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Subashi & Wildermuth now boasts four AV Rated attorneys to its credit, an achievement not many small firms can claim.

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The “AV^®Preeminent™ Peer Review Rating,” as Martindale-Hubbell describes it ”demonstrates that a lawyer has earned the highest rating available for their legal ability and professional ethics.”  It means that Brian “has been rated by Judges and by fellow attorneys as having the highest level of professional excellence for legal ability and ethical standards.

Despite the fact that 6 of the 7 attorneys at Subashi & Wildermuth are under 45 years old, the firm now has 3 who are AV rated, including Brian.

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04-12-13 – Decision Sustaining in part & overruling in part Plaintiff’s MSJ

The defendant had a policy of insurance that covered her for losses to her personal residence.  However, the court found that there was no coverage for the fire, because the defendant did not reside at the property at the time of the fire.

Based on Second District precedent, the court interpreted the terms “reside,” “residence,” and “resident” contained within the insurance policy very broadly.  Nevertheless, even under the broadest possible interpretation of those terms, the purported insured could not be said to have lived at the property in this case.  Among other facts relevant to this inquiry, the defendant had stayed only four nights at the property in the months leading up to the fire; she listed a different address on all public records, including her driver license and school records;  and the property had been completely without utilities for at least a month before the fire.

The court concluded summary judgment was not warranted as to the insurer’s remaining arguments but the residential question resolved the dispute.

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The police officers received a dispatch informing them that a naked man (Martin) had been yelling outside and had entered a nearby apartment.  The first officer to arrive on the scene reported that Martin ran toward his patrol car, asked him for help and then put his hands behind his back and asked to be taken to jail.  When the officer attempted to put handcuffs on Martin, he ran away.

The officer then tackled Martin and laid on him just as a second officer arrived. The second officer dropped his knee into Martin’s side to keep him on the ground, fell on top of both Martin and the other officer, and delivered one or two “compliance body shots” to Martin’s side with his knee.  There is evidence that Martin continued to struggle with the officers.

When Martin bit the first officer’s knuckle, the officer hit him in the face, wrapped his legs around Martin’s body, and gripped Martin’s chin with his right arm.  The second officer hit Martin at least five times in his face, back and ribs.  When the third officer arrived to assist, Martin was face down on the ground.  Soon after that, the officers heard Martin make a gurgling sound. When they turned him over, he wasn’t breathing. He was pronounced dead at a nearby hospital.

The medical examiner ruled that Martin died from an acute psychotic episode unrelated to the officers’ use of force.  More specifically, he concluded that Martin’s death was due to a combination of LSD intoxication and cardiac arrest.  But two forensic pathologists said Martin more likely died from asphyxiation.

The Sixth Circuit noted that the police department had a specific policy addressing the possibility for positional asphyxiation, especially in persons exhibiting signs of mental illness.  While the Court agreed that the officers were permitted to use some amount of force in the circumstances, it, nevertheless, concluded that even the first officer’s act of tackling Martin was unreasonable.  The Court said:

“The bottom line is that a jury could find that the officers’ conduct was unreasonable. The officers used their weight to compress Martin, struck his head and body multiple times, restrained his neck or chin, and placed him in a torso lock. These tactics were not justified by Martin’s possible crime, the threat he posed to anyone’s safety, or his resistance. The officers’ failure to adhere to a departmental policy that explained the grave dangers of positional asphyxia verifies the unreasonableness of their actions.”

The defendant officers must now decide whether to file a request for an en banc hearing of this matter in which all the judges of the Sixth Circuit will evaluate the case, to file an appeal to the United States Supreme Court, or something else.

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Congratulations, Erin!

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On March 29, 2013, Nick Subashi successfully defended the case in a bench trial before Judge Barbara Gorman of the Montgomery County Court of Common Pleas.  The case stemmed from a $700 dent to the door of a Lexus owned by a local attorney’s wife.  Dr. X was getting a package out of his back seat when the plaintiff pulled out of the parking spot next to him and angled her vehicle into the doctor’s car door.  The plaintiff admitted that she did not evaluate her surroundings before pulling out.  In fact, she did not know she had even hit the doctor’s car until he politely knocked on her window.  Nevertheless, she claimed the defendant was at fault because his door had slightly crossed the parking spot line.  The judge did not agree.

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