Opinion
No. V89-57198.
Decided November 17, 1989.
Marvin H. Schiff, for the claimant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
Findings of Fact
On March 24, 1988, in Cuyahoga County, Ohio, the decedent, Michael H. Knight, was killed by the offender Eddie Wilson, Jr. The applicant is the decedent's mother, Constance B. Knight.
On March 21, 1989, Constance B. Knight filed a reparations application seeking reimbursement for economic loss incurred as a result of alleged criminally injurious conduct.
A single commissioner issued an order on June 15, 1989 staying the proceedings until March 24, 1990.
On July 5, 1989, the applicant filed a motion for a tentative award.
The Attorney General filed an interim finding of fact and recommendation on August 1, 1989 wherein he recommended awarding the applicant funeral expense in the amount of $1,250. However, the Attorney General found that the applicant has not established that she incurred dependent's economic loss.
On August 25, 1989, the applicant filed a response to the recommendation of the Attorney General requesting a tentative award for dependent's economic loss.
The Attorney General filed a memorandum on September 4, 1989 wherein he noted that the applicant will be receiving an $80,000 settlement in a wrongful death action filed against the offender.
After consideration of the reparations application, the Attorney General's finding of fact and recommendation and memorandum, investigative material in the claim file, the statutory limitations imposed by former R.C. 2743.51(N) and 2743.60(I), and the applicant's response, I find the applicant has met the jurisdictional requirements necessary for an award of reparations.
The Court of Claims has consistently held that R.C. 2743.51(D) requires dependency in fact rather than dependency in theory. The applicant must show that the decedent was contributing things of economic value to the care and support of the alleged dependent(s). Even arguments that a legal obligation to pay child support constitutes "dependency" pursuant to R.C. 2743.51(D) have been rejected because, while such obligations may create a right of action, they do not constitute actual dependency. See In re Dubics (Aug. 6, 1979), Ct. of Claims No. V77-1065jud, unreported; In re Maddox (Aug. 22, 1979), Ct. of Claims No. V77-0844jud, unreported; and In re Anderson (Nov. 14, 1979), Ct. of Claims No. V77-1323jud, unreported.
The applicant has not provided sufficient documentative evidence to prove that her son was contributing things of economic value to the care and support of the applicant and her family. Therefore, the applicant has failed to prove by a preponderance of the evidence that she incurred dependent's economic loss, as a result of the decedent's death.
The applicant seeks reimbursement for psychological services she received at University Hospitals of Cleveland.
The court has recently held that in order for an applicant to be eligible to receive an award of reparations for economic loss he/she incurred as a result of criminally injurious conduct perpetrated on another, he/she must qualify as a "victim" in his/her own right, within the applicable statutory definitions. In re Fife (1989), 59 Ohio Misc.2d 1, 569 N.E.2d 1078.
R.C. 2743.51(L) defines a "victim" as follows:
"`Victim' means a person who suffers personal injury or death as a result of any of the following:
"(1) Criminally injurious conduct;
"(2) The good faith effort of any person to prevent criminally injurious conduct;
"(3) The good faith effort of any person to apprehend a person suspected of engaging in criminally injurious conduct."
The court in In re Clapacs (1989), 58 Ohio Misc.2d 1, 567 N.E.2d 1351, and in Fife, supra, recognized that, as determined on a case-by-case basis, a psychological injury may be considered a "personal injury" within the meaning of R.C. 2743.51(L).
However, the burden is on the applicant to prove, by a preponderance of the evidence, the relationship of an injury to the criminal event. The court in Fife, 59 Ohio Misc.2d at 3, 569 N.E.2d at 1081, further reasoned that "personal injury" requires a "showing of more than mere sorrow, concern, or mental distress. Psychological injury must be of such a debilitating nature so as to impede or prohibit the resumption or enjoyment of day-to-day activities."
Although the applicant is the mother of the deceased victim, there is no evidence that she was anywhere near the location of the crime. In addition, there exists no documentative evidence of any "shock directly attributable to the sensory and contemporaneous observance of the incident." In re Clapacs, 58 Ohio Misc.2d at 3, 567 N.E.2d at 1354. The victim was conveyed to St. Luke Hospital where he was pronounced dead on arrival. The applicant was then notified of her son's condition upon arriving at the hospital.
The court in Fife demanded that a case-by-case analysis be applied to determine the impact a criminal incident may have upon a person other than the individual directly involved in the crime based on the foregoing factors. Therefore, based on the evidence in the claim file and the recent decision in Fife, the applicant's claim for a reparations award on her own behalf for counseling expense must be denied since she does not qualify as a victim of criminally injurious conduct.
As a result of the decedent's death, the applicant incurred funeral expense in the amount of $3,549.93. The maximum award allowable under the statute is $1,250. However, this expense has been or may be reimbursed from funds received after settlement of a civil suit.
Conclusions of Law
The applicant qualifies as a "claimant" as defined by R.C. 2743.51(A)(2).
However, the applicant has failed to prove, by a preponderance of the evidence, that she or her family incurred dependent's "economic loss" as defined by R.C. 2743.51(I), as a result of the decedent's death.
Although the applicant assumed responsibility for the decedent's funeral expense, this expense has been or may be reimbursed by a collateral source.
However, the applicant's claim for "allowable expense" as defined in R.C. 2743.51(F) is denied pursuant to R.C. 2743.52 since the applicant has failed to prove by a preponderance of the evidence she qualifies as a "victim" in her own right, as defined by R.C. 2743.51(L).
Order
1. The claim is denied and judgment is entered for the state of Ohio.
2. The June 15, 1989 order staying the proceedings until March 24, 1990 remains in full force and effect.
3. Notwithstanding this stay of proceedings, the Attorney General shall continue to investigate the claim.
4. This investigation shall include, but not be limited to, the criminal background of the applicant and the dependents, if any.
5. Costs are assumed by the reparations fund.
So ordered.