The Court of Claims Defense (COCD) Section defends cases filed against the State of Ohio in the Ohio Court of Claims, and briefs and argues appeals of those cases in the 10th District Court of Appeals and the Ohio Supreme Court. COCD cases involve a wide variety of claims, including premises liability, construction, intentional tort, negligence, medical malpractice, property loss or damage, employment discrimination, breach of contract, defamation, personal injury, wrongful death and wrongful imprisonment.
The Construction Litigation Group (CLG) is housed within the COCD Section. It is a one-stop shop for all things related to the State of Ohio’s many construction projects. The CLG attorneys give public owners day-to-day advice, prosecute defective design and construction claims, defend injunctions filed by disappointed bidders, and ensure that clients are aware of the latest legal developments.
Prior to 1975, the State could not be sued for damages unless the legislature specifically authorized the claim. State employees were also immune as long as they were acting within the scope of their employment. However, in 1975, the Ohio General Assembly, pursuant to its authority under Article 1 Section 16 of the Ohio Constitution, enacted Ohio Revised Code (ORC) Chapter 2743 establishing the Court of Claims, in which the State could be sued for money damages and the immunity of state employees could be determined. ORC 2743.02(A)(1) provides that the State waives its immunity from liability, and consents to be sued and have its liability determined in the Court of Claims created in this chapter in accordance with the same rules of law applicable to suits between private parties.
Generally, the Court of Claims is vested with original jurisdiction to hear and determine all civil lawsuits for money damages filed against the State of Ohio. However, the Court of Claims Act does not create any new causes of action against the State, but instead places the State on the same level, in most instances, as a private party. Pursuant to ORC 2743.01(A) and ORC 2743.02(E), the only defendant in the Court of Claims is the State of Ohio, which includes the General Assembly, the Ohio Supreme Court, the Court of Claims, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, colleges, universities, and other instrumentalities of the State of Ohio. In almost every instance, pursuant to Loc.R. 5 of the Court of Claims and ORC 2743.03, a single judge or magistrate will hear a case, but the Chief Justice of the Ohio Supreme Court may assign a panel of three judges to a civil action that presents novel or complex issues of law and fact.
Pursuant to ORC 2743.02(F), the Court of Claims has exclusive jurisdiction to determine whether a state employee is immune from liability under ORC 9.86. Therefore, pursuant to the holding of Johns v. Univ. of Cincinnati, 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19, courts of common pleas do not have jurisdiction to make immunity determinations. Until the Court of Claims determines that a state employee is not entitled to immunity, common pleas courts are without jurisdiction over litigation against that employee. If a plaintiff wants to sue a state employee in his/her individual capacity in common pleas court, the plaintiff must first sue the State in the Court of Claims, and ask for an immunity determination pursuant to ORC 2743.02(F).
If the Court of Claims determines that the state employee was acting within the scope of employment in furtherance of the interests of the State, the State will accept responsibility for the employee’s act, and the litigation may only be pursued against the State in the Court of Claims. See ORC 2743.02(A)(2). However, if the Court of Claims determines that the state employee was not acting within the scope of employment, the employee is personally answerable for his/her acts in common pleas court.
In Theobald v. University of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, the Supreme Court set forth a two-part test for the determination of whether a putative individual defendant is immune under ORC 9.86. The Court of Claims must first determine whether or not the person is a state officer or employee as defined by ORC 109.36. If the Court determines that the person is not a state officer or employee, the analysis is complete, ORC 9.86 does not apply, and the Court of Claims would not reach the second part of the test, i.e., whether that person was acting in furtherance of the interests of the State.
The State’s waiver of immunity is not unlimited. ORC Chapter 2743 provides a number of provisions unique to claims against the State. These common provisions include the following:
- ORC 2743.16(A) provides for a two-year statute of limitations on claims for money damages brought against the State of Ohio in the Court of Claims, but the limitations period may be shorter where the claim itself has a statute of limitation period less than two years;
- ORC 2743.02(D) provides that an award of damages will be reduced by other collateral recovery received by the claimant. Thus, insurance proceeds and other settlements will be set off against any award against the State. ORC 3345.40 provides that for colleges and universities, the collateral recovery not only includes benefits received by the claimant, but also benefits the claimant is “entitled” to receive;
- Loc.R. 6 of the Court of Claims and ORC 2743.11 provide that a party who has filed a claim against the State of Ohio in the Court of Claims is not entitled to a jury trial;
- Pursuant to Drain v. Kosydar, the general rule is that the Court of Claims cannot award punitive damages (Drain, 54 Ohio St. 2d 49, 374 N.E.2d 1253) or attorney fees (Drain, 10th Dist. No. 79AP-78, 1979 Ohio App. LEXIS 10929). See e.g. Saha v. The Ohio State University, Ct. of Cl. No. 2007-02050, Prescreening Entry (Feb. 26, 2007).;
- ORC 2743.03(A)(2) provides that a claimant may file a claim for an injunction or declaratory judgment against the State of Ohio in the Court of Claims only if that claim is coupled with a claim for monetary damages;
- ORC 2743.02(A)(1) provides that actions against state colleges and universities are subject to the limitations set forth in ORC 3345.40, which includes a statutory cap of $250,000 on non-compensatory losses in cases other than wrongful death actions, and a specific prohibition of subrogation claims against state colleges and universities;
- The Court of Claims does not have jurisdiction to hear claims alleging constitutional and civil rights violations. Such claims can only be brought against individuals, and the State is not a person as defined in 42 U.S.C. 1983 (See, e.g. Burkey v. S. Ohio Corr. Facility, 38 Ohio App.3d 170, 528 N.E.2d 607 (10th Dist. 1988)); and
- ORC 2743.15(A) and C.C.R.7(A)(PDF) provide that all settlements require the approval of both the Ohio Attorney General and the Court of Claims.