Beal v. State Farm Insurance , 132 Ohio App. 3d 203 ( 1999 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

OPINION Vicki Beal, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-278185, in which the trial court overruled plaintiff-appellant's motion for prejudgment interest as well as her motion to tax costs. Plaintiff-appellant assigns four errors for this court's review.

For the following reasons, plaintiff-appellant's appeal is affirmed in part, reversed in part and remanded.

On October 8, 1992, plaintiff-appellant was involved in an automobile accident while riding as a passenger in her automobile which, at the time, was being driven by Frank Maresh. Plaintiff-appellant's vehicle was the front car in a three vehicle chain reaction collision. The first automobile in the chain was operated by Lance Dokes, an uninsured motorist. Liability on the part of the uninsured motorist was not in dispute. Plaintiff-appellant's vehicle was damaged by the collision, but was able to be driven from the scene.

On October 6, 1994, plaintiff-appellant brought suit against State Farm Insurance Company, defendant-appellee, (hereinafter "State Farm") in the Cuyahoga County Court of Common Pleas on an uninsured motorist claim arising out of injuries allegedly sustained in the accident of October 8, 1992. Liability was not disputed by State Farm, however, the amount of damages remained in dispute.

Discovery ensued during which interrogatories and requests for admissions were exchanged, depositions were taken and an independent medical examination was conducted. Plaintiff-appellant's initial settlement demand was the policy limit of $100,000.00. State Farm's initial offer was $14,000.00. Prior to the commencement of the jury trial in this matter, plaintiff-appellant's last settlement demand was $85,000.00 and State Farm's last offer was $22,500.00.

On October 1, 1996, the jury returned a verdict in favor of plaintiff-appellant in the amount of $80,000.00. That day State Farm tendered the full amount of the jury's verdict to plaintiff-appellant.

Subsequently, plaintiff-appellant filed post-trial motions for awards of prejudgment interest and to tax costs, both of which were opposed by State Farm. During further discovery, controversy arose regarding plaintiff-appellant's notice of depositions duces tecum of two State Farm employees requesting "all training materials, manuals, memoranda, documents, audiotapes, videotapes, or tangible things of any kind relating to all training or seminars attended by you relating to claim handling and evaluation through your tenure with State Farm * * * *" State Farm refused to produce the requested documents and responded with a motion to quash and for a protective order. As a result, plaintiff-appellant requested that the trial court refrain from ruling upon the motion for prejudgment interest for a period of thirty days.

The trial court refused to allow the additional discovery sought by plaintiff-appellant and overruled plaintiff-appellant's motion for prejudgment interest as well as her motion to tax costs. The trial court also denied plaintiff-appellant's motion for reconsideration.

Plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court.

Plaintiff-appellant's first assignment of error states:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO AWARD THE PLAINTIFF PREJUDGMENT INTEREST PURSUANT TO 1343.03(A) GOVERNING PREJUDGMENT INTEREST IN A CONTRACT CLAIM.

Plaintiff-appellant argues, through her first assignment of error, that the trial court erred by overruling her motion for prejudgment interest. Specifically, plaintiff-appellant maintains that R.C. 1343.03(A) mandates an award of prejudgment interest to a successful plaintiff in a contract claim. It is plaintiff-appellant's position that since her uninsured motorist claim was in fact a contract claim, the trial court committed reversible error in denying her motion for prejudgment interest thereby allowing State Farm to benefit financially from interest earned on the funds it maintained in its possession during the lower court proceedings.

R.C. 1343.03(A), the statute governing prejudgment interest in a contract case, provides:

(A) When money becomes due and payable on any bond, bill, note, or other instrument of writing, upon any book account, upon any settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or any transaction, the creditor is entitled to interest at the rate of ten percent per annum, and no more, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to interest at the rate provided in that contract.

In Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St. 3d 339,695 N.E.2d 1140, the Ohio Supreme Court recently addressed the issue regarding a plaintiffs entitlement to an award of prejudgment interest pursuant to R.C. 1343.03(A). The Supreme Court in reaching the conclusion that an uninsured/underinsured motorist claim is a contract claim for which insureds are entitled to recover prejudgment interest on their uninsured/underinsured motorist coverage pursuant to R.C. 1343.03(A), reasoned:

Grange spent considerable effort attempting to persuade us that uninsured/underinsured motorist insurance ("UMI") claims are based on tortious conduct and therefore that R.C. 1343.03(A) does not allow prejudgment interest. Landis spent considerable effort attempting to persuade us that UMI claims are contract claims and therefore that R.C. 1343.03(A) does allow prejudgment interest. We conclude that Landis's UMI claim is a contract claim, while acknowledging that there would be no UMI claim absent tortious conduct, the accident. Kraly v. Vannewkirk (1994), 69 Ohio St. 3d 627, 635 N.E.2d 323, 327 (legal basis for recovery of UMI benefits is contract); Motorists Mut. Ins. Co. v. Tomanski (1971), 27 Ohio St. 2d 222, 223, 56 O.O.2d 133, 134, 271 N.E.2d 924, 925 (right to recovery of UMI benefits is in contract)

In the declaratory judgment action, the trial court determined that Landis was covered by the UMI provision. According to the declaratory judgment, when Landis applied for UMI benefits, Grange should have paid them to him. In other words, the benefits were due and payable to him based on an instrument of writing, the insurance contract. R.C. 1343.03(A). That the benefits were denied in good faith is irrelevant because lack of a good faith effort to settle is not a predicate to an award of prejudgment interest pursuant to R.C. 1343.03(A), as it is under R.C. 1343.03(C). The proper way to fully compensate Landis is to award prejudgment interest. Royal Elec. Constr. v. Ohio State Univ. (1995), 73 Ohio St. 3d 110, 116-117, 652 N.E.2d 687, 692.

Id. at 340-341.

In the case sub judice, a review of the record from the court below demonstrates that, based upon the Ohio Supreme Court's holding inLandis, the trial court improperly overruled plaintiff-appellant's motion for prejudgment interest. Pursuant to Landis, R.C. 1343.03(A) provides for such an award when dealing with a contractual claim arising out of an uninsured/underinsured policy of motorist insurance. During oral argument, counsel for plaintiff-appellant as well as defendant-appellee conceded through a judicial admission that, in light of the Ohio Supreme Court's ruling in Landis, plaintiff-appellant is clearly entitled to prejudgment interest.

However, State Farm maintains that the date upon which the interest begins to accrue is upon the jury's verdict and not the day of the accident. See Eagle American Ins. Co. v. Frencho (1996),111 Ohio App. 3d 214; Kellogg v. Doe (Feb. 16, 1998), Cuyahoga App. No. 72619, unreported. However, the Supreme Court specifically addressed this issue in Landis stating:

Whether prejudgment interest in this case should be calculated from the date coverage was demanded or denied, from the date of the accident, from the date at which arbitration of damages would have ended if Grange had not denied benefits, or some other time based on when Grange should have paid Landis is for the trial court to determine. Upon reaching that determination, the court should calculate, pursuant to R.C. 1343.03(A), the amount of prejudgment interest due Landis and enter an appropriate order.

Id. at 342.

Clearly, the Supreme Court's decision in Landis, which was released subsequently to both the Tenth District Court of Appeals decision inEagle, supra, as well as this court's decision in Kellogg, supra, clarified the lower courts' holding regarding the determination as to the time the insurance proceeds become due and payable and who should then make that determination.

Accordingly, this case must be remanded back to the trial court for a determination as to the proper amount of prejudgment interest to be awarded. Factors which the trial court may consider in reaching the appropriate accrual date on any particular case include, but are not limited to, whether a declaratory judgment action has been filed or is still pending, whether a determination has been made regarding the application of uninsured/underinsured provisions of a motorist insurance policy, the underlying cause of the accident itself, the nature and extent of the damages involved and/or the availability of the tortfeasor. Another significant reason for the appellate court to refrain from determining the accrual date for prejudgment interest is to discourage unnecessary delay in the trial court which could possibly occur if the parties came to rely upon such a determination by any tribunal other than that of the trial court. The ultimate determination of the accrual date or when prejudgment interest is due and payable is contingent upon a myriad of factors and, therefore, must be resolved on a case-by-case basis.

Plaintiff-appellant's first assignment of error is well taken.

Plaintiff-appellant's second assignment of error states:

II. IF THIS COURT FINDS THAT 1343.03(C) (WHICH GOVERNS TORTIOUS CONDUCT) APPLIES, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING ON THE MOTION FOR PREJUDGMENT INTEREST WITHOUT PROVIDING THE PLAINTIFF AN OPPORTUNITY TO CONDUCT DISCOVERY ON THE LACK OF GOOD FAITH EFFORT TO SETTLE.

