violation of public policy. “Ohio law also restricts the right of some insurers to terminate the insurance coverage of an individual insured, but such limitations are imposed because of the special relationship between an insured and an insurer and “because of the great disparity between the economic positions of the parties to a contract of insurance*** Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, 275.”

Violation of Good Faith and Fair Dealing, “Ohio does recognize that an implied covenant of good faith and fair dealing applies to some contracts, such as those between an insurer and an insured and to commercial contracts regulated by Ohio’s Uniform Commercial Code…”

“The existence of a duty of good faith and fair dealing between an insurer and an insured is based on the fiduciary duty imposed upon insurers. An insurer breaches the duty when it refuses to pay or settle a claim for an arbitrary or capricious reason. In executing the contract, the insurer’s action must be predicated upon “circumstances that furnish reasonable justification therefor.” In the commercial context, the duty of good faith and fair dealing refers to “an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting ***.” Needham v. Provident Bank (1996), 110 Ohio App.3d 817.

Tortious Interference with Contract. “Tortious interference with a business relationship occurs when a person, without privilege, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, or to perform a contract with another. The elements of this claim require a plaintiff to prove that (1) a contract existed; (2) the alleged wrongdoer had knowledge of the contract; (3) the wrongdoer intentionally procured the contract’s breach ; and (4) the wrongdoer had no legitimate justification for causing the breach.” A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1. See also Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51.

Unjust Enrichment. Unjust enrichment occurs when one party confers some benefit upon another without receiving just compensation for the reasonable value of services rendered.” See Fox and Associates Co., L.P.A. v. Purdon (1989), 44 Ohio St.3d 69, Rice v. Wheeling Dollar Sav. & Trust Co. (1951), 155 Ohio St. 391.

Conclusion. Experienced legal counsel can assist in the just resolution of claims by the proper application of the law to the specific facts. However, because certain statutes of limitations require claims be brought and filed in court within a certain time, or be forever barred, any delay in consulting counsel may be fatal.

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Author:  J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has had experience in business, Construction, Real Property, Litigation and Construction-Legal Project and Crisis Management.

 


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