Lawyers of the Year 2001
December 24, 2001
W. Craig Bashein
Born: Oct. 5, 1960, Cleveland, Ohio
Education: The Ohio State University College of Law, 1986; The Ohio State University, 1983
Ohio bar admission: 1990
Legal experience: President, Bashein & Bashein (1986-present)
Paul W. Flowers
Born: Oct. 2, 1964, Grand Rapids, Michigan
Education: The Ohio State University College of Law, 1990; University of Kentucky, 1987
Ohio bar admission: 1990
Legal Experience: Private Practice (1998-present); Associate, Law Office of Gary B. Garson (1992-1998); Law Clerk to Judge John W. Reece, 9th District Court of Appeals (1990-1992)
Two Cleveland attorneys accomplished the exceedingly rare feat of having all seven justices on the Ohio Supreme Court agree to recognize a new avenue of recovery for personal injury plaintiffs.
W. Craig Bashein and Paul W. Flowers convinced the state’s highest court to recognize a claim for loss of parental consortium brought by the adult emancipated children of a man who sustained permanent, disabling injuries in an automobile accident. The decision in Rolf v. Tri State Motor Transport Company, Lawyers Weekly No. 100-126-01, answered a certified question presented by the U.S. District Court for the Northern District of Ohio where the two lawyers filed the case.
Bashein called the decision a great victory for the families of injured people in Ohio.
According to Flowers, the case sets the stage for a further expansion of tort liability with the next step being the recognition of claims brought by parents who seek compensation for loss of consortium occasioned by injuries sustained by their adult children.
Everyone now is beginning to understand that adult consortium claims will work both ways as the result of Rolf, Flowers said.
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Q. Whats happened in your case since the Supreme Court answered the certified question concerning the viability of loss of parental consortium claims brought by adult emancipated children?
A. Bashein: The case was remanded back to the U.S. District Court and is set for trial in February. The parties are currently attempting to resolve the matter. However, at this point, we have not been able to do so. Given the fact that this is the first case of its kind, both parties are treading slowly because there is not a prior track record for where these cases fall in line in terms of value. Were sort of setting the rules as we go along.
Q. Did you have a feeling when this case came to your door that it had the potential for being a landmark decision?
A. Bashein: The case was specifically filed knowing that eventually we would need the Ohio Supreme Courts recognition of this cause of action or approval for it to be a viable claim. When the settlement was reached in the underlying tort claim on behalf of both David Martins and Bonnie Rolfs father and mother, the Rolf children were specifically excluded from the settlement. We refused to give the [defendants] a release.
Q. What was the state of the law before your case?
A. Bashein: Based upon the Ohio Supreme Courts 1993 decision in Gallimore [v. Childrens Hosp. Med. Ctr.], causes of action for loss of consortium were recognized for children under 18 years old. A majority of the [state appellate] courts had refused to extend the cause of action beyond that age, although there were some trial court decisions recognizing loss of services for adults.
Flowers: There is a pretty even split among the supreme courts of the other states between those recognizing it and those that don’t. There were perhaps a third of the states that hadnt addressed it at all. We liked our position when we took it, but there were cases going both ways particularly in Ohio that were defense-oriented. So it was a real challenge.
Q. What were your basic arguments before the Supreme Court in support of your claim?
A. Bashein: The main argument was that this was a logical extension of Gallimore. Gallimore addressed whether minor children have a loss of consortium claim. The court said that they did. There are dozens of examples you can think of suggesting why [loss of consortium claims for adult children] would be a logical extension. For instance, a parent who suffers a horrible catastrophic injury has a 19-year-old living at home and a 17-year-old living at home. The 17-year-old had a claim. The 19-year-old did not. It did not make sense to draw an arbitrary line at age 18 where ones right to present a claim would be cut off.
In addition, there are other areas of Ohio law which recognize ones right to have a claim beyond 18. For example, the wrongful death statute recognizes that all children of a decedent have a claim regardless of age.
We also indicated to the court that, in this day and age, a child who is in his early 20s may suffer an even greater loss when the parent suffers a catastrophic injury than when they were younger. Today, children live at home longer and they tend to get closer to their parents as they grow older. We felt that the quality and nature of the claim would necessarily improve beyond the arbitrary line of age 18.
Q. What was the toughest argument from the defense that you had to overcome?
A. Flowers: Their position and the position of the courts that had rejected it was that you have to draw the line somewhere and the 18th birthday was the place to do it. We made lot of headway by pointing out the arbitrariness of that and the harsh circumstances that would be created if the court adopted that. That went a long way with the justices.