Plaintiff-appellant's third assignment of error states:

III. WHEN AN INSURANCE COMPANY MISREPRESENTS THAT IT HAS NO ADDITIONAL AUTHORITY AND CUTS OFF NEGOTIATIONS BEFORE REACHING ITS INTERNAL EVALUATION OF THE CASE, THE INSURANCE COMPANY HAS FAILED TO MAKE A GOOD FAITH EFFORT TO SETTLE THE CASE AS A MATTER OF LAW UNDER 1343.03(C)

Having a common basis in both law and fact, this court shall consider plaintiff-appellant's second and third assignments of error simultaneously.

Plaintiff-appellant argues, through her second and third assignments of error, that should this court choose to apply R.C. 1343.03(C) to the instant case rather than R.C. 1343.03(A), the trial court still erred in failing to award prejudgment interest. It is plaintiff-appellant's position that the trial court's implied refusal to allow additional discovery on the motion for prejudgment interest and State Farm's failure to make a settlement offer commensurate with its own internal evaluation of the value of the case constitute an abuse of discretion and evidence of bad faith negotiations, respectively.

As this court has previously determined in its disposition of plaintiff-appellant's first assignment of error, R.C. 1343.03(A) applies to the underlying matter. In addition, during oral argument, appellate counsel for both parties once again conceded through a judicial admission that the Ohio Supreme Court's holding in Landis is controlling as to the second and third assigned errors. Accordingly, plaintiff-appellant's second and third assignments of error are hereby rendered moot pursuant to App.R. 12(A)(1)(c) as well as this court's determination as to plaintiff-appellant's first assignment of error.

Plaintiff-appellant's fourth and final assignment of error states:

IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO AWARD COSTS UNDER CIV.R. 54(D)

Plaintiff-appellant argues that the trial court erred in denying her motion to tax costs. Specifically, plaintiff-appellant maintains that, as the prevailing party, she was entitled to tax certain expenses as costs pursuant to Civ.R. 54 and C.P.Sup.R. 12(D). Plaintiff-appellant sought the following:

(1) the cost of depositions in preparation for trial;

(2) the cost of expert witness fees in preparation for trial;

(3) the cost of exhibits used during trial;

(4) the cost of the videotape recording utilized at trial; and

(5) the expense of playing the videotape recording during trial.

In Vance v. Roedersheimer (1992), 64 Ohio St. 3d 552, 597 N.E.2d 153, the Ohio Supreme Court determined that the language of Civ.R. 54(D) grants the trial court broad discretion to order the prevailing party to bear all or part of his or her own costs, but does not empower the court to award costs to a non-prevailing party. See Piro v. Orange Village (1996), 112 Ohio App. 3d 454, 457. Costs are generally defined as the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which the statute authorizes to be taxed and included in the judgment. Williamson v. Ameritech Corp. (1998), 81 Ohio St. 3d 342,691 N.E.2d 288. R.C. 2317.27 does not provide a statutory basis for taxing the services of a court reporter as costs under Civ.R. 54(B) nor are expert witness fees to be awarded as costs. See Williamson, supra;Williams v. Colasurd (1995), 71 Ohio St. 3d 642, 644, 646 N.E.2d 830. In addition, in the absence of statutory authorization, deposition costs and other litigation expenses may not be properly taxed as costs. Carr v.Lunney (1995), 104 Ohio App. 3d 139.

In the case sub judice, a review of the expenses sought by plaintiff-appellant demonstrates that since there is no statutory authority for taxing such expenses as costs, the trial court did not err by overruling plaintiff-appellant's motion. See Baughman v. Krebs (Dec. 12, 1998), Cuyahoga App. No. 73832, unreported; Bauer v. Georgeff (Sept. 1, 1998), Franklin App. No. 97APE03-313, unreported. In addition, plaintiff-appellant's appellate counsel conceded during oral argument that, in light of the Ohio Supreme Court's recent holding in Williamson,supra, plaintiff-appellant was withdrawing her request for costs.

For the foregoing reasons, plaintiff-appellant's fourth and final assignment of error is not well taken.

Judgment of the trial court is hereby affirmed in part, reversed in part and remanded for further proceedings regarding the award of prejudgment interest consistent with the Ohio Supreme Court's holding inLandis, supra, and this court's opinion.

This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

Costs to be divided equally between plaintiff-appellant and defendant-appellee.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

MICHAEL J. CORRIGAN, JUDGE.

SPELLACY, P.J., and BLACKMON, J. CONCUR.