Szitas v. Hill , 2006 Ohio 687 ( 2006 )

{¶ 41} Respectfully, I dissent.

{¶ 42} This matter involves a three-car accident that occurred in 2000. Appellant was injured when the appellee struck her car in the rear. As a result of this impact, appellant's car was pushed into the vehicle in front of her, driven by Tito Houston. Houston settled his claim with the insurer approximately six months after the accident.

{¶ 43} Appellant first filed suit in this matter in April 2002. On April 9, 2003, she voluntarily dismissed that action because her medical expert was not available for trial. She refiled the case later that same month. The parties agree that the medical bills in this matter were $2,089.19, and the lost wages were approximately $130. At all times up to the day of trial, appellant's demand for settlement was $12,000. At all times up to and including the day of trial, appellee's offer of settlement was $3,215.56. On the trial date, appellant reduced her demand to $7,500; appellee did not increase his offer. The jury returned a verdict in favor of appellant in the amount of $7,000. Appellant filed for prejudgment interest, and the court, after a full hearing on the matter, denied the request.

{¶ 44} I concur with the majority's statement that review in this matter is had upon an abuse-of-discretion standard and that to reverse the decision of the trial court, appellant must demonstrate that the decision to deny prejudgment interest was arbitrary, capricious, unconscionable, and without support in the record.

{¶ 45} An award of prejudgment interest involves the determination of factual issues by the trial court. Black v.Bell (1984), 20 Ohio App.3d 84, 87, 20 OBR 105, 484 N.E.2d 739. Accordingly, this court should not reject the trial court's findings when they are supported in the record by some competent evidence. Id. at 88, 20 OBR 105, 484 N.E.2d 739; cf. Cox v.Fisher Fazio Foods, Inc. (1984), 13 Ohio App.3d 336, 13 OBR 414,469 N.E.2d 1055 (decision supported by sufficient evidence) withHardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222,14 OBR 250, 470 N.E.2d 941 (decision unsupported in the record).

{¶ 46} The majority finds that appellee failed to make a good faith effort to settle based upon several criteria. The first criterion is that appellee failed to cooperate in discovery. The record would support that finding. However, the majority ignores the fact that the trial judge confronted appellee's behavior and promptly sanctioned him. The majority does not address the issue of whether there was any nexus between appellee's dilatory response to discovery and the timing or amount of his settlement offer. While the appellee was, in fact, uncooperative in providing answers to interrogatories and in attending a deposition, the issue of the appellee's liability in the accident was stipulated. No evidence was produced at the hearing that the information sought from appellee was relevant at all to the issue of damages. Appellee's dilatory conduct was appropriately sanctioned by the trial court, and there is no showing whatsoever that his behavior impacted the case in any fashion that has not already been addressed through financial sanctions.¹²

{¶ 47} I would find that the first criterion set out inKalain v. Smith (1986), 25 Ohio St.3d 157, 25 OBR 201,495 N.E.2d 572 — "whether the party has fully cooperated in discovery proceedings" — should be analyzed further to determine whether the failure of full cooperation had any effect whatsoever on settlement and whether the failure to cooperate was otherwise addressed by the trial court in sanctions. In the instant case, I would find that while there was a failure of full cooperation by appellee, it was redressed by the court in financial sanctions and did not impact the offer of settlement in either amount or time.

{¶ 48} The majority then finds that appellee did not rationally evaluate risks and potential liability. In support of this contention, the majority cites the fact that the other "innocent" person in this accident settled with appellee for $400-$500 more than was offered to appellant, even though appellant's medical expenses were greater (in an amount unknown). I reject the position of the majority that one can analyze potential risks and liabilities by proving that someone else in an accident received a higher settlement offer. There is no evidence whatsoever in the record to inform this court about the details of Houston's medical expenses, lost wages, injuries, or the duration and nature of treatment. Further, the difference between the settlement offers is negligible.¹³

{¶ 49} The majority also concludes that appellee should have made a settlement offer to appellant "much earlier than April of 2003." As noted above, this case was not even filed until April of 2003, and service was not obtained thereon until July of that same year. (The previous case was dismissed by appellant when she was unable to obtain the presence of a witness on the day of trial. There is no indication in the record that there were discovery problems in that matter.)

{¶ 50} Finally, the majority argues that appellee's "failure to respond to appellant's substantially reduced settlement demand on the day of trial demonstrates a lack of good faith."¹⁴ However, the majority does not address the fact that apparently there was no new information on the day of trial that might compel appellee's re-evaluation of the case. In Carmo v.Frankel (1984), 17 Ohio Misc.2d 3, 17 OBR 190, 477 N.E.2d 1244, plaintiffs' demand prior to trial was $500,000. They reduced their demand to $180,000 on the day of trial and refused defendant's final offer of $150,000. The jury awarded plaintiffs $175,000. The court ruled that it would be unfair to award the plaintiffs prejudgment interest because they did not make a good faith demand until the day of trial. Simply because appellant reduced an unreasonable demand moments before trial does not require, at peril of prejudgment interest, a concomitant increase in appellee's offer.

{¶ 51} Accordingly, I would find that while appellee was indeed tardy in discovery responses, the tardiness was addressed by the trial court in sanctions, and the record reflects no prejudice to the proceedings that might animate consideration of prejudgment interest. I further reject the proposition, advanced by the majority, that this court should evaluate the reasonableness of an offer of settlement by considering a settlement achieved by another party to the case, the facts of whose injuries are totally unknown. Even if the facts were known, and even if by some legal miracle the claimants and their claims were found to be all but identical, I certainly would not find that a less than $500 difference between the two indicates one of the offers to be so unreasonable as to implicate prejudgment interest. Finally, I would hold that appellant's 11th-hour reduction of her demand (there being no other relevant facts or circumstances) did not trigger a concomitant obligation in the appellee to increase his offer.

{¶ 52} I find there was ample support in the record for the decision of the trial judge and that he did not abuse his discretion in denying prejudgment interest in this matter. Accordingly, I would affirm the decision of the trial court.

¹² It should be noted that appellee's deposition was not requested during the first filing of the case and the request for continuance filed by appellant in the first case cited only the unavailability of her expert witness for trial, not any failure of discovery. The case at bar was filed April 22, 2003. Service upon appellee was completed July 2, 2003, a case management order entered August 19, 2003, a final pretrial held November 11, 2003, and trial commenced March 10, 2004; completion of service to date of trial consumed only eight months. To suggest that appellee's behavior unreasonably delayed the verdict in this case is surely not supported by this record.

¹³ $3,700 versus $3,215.56.

¹⁴ The majority does not address at all appellant's $12,000 demand extant up to the day of trial. If it is significant that the ultimate verdict in this matter was approximately twice the offer, it is likewise significant that the outstanding demand up until the day of trial was almost twice the verdict.