OHIO Acts of the 126th General Assembly (2005-2006)
SB 117, Chapter 198
AN ACT
To amend sections 1345.09, 2307.60, 2307.71,
2307.73, and 2317.02 of the Revised Code to specify the nature of
damages that may be recovered in certain actions based on unfair or
deceptive sales practices, to provide that a final judgment,
entered after a trial or upon a plea of guilty in certain criminal
actions generally precludes the offender from denying any fact
essential to sustain that judgment when entered in evidence in a
civil proceeding that is based on the criminal act, to make an
exception to the attorney-client privilege for communications
related to an attorney's aiding or furthering an ongoing or
future commission of bad faith by a client that is an insurance
company, to prohibit the use of enterprise theories of liability
against manufacturers in product liability claims, and to include
public nuisance claims under the definition of product liability
claims.
Be it enacted by the General Assembly of the State of
Ohio:
SECTION 1. That sections 1345.09,
2307.60, 2307.71, 2307.73, and 2317.02 of the Revised Code be
amended to read as follows:
Sec. 1345.09. For a violation of
Chapter 1345. of the Revised Code, a consumer has a cause of action
and is entitled to relief as follows:
(A) Where the violation was
an act prohibited by section 1345.02, 1345.03, or 1345.031 of the
Revised Code, the consumer may, in an individual action, rescind
the transaction or recover the consumer's actual
economic damages plus an amount not exceeding five thousand
dollars in noneconomic damages.
(B) Where the violation was
an act or practice declared to be deceptive or unconscionable by
rule adopted under division (B)(2) of section 1345.05 of the
Revised Code before the consumer transaction on which the action is
based, or an act or practice determined by a court of this state to
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code
and committed after the decision containing the determination has
been made available for public inspection under division (A)(3) of
section 1345.05 of the Revised Code, the consumer may rescind the
transaction or recover, but not in a class action, three times the
amount of the consumer's actual economic damages or two
hundred dollars, whichever is greater, plus an amount not
exceeding five thousand dollars in noneconomic damages or
recover damages or other appropriate relief in a class action under
Civil Rule 23, as amended.
(C)(1) Except as otherwise
provided in division (C)(2) of this section, in any action for
rescission, revocation of the consumer transaction must occur
within a reasonable time after the consumer discovers or should
have discovered the ground for it and before any substantial change
in condition of the subject of the consumer transaction.
(2) If a consumer
transaction between a loan officer, mortgage broker, or nonbank
mortgage lender and a customer is in connection with a residential
mortgage, revocation of the consumer transaction in an action for
rescission is only available to a consumer in an individual action,
and shall occur for no reason other than one or more of the reasons
set forth in the "Truth in Lending Act," 82 Stat. 146
(1968), 15 U.S.C. 1635, not later than the time limit within which
the right of rescission under section 125(f) of the "Truth in
Lending Act" expires.
(D) Any consumer may seek a
declaratory judgment, an injunction, or other appropriate relief
against an act or practice that violates this chapter.
(E) When a consumer
commences an individual action for a declaratory judgment or an
injunction or a class action under this section, the clerk of court
shall immediately mail a copy of the complaint to the attorney
general. Upon timely application, the attorney general may be
permitted to intervene in any private action or appeal pending
under this section. When a judgment under this section becomes
final, the clerk of court shall mail a copy of the judgment
including supporting opinions to the attorney general for inclusion
in the public file maintained under division (A)(3) of section
1345.05 of the Revised Code.
(F) The court may award to
the prevailing party a reasonable attorney's fee limited to the
work reasonably performed, if either of the following apply:
(1) The consumer
complaining of the act or practice that violated this chapter has
brought or maintained an action that is groundless, and the
consumer filed or maintained the action in bad faith;
(2) The supplier has
knowingly committed an act or practice that violates this
chapter.
(G) As used in this
section, "actual economic damages" means damages for
direct, incidental, or consequential pecuniary losses resulting
from a violation of Chapter 1345. of the Revised Code and does not
include damages for noneconomic loss as defined in section 2315.18
of the Revised Code.
(H) Nothing in this
section shall preclude a consumer from also proceeding with a cause
of action under any other theory of law.