Q. How receptive to your case did the justices appear to be during oral argument?
A. Bashein: It was obvious to me that, not only did the four justices who you would think from past track records would be receptive to our arguments, but it was also obvious to us that the conservative justices [Chief Justice Thomas J.] Moyer, who dissented in Gallimore, and Justice [Deborah L.] Cook were showing some willingness to accept our arguments. When I walked out, I told Paul that I wouldnt be surprised if we get a 7-0 decision. I indicated to Chief Justice Moyer in oral argument that I recognized his dissent in Gallimore and understood the arguments that he had made in his dissent. However, I tried to convey to the Chief Justice that, once Gallimore became law, it made no sense to draw an arbitrary line at age 18.
Q. What is the significance of the decision?
A. Bashein: Its a great victory for families of injured people in Ohio. Thats number one. Number two, there were some concerns expressed by the defense about this decision opening the floodgates to litigation. I don’t think thats true. These claims are going to be confined to instances where you have a parent who has suffered either very serious or catastrophic injuries.
Q. Does the Ohio Supreme Courts decision in your case set the stage for the recognition of additional causes of action?
A. Flowers: It is my sense that Rolf is going to stand for the opposite conclusion as well. That is, when you’re dealing with a situation where an adult child is injured catastrophically, the adult parents will have a claim. Everyone now is beginning to understand that adult consortium claims will work both ways as the result of Rolf.
Bashein: In fact, in oral argument, it was pretty clear to both Paul and me that the court, by announcing the Rolf decision in our favor, would be tacitly approving loss of consortium claims for the parents of injured adult children. Just as Rolf is a natural extension of Gallimore, we believe that a natural extension of Rolf is to recognize loss of consortium for parents of adult children who are injured.
Q. Do you think that point will be conceded by the defense bar?
A. Flowers: Even the most conservative justices signed on to the Rolf decision. I don’t think insurance companies are going to be willing to spend money to draw a distinction such as that. The chances of them winning would be extremely remote.
Q. Have you filed any other claims on behalf of adult children for loss of parental consortium? A. Bashein: I have already filed several of these types of claims and, in fact, reached a settlement for two adult children in a Geauga County case involving pretty serious injuries sustained by parents in a motorcycle accident.
Q. What are the elements that go into valuing a claim for loss of parental consortium?
A. Bashein: What we don’t have is a track record of how jury verdicts come down on these claims, which is always a starting point. I start with how close was the relationship between the parent and the child. Did the child live at home? Did they spend time together? How often did they meet? What was the quality of their time together? You also have to look at how severe are the injuries of the parent. The nature of that loss dictates the nature of the impact on the child. If our plaintiffs father had not been seriously injured, frankly, it might not have been a case that we would have pursued.
Q. Do you see any potential for claims brought by adult children who were estranged from their parents at the time of the injury?
A. Bashein: Obviously, the fact that they are estranged at the time of this loss is going to impact the value of that case compared to the value of a claim brought by a child who is not estranged from the parent. But I do recognize and I think jurors would recognize that 20-year-olds are 20-year-olds and that, as we get older and mature, we tend to get closer to our parents. So that situation can be covered. But that is what a jury is going to have to look at, both the relationship at the time and the potential for a relationship down the road.
Q. What about a situation where a parent suffers injuries that may require lengthy rehabilitation but don’t result in permanent disability? Would there be a compensable injury in that instance?
A. Bashein: Absolutely. In fact, in the case that we recently resolved, there was some permanent injury to both parents, but the largest portion of the claim involved the mother who had multiple lower-extremity fractures that required her to be off her feet for a 12- to 16-week period. One of the daughters quit work and basically took care of her parents during the rehabilitation phase. Did the mother get back on her feet? Yes. Although she did have some permanent injury, the primary focus in that claim was the impact on the children during the rehabilitation phase.
Q. What are the insurance implications of the Rolf decision?
A. Bashein: The way policies are currently written and the way loss-of-consortium claims have been traditionally handled with spouses, it comes off the same limits on a per-person liability limit. If you’re injured by somebody with a $100,000 per-person limit on a claim, you’re just cutting up the same pie into further pieces. So its not causing any greater exposure to carriers that write traditional auto policies. Where the difference is to a carrier is when you have large policies with large umbrellas and catastrophic injuries. At that point, the insurance carrier obviously is going to be paying out a greater amount of money because they’re now compensating additional parties. Flowers: Insurance companies will also have to be mindful of adult consortium claims when they’re negotiating a settlement and draft their releases accordingly.
-Patrick M. Murphy