Opinion
Case No. 2019-00275VI
07-25-2019
IN RE: CHAVON SMITH KECIA WEBSTER CHARLES SMITH DWAINE WEBSTER Applicants
DECISION OF THE MAGISTRATE
{¶1} On May 4, 2018, applicants, Kecia Webster and Dwaine Webster, filed compensation applications as the result of murder of Cha'Von Smith. It should be noted that Charles Smith is listed as an applicant since he is the father of Chari Smith, the daughter of the decedent. On October 29, 2018, the Attorney General issued a finding of fact and decision finding Cha'Von Smith was a victim of criminally injurious conduct as defined by R.C. 2743.51(C)(1). Applicants were granted an award of reparations in the amount of $50,000.00, which was distributed as follows: $8,835.00, to the estate of Jay'Vonna Ash; $4,955.00, to the estate of Jay'Den Ash; $3,790.00, to the estate of Jay'Von Ash; $32,220.00, to the estate of Chari Smith and $205.00 to Curtis Jones. The awards to the estates of the minor children represented loss suffered due to dependent's economic loss. $50,000.00 is the maximum award that may be received from the Ohio Victims of Crime Compensation Fund.
{¶2} On November 29, 2018, applicant, Kecia Webster filed a request for reconsideration. Applicant requested the amount of the award granted to each dependent be reconsidered. On January 28, 2019, the Attorney General rendered a Final Decision finding no reason to modify the initial decision.
{¶3} On February 27, 2019, applicant, Kecia Webster filed a notice of appeal from the January 28, 2019 Final Decision of the Attorney General. Applicant disputes the distribution of dependent's economic loss funds based on the age of the children involved. Applicant argued the calculation of dependent's economic loss calculated by the Attorney General should be altered to provide each child with an 'equitable share' of the award rather than providing the lion's share of the award to Chari Smith, the youngest child involved.
{¶4} On May 29, 2019, a hearing was scheduled before this magistrate at 10:00 a.m. Prior to the hearing the Attorney General filed a brief. The Attorney General pointed out that the calculation of dependent's economic loss distribution was made in accordance with the "Life Tables, Vital Statistic of the United States, 2001, Vol. 52, No. 14 Tables 5 and 6 February 18, 2004 (HHS)" and the "A Markov Process Model of Work-Life Expectancies Based on Labor Market Activity in 1997-98." The Attorney General argued that these models have consistently been used to calculate dependent's economic loss for minor children who suffered the loss of their parent. Furthermore, applicant has presented no evidence showing an alternative method of calculation should be used.
{¶5} On May 29, 2019, a hearing was held before this magistrate at 10:00 a.m. Associate Assistant Attorney General, Megan Hanke appeared on behalf of the state of Ohio. After allowing applicant ten minutes after the hearing time, the hearing was commenced. The Attorney General rested the claim file and the hearing was concluded.
{¶6} R.C. 2743.51(E) states:
"(E) 'Economic loss' means economic detriment consisting only of allowable expense, work loss, funeral expense, unemployment benefits loss, replacement services loss, cost of crime scene cleanup, and cost of evidence replacement. If criminally injurious conduct causes death, economic loss includes a dependent's economic loss and a dependent's replacement services loss. Noneconomic detriment is not economic loss; however, economic loss may be caused by pain and suffering or physical impairment."
{¶7} R.C. 2743.51(I) states:
"(I) 'Dependent's economic loss' means loss after a victim's death of contributions of things of economic value to the victim's dependents, not including services they would have received from the victim if the victim had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death. If a minor child of a victim is adopted after the victim's death, the minor child continues after the adoption to incur a dependent's economic loss as a result of the victim's death. If the surviving spouse of a victim remarries, the surviving spouse continues after the remarriage to incur a dependent's economic loss as a result of the victim's death."
{¶8} The court has no equitable authority to apportion an award among dependents of a decedent that is contrary to the provisions of R.C. 2743.51. In re Dyer, Ct. of Cl. Nos. V2004-60261, V2004-60270, V2004-60288, V2004-60296jud (October 5, 2005), 2005-Ohio-6047.
{¶9} From review of the transmitted file and the brief filed by the Attorney General, the magistrate recommends that the Attorney General's Final Decision be affirmed. Pursuant to a ruling by a judge of the Court of Claims in In re Dyer, this court has no equitable authority to modify an award of reparations to minor dependents that is contrary to the provisions of R.C. 2743.51. Furthermore, R.C. 2743.51(I) reveals that the change of circumstances after the death of the decedent does not alter or affect the calculation of dependent's economic loss. In the case at bar, the Attorney General calculated dependent's economic loss for each minor dependent relying on the Markov Model and the Vital Statistics of the United States, the established standard for calculating this loss.
{¶10} Accordingly, I recommend the Attorney General's decision of January 28, 2019 be affirmed.
{¶11} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).
/s/_________
DANIEL R. BORCHERT
Magistrate Filed 7/25/19
Sent to S.C. Reporter 12/10/19