Sec. 2307.60. (A)(1) Anyone
injured in person or property by a criminal act has, and may
recover full damages in, a civil action unless specifically
excepted by law, may recover the costs of maintaining the civil
action and attorney's fees if authorized by any provision of
the Rules of Civil Procedure or another section of the Revised Code
or under the common law of this state, and may recover punitive or
exemplary damages if authorized by section 2315.21 or another
section of the Revised Code. No record of a conviction,
unless obtained by confession in open court, shall be used as
evidence in a civil action brought pursuant to division (A) of this
section.
(2) A final judgment of
a trial court that has not been reversed on appeal or otherwise set
aside, nullified, or vacated, entered after a trial or upon a plea
of guilty, but not upon a plea of no contest or the equivalent plea
from another jurisdiction, that adjudges an offender guilty of an
offense of violence punishable by death or imprisonment in excess
of one year, when entered as evidence in any subsequent civil
proceeding based on the criminal act, shall preclude the offender
from denying in the subsequent civil proceeding any fact essential
to sustaining that judgment, unless the offender can demonstrate
that extraordinary circumstances prevented the offender from having
a full and fair opportunity to litigate the issue in the criminal
proceeding or other extraordinary circumstances justify affording
the offender an opportunity to relitigate the issue. The offender
may introduce evidence of the offender's pending appeal of the
final judgment of the trial court, if applicable, and the court may
consider that evidence in determining the liability of the
offender.
(B)(1) As used in division
(B) of this section, "tort action" means a civil action
for damages for injury, death, or loss to person or property other
than a civil action for damages for a breach of contract or another
agreement between persons. "Tort action" includes, but is
not limited to, a product liability claim, as defined in section
2307.71 of the Revised Code, and an asbestos claim, as defined in
section 2307.91 of the Revised Code, an action for wrongful death
under Chapter 2125. of the Revised Code, and an action based on
derivative claims for relief.
(2) Recovery on a claim for
relief in a tort action is barred to any person or the person's
legal representative if the person has been convicted of or has
pleaded guilty to a felony, or to a misdemeanor that is an offense
of violence, arising out of criminal conduct that was a proximate
cause of the injury or loss for which relief is claimed in the
action.
(3) Division (B) of this
section does not apply to civil claims based upon alleged
intentionally tortious conduct, alleged violations of the United
States Constitution, or alleged violations of statutes of the
United States pertaining to civil rights.
Sec. 2307.71. (A) As used in sections
2307.71 to 2307.80 of the Revised Code:
(1) "Claimant"
means either of the following:
(a) A person who asserts a
product liability claim or on whose behalf such a claim is
asserted;
(b) If a product liability
claim is asserted on behalf of the surviving spouse, children,
parents, or other next of kin of a decedent or on behalf of the
estate of a decedent, whether as a claim in a wrongful death action
under Chapter 2125. of the Revised Code or as a survivorship claim,
whichever of the following is appropriate:
(i) The decedent, if the
reference is to the person who allegedly sustained harm or economic
loss for which, or in connection with which, compensatory damages
or punitive or exemplary damages are sought to be recovered;
(ii) The personal
representative of the decedent or the estate of the decedent, if
the reference is to the person who is asserting or has asserted the
product liability claim.
(2) "Economic
loss" means direct, incidental, or consequential pecuniary
loss, including, but not limited to, damage to the product in
question, and nonphysical damage to property other than that
product. Harm is not "economic loss."
(3) "Environment"
means only navigable waters, surface water, ground water,
drinking water supplies, land surface, subsurface strata, and
air.
(4) "Ethical
drug" means a prescription drug that is prescribed or
dispensed by a physician or any other person who is legally
authorized to prescribe or dispense a prescription drug.
(5) "Ethical medical
device" means a medical device that is prescribed, dispensed,
or implanted by a physician or any other person who is legally
authorized to prescribe, dispense, or implant a medical device and
that is regulated under the "Federal Food, Drug, and Cosmetic
Act," 52 Stat. 1040, 21 U.S.C. 301-392, as amended.
(6) "Foreseeable
risk" means a risk of harm that satisfies both of the
following:
(a) It is associated with
an intended or reasonably foreseeable use, modification, or
alteration of a product in question.
(b) It is a risk that the
manufacturer in question should recognize while exercising both of
the following:
(i) The attention,
perception, memory, knowledge, and intelligence that a reasonable
manufacturer should possess;
