619 N.E.2d 1218
No. V89-78900.Court of Claims of Ohio, Victims of Crime Division.
Decided November 24, 1992.
Michael D. Falleur, for the applicant.
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Lee Fisher, Attorney General, for the State.
OPINION AND ORDER OF THREE-COMMISSIONER PANEL.
This cause came to be heard before this panel of three commissioners on March 18, 1992 at 9:00 a.m. upon the applicant’s October 23, 1991 objection and notice of appeal to the October 18, 1991 decision of the single commissioner.
To date, the applicant, Candace Zenni, and dependents of the decedent, Joseph Zenni, have been granted awards totaling $30,625. The aggregate maximum benefit available pursuant to R.C. 2743.60(I) is $50,000. Thus, there remains a balance of $19,375 that may be disbursed in reparation of additional economic loss incurred as a result of the criminally injurious conduct underlying this claim. The applicant contends that the decedent’s dependents have incurred additional unreimbursed dependents’ economic loss and/or dependents’ replacement services loss.
The single commissioner granted an award of reparations for dependents’ economic loss in the amount of $29,045. However, the applicant appealed, asserting that this award was inadequate because the dependents’ economic loss calculations were based on only the last two years of the decedent’s work history. The applicant’s attorney cited In re Walker (July 19, 1983), Ct. of Cl. No. V81-55111tc, unreported, and In re Caminiti (1984), 17 Ohio Misc.2d 9, 17 OBR 309, 478 N.E.2d 1327, in support of his argument that the decedent’s work history and work ethic would be more accurately reflected in the dependents’ economic loss calculations if those figures were based on the decedent’s last five years rather than the last two years — during which time the decedent had opened a restaurant business that went bankrupt.
In calculating dependents’ economic loss, the Attorney General considered only the last two years of the decedent’s work history. In responding to the single commissioner’s referrals for consideration of the applicant’s contentions regarding dependents’ economic loss, the Attorney General seems to have misinterpreted the basis of the applicant’s argument. The Attorney General stated in his amended finding of fact and recommendation of January 14, 1991 that it is “ludicrous” to calculate dependents’ economic loss based upon the decedent’s change of career to real estate. The Attorney General added that “[t]here is no guarantee that the victim would have earned a living in real estate and, thus, to base calculations upon the fact that he had completed this course is purely speculative.” Furthermore, the Attorney General clung to the rule of thumb that dependents’ economic loss calculations be based only on the last two years of a decedent’s employment.
The applicant, counsel for the applicant, and the Attorney General attended the hearing and presented testimony and oral argument for this panel’s review and
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consideration. The applicant testified that her husband had worked for the Hamilton County Clerk of Courts for eight years before leaving that employment to open a restaurant (the Spinning Fork) in 1986. The applicant added that the Spinning Fork went bankrupt in 1988, so the decedent turned to a real estate course, which was to prepare him for the real estate license examination. Mrs. Zenni further testified that during the time that her husband was completing the real estate course, the family lived off her income and income generated from the sale of real property purchased during the decedent’s eight-year employment at the Hamilton County Clerk of Courts’ Office. According to Mrs. Zenni, the decedent had spoken with the deputy clerk of the Hamilton County Clerk’s Office prior to the criminally injurious conduct and was contemplating whether he should pursue a career in real estate or return to the clerk’s office.
The evidence establishes that the decedent was employed by the Hamilton County Clerk’s Office for eight years before leaving that employment to open a restaurant. Within two years, the restaurant folded and the decedent was enrolled in a real estate course designed to prepare him for the real estate license examination. The decedent had completed this course and was preparing for the license examination when he was struck down by the perpetrator of the criminally injurious conduct. Prior to his death, the victim had spoken to his former employer about returning to work, an option that was clearly available to the decedent.
The critical question before this panel is, what is the decedent’s work history for purposes of dependents’ economic loss computations? “Dependent’s economic loss” is defined in R.C. 2743.51(I) as follows:
“(I) `Dependent’s economic loss’ means loss after a victim’s death of contributions of things of economic value to his dependents, not including services they would have received from the victim if he had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim’s death.”
That the decedent contributed things of economic value is implicit in the fact that he acquired investment real estate during his years with the clerk’s office of sufficient value to generate income during later years when he was unemployed. This contribution is in addition to the income the decedent earned while working at the clerk’s office. Thus, even after the failure of his business, the decedent’s work ethic and employment history continued to provide economic contributions to the household. Furthermore, the foregoing definition contains no language that would limit dependents’ economic loss to only those contributions of things of economic value made within the two years immediately preceding the victim’s death.
These factors, upon calculation, reveal whether the dependents of the decedent will suffer economic loss. Whether that economic loss should be based upon a
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two-year or five-year work history is dependent upon the facts of the case. In this case, it is reasonable to reach back five years to obtain an average income upon which to calculate dependents’ economic loss. In fact, it would be unfair to discount the decedent’s employment history with the clerk of courts because the income he earned there was the basis for his later career change. In addition, the decedent could have returned to that employment, as evidenced by the applicant’s testimony.
From review of the file, we find it is reasonable to use the five-year work history of the decedent rather than the two-year work history as a basis upon which to calculate dependents’ economic loss. We find further that the decedent’s potential income from his real estate license is irrelevant, as any such income would be speculative. In requiring the Attorney General to consider the decedent’s five-year work history, we contemplate that this period represents a more accurate reflection of the decedent’s work history and ethic. Thus, it is the determination of this panel that the court should eschew the Attorney General’s two-year work history “rule of thumb” whenever reasonable to do so. Accordingly, this matter will be referred to the Attorney General and remanded to the single commissioner for recalculation of dependents’ economic loss and dependents’ replacement services loss based upon the decedent’s five-year work history.
IT IS THEREFORE ORDERED THAT:
1. The October 18, 1991 order of the single commissioner is REVERSED insofar as it adopts the Attorney General’s recommendation concerning the computation of dependent’s economic loss and dependents’ replacement services loss but is adhered to in all other respects;
2. Warrant Nos. 4504409, 4458497, 4321947, 4185152, and 4185153 disbursing reparations awards totaling $30,625 are hereby RATIFIED;
3. This claim is REFERRED to the Attorney General for further investigation and a new finding of fact and recommendation and REMANDED to the single commissioner for further determination concerning dependents’ economic loss in accordance with the foregoing opinion;
4. The Attorney General shall file his amended finding of fact and recommendation on or before January 25, 1993;
5. The applicant may respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General; and
6. Costs be assumed by the reparations fund.
So ordered.
KARL H. SCHNEIDER, STEVEN A. LARSON and PHILLIP E. PARISI, Commissioners, concur.
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