Ratchford v. Proprietors' InsuranceRatchford v. Proprietors' Insurance
Aрpellant, Thomas Stewart, appeals from a decision and judgment entry of the Franklin County Court of Common Pleas, awarding appellant $27,500 in his claim against appellee, Robert L. Ratchford, Jr. (Harold T. Duryee, successor), Superintendent of Insurance, in his capacity as liquidator of Proprietors’ Insurance Company (“PIC”).
Appellant was serving as a winch operator on the scallop boat “DECO XII” off the coast of Long Island, New York on November 4, 1979. Another crew mеmber of the boat became caught in the winch cable,, and appellant, in going to the other crew member’s assistance, similarly became caught between the winch cable and drum and was pulled around the winch head several times before the rest of the crew could cut off power and free the two trapped crew members. Appellant was evacuated by coast guard cutter and was treated initially at Good Samaritan Hospital on Long Islаnd, New York. Appellant was then transferred to the United States Public Health Service Hospital (“USPHSH”) in Norfolk, Virginia for further treatment. Appellant suffered displaced fractures of the right hand and right ankle, both of which required surgery and repair with screws or pins. Appellant also suffered a nondisplaced fracture of the right shoulder. The DECO XII was owned by Scallop King, Inc., which in turn was insured by PIC, an Ohio-domiciled company.
PIC was declared insolvent in August 1981, pursuant to then-applicable provisiоns of R.C. Chapter 3903. The Superintendent of Insurance assumed the role of liquidator of PIC, with the purpose of disposing of assets and settling claims against the insolvent company. Appellant asserted damages of $850,000, but the liquidator ultimately valuеd appellant’s claim at $30,000. Appellant objected to the liquidator’s valuation and requested a hearing from the Franklin County Court of Common Pleas, sitting as the “liquidation court” under
*195 Appellant has timely aрpealed and brings forth the following assignment of error:
“The Court of Common Pleas, Franklin County, before Judge Beverly Pfeiffer, erred in the proceedings below by excluding physician’s reports by Dr. Leo Koven, a board-certified orthopedic surgeon who examined appellant in 1981 and 1982.
“The court below further erred in that it overlooked completely plaintiff’s claims for maintenance and cure under the maritime law and for prejudgment interest under the maritime law, both of whiсh were set forth in plaintiff’s trial memorandum.
“The court below furthered erred in disregarding plaintiffs uncontradicted testimony concerning lost earnings.
“The court below likewise erred in ignoring uncontradicted evidence of plaintiffs permanent physical impairment resulting from his injuries, and awarding no damages for future pain and suffering or permanent injury as required by maritime law.
“The court below erred by making an award for pain and suffering which was grossly inadequate for the injuries sustained.”
Initially, we must address a motion brought by appellee to dismiss appellant’s appeal. Appellee raises four grounds for dismissal: First, that appellant’s counsel was not properly admitted pro hoc vice to practice in Ohio; second, that appеllant’s brief was not timely filed under the rules of this court; third, that appellant has failed to file a transcript of the trial court proceedings as part of the record; and fourth, that R.C. Chapter 3903 does not provide for a right of appeal from a decision of a liquidation court setting the amount of a claim.
Appellee’s first argument under the motion to dismiss asserts that counsel for appellant, a practitioner licensed to practice law in the state оf New York but not licensed to practice in Ohio, did not properly obtain pro hoc vice admission before the liquidation court, thus vitiating the notice of appeal filed from the court’s decision. The record does reflect some dilatory cоnduct on the part of appellant’s counsel in obtaining pro hoc vice admission in Ohio. The trial court’s decision expresses some corresponding impatience with this situation but, nonetheless, proceeds to address the matter on the merits as though appellant’s counsel were properly admitted:
“[A]s an initial matter, counsel for Stewart was ordered to submit documentation in accordance with Loc.R. 91 within ten (10) days. Ten business days would have been June 14, 1994. As of June 17, 1994 such documentatiоn had not been filed with the Clerk of Courts. While not condoning counsel’s complete lack of *196 compliance with this court’s local rules and direct order, the court will, nonetheless, proceed to a determination on the merits.”
Admission of counsel
pro hac vice
is left to the discretion of the trial court.
Royal Indemn. Co. v. J.C. Penney Co.
(1986),
With respect to the alleged untimeliness of appellant’s brief on appeal, we note that this court granted appellant’s motion to file brief instanter on October 14, 1994, so that the issue is settled. The third issue raised in appellee’s motion to dismiss, the absence of a transcript and other еvidentiary materials from the record upon appeal, is not a ground for dismissal but will be addressed on the merits.
' Appellee finally argues, in support of his motion to dismiss, that the statutory scheme in Ohio does not provide for an appеal from the liquidation court’s determination on a disallowed claim. In 1981,
“Every proceeding to rehabilitate or liquidate an insurer commenced under the laws in effect before the effective date of sections 3903.01 to 3903.59 of the Revised Code shall be continued as it would have been continued had these sections not been enacted.”
PIC-related proceedings have therefore been governed by the 1981 version of R.C. Chapter 3903.
Ratchford v. Proprietors’ Ins. Co.
(1989),
Appellee argues that under the Supreme Court’s decision in
Ratchford,
procedural gaps in the 1981 stаtute are to be filled by looking to the 1983 statute. Appellee then proposes that, because the 1981 version of the statute contains no specific procedure for denial of claims, the applicable provisiоn under the 1983
*197
statute,
We do not believe that the Supreme Court decision in
Ratchford, supra,
stands for the proposition that post-1983 law shall govern the PIC proceedings where the 1981 statute is silent. In
Ratchford,
the Suprеme Court looked to the 1983 amendments as evidence of legislative intent when construing certain sections of the 1981 statute which are not at issue in the case before us. The use of the 1983 statute in interpretation of prior statutes doеs not equate to an application of the 1983 statute as judicially binding in PIC liquidation matters, in direct contradiction to
Furthermore, even if
“(A) When a claim is denied in whole or in part by the liquidator, written notice of the determination shall be given to the claimant or his attorney by first class mail at the address shown in the proof of claim. Within sixty days from the mailing of the notice, the claimant may file objections with the liquidator. If no such filing is made, the claimant may not further object to the determination.
“(B) Whenever objections are filed with the liquidator and the liquidator does not alter this denial of the claim as a result of the objections, the liquidator shall ask the court for a hearing as soon as practicable and give notice of the hearing in accordance with the Civil Rules to the claimant or his attorney аnd to any other persons directly affected, not less than ten nor more than thirty days before the date of the hearing. The matter may be heard by the court or by a court-appointed referee who shall submit findings of fact along with his reсommendation.”
A final order under
Finally, we note that appeals from a liquidation court on denials of claims have been accepted by this court in the past in connection with PIC liquidation proceedings. In the case of
Ratchford v. Proprietors’ Ins. Co.
(Apr. 25, 1985), Franklin App. No. 94AP-911, unreported,
We therefore find that the order issued by the Franklin County Court of Common Pleas, sitting as liquidation court in this matter, was an appealable order under
Appellant argues that the damages found by the liquidation court were inadequate in that they underestimated lost earnings, failed to allow for “maintenance and cure” awardable to seamen under applicable federal maritime law, failed to consider appellant’s permanent physical impairment and future pain and suffering resulting from his injuries, and that the trial court erred in excluding certain medical reports proffered by appellant. Unfortunately, as appellee has argued in connection with the motion to dismiss, appellant has failed to provide the transcript as required by
Judgment affirmed.