DocketNumber: Nos. 75197 and 75233.
Judges: MICHAEL J. CORRIGAN, J.:
Filed Date: 1/13/2000
Status: Non-Precedential
Modified Date: 4/18/2021
Jerome Werner's appeal is not well-taken. Ken McKinnon's is well-taken with respect to the trial court's erroneous failure to award her the expenses incurred in the videotaping and playback of the deposition of Dr. Albainy and the court's erroneous failure to submit her proposed interrogatory to the jury. In all other respects, McKinnon's appeal is not well-taken.
On July 23, 1995, a car driven by McAlbier hydroplaned on a rain-covered roadway and rear-ended a stopped car driven by Bonnie Pascuta. Jerome Werner and Ken McKinnon were both passengers in Pascuta's car. As a result of the collision, Werner sustained injuries to his neck and back. McKinnon suffered an acute cervical strain and an acute lumbar strain.
On December 16, 1996, Ken McKinnon and another passenger in the car, Mark Whitely, filed a negligence action (CV-320742) against McAbier, Pascuta's insurance company (Grange Insurance) and McAbier's insurance company (Allstate Insurance) seeking damages for injuries sustained in the accident. McKinnon and Whitely also brought underinsured motorist claims against Grange and Allstate. Grange Insurance filed a cross claim against Allstate and McAbier for indemnification.
On February 13, 1997, Werner filed a separate action (CV-330494) against McAbier for his injuries. On May 23, 1997, the two cases were consolidated. On July 31, 1997, the plaintiffs voluntarily dismissed their claims against Grange Insurance Company.
On November 24, 1997, the trial court referred the case to arbitration. The arbitrator found in favor of Ken McKinnon in the amount of $6,000, in favor of Mark Whitley in the amount of $2,250, and in favor of Jerome Werner in the amount of $12,500. The arbitrator also found in favor of Allstate on McKinnon's underinsured motorist claim.
On February 26, 1998, McAbier appealed the arbitration decision to the common pleas court and requested a trial de novo. On July 14, 1998, McKinnon, Whitley, and Werner filed a notice of voluntarily dismissal of their claims against Allstate without prejudice. The case went to trial on July 23, 1998. On July 27, 1998, the jury returned a verdict of $2,074 in favor of Werner and $3,429.30 in favor of McKinnon.
Werner and McKinnon both filed motions under Civ.R. 59 for a new trial, or in the alternative, for judgment notwithstanding the verdict. McKinnon also filed a motion for prejudgment interest and a motion to tax additional costs. On August 26, 1998, the trial court denied all of the motions.
On September 10, 1998, Werner filed a timely notice of appeal from the jury verdict and the denial of his motion for a new trial. On September 17, 1998, McKinnon filed a timely notice of appeal from the jury verdict and the denial of her post-judgment motions.1
Jerome Werner's first and second assignments of error along with Ken McKinnon's first and third assignments of error all share a common basis in law and fact and shall be considered simultaneously.
Jerome Werner's first assignment of error states:
I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL.
Jerome Werner's second assignment of error states:
II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A DIRECTED VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
Ken McKinnon's first assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF-APPELLANT KERI McKINNON'S MOTION FOR A DIRECTED VERDICT ON THE MEDICAL BILLS AND PROXIMATE CAUSE.
Ken McKinnon's third assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF-APPELLANT KERI McKINNON'S RULE 59 MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE GROUNDS THAT THE JURY VERDICT AND JUDGMENT THEREON WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
The standard for granting a motion for judgment notwithstanding the verdict or a motion for a new trial pursuant to Civ.R. 50(B) is the same as that for granting a Civ.R. 50(A) motion for a directed verdict. Texler v. D.O. Summers Cleaners Shirt LaundryCo. (1998),
Under Civ.R. 50(A)(4), a motion for a directed verdict should be granted when, after construing the evidence most strongly in favor of the party against whom the motion is directed, the reviewing court finds that reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to the non-moving party. Wagner v. Midwestern Indemnity
(1998),
A motion for a directed verdict raises the legal question of whether the evidence presented was legally sufficient to take the case to the jury. Id., citing Wagner v. Roche Laboratories
(1996),
Jerome Werner argues that his motion for a new trial should have been granted because the jury's award of damages was inadequate. He argues that, because he presented uncontraverted evidence of $4,415.00 in special damages, the jury's award of $2,074.30 was erroneous. However, a review of the record reveals that McAbier agreed that Werner incurred medical bills totaling $1,293.30, but challenged the rest of the medical expenses as being unrelated to the automobile accident. McAbier elicited testimony that, at the time of the accident, Werner was still seeing Dr. Fiorini for treatment of injuries sustained in a 1993 workplace fall and had already scheduled future appointments with Dr. Fiorini. After considering this testimony, we conclude that reasonable minds could reach different conclusions as to whether the Fiorini charges were for treatment of injuries caused by the automobile accident. Accordingly, the trial court properly denied Werner's motions for a new trial, directed verdict or judgment notwithstanding the verdict.
We also reject Werner's argument that, because McAbier failed to produce expert testimony to contradict Dr. Fiorini's testimony, the jury was not permitted to award a damage amount less than that established by Dr. Fiorini's testimony. Once a plaintiff establishes a prima facie case of negligence, the opposing party may counter by either cross-examining the plaintiff's expert, producing contradictory testimony from another expert, or presenting expert testimony which "sets forth an alternative explanation for the circumstances at issue."Rechenbach v. Haftkowycz (1995),
We turn next to McKinnon's argument that the trial court should have directed a verdict in her favor as to the stipulated amount of medical bills she incurred as a result of the accident. We agree with McKinnon that there was no dispute between the parties as to the amount of her medical bills. However, the jury ultimately awarded her the total amount of the stipulated medical bills. Consequently, she has not demonstrated any prejudice resulting from the court's failure to grant a directed verdict in her favor.
Ken McKinnon's second assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FAILED TO GIVE THE SPECIAL INTERROGATORY LISTING PAST PAIN AND SUFFERING AND MEDICAL BILLS.
McKinnon sought to submit the following interrogatory to the jury:
What are the amounts of damages, if any, you find by a preponderance of the evidence were incurred by the plaintiff, Ken C. McKinnon as a proximate result of this collision?
Civ.R. 49(B) provides "the court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument." Interrogatories test the correctness of the jury's verdict by ascertaining the jury's assessment of the evidence presented at trial. Srail v. RJF Int'l Corp. (1998),
The proposed interrogatory called for the jury to separately state the dollar amount of damages awarded for past medical expenses, past pain and suffering, and past loss of pleasure due to McKinnon's inability to fully perform her usual duties. InFantozzi v. Sandusky Cement Prod. Co. (1992),
Ken McKinnon's fourth assignment of error states:
THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Chegan v. AAAA Continental Heating (Nov. 24, 1999), Cuyahoga App. No. 75190, unreported, citing C.E. Morris Co. v.Foley Construction Co. (1978),
McKinnon argues the jury's verdict was against the manifest weight of the evidence because it failed to include damages for pain and suffering. Damage awards for the exact amount of medical bills for injuries involving pain and suffering, without any award for pain and suffering, have been held to be against the manifest weight of the evidence. Vieira v. Addison (Aug. 27, 1999), Lake App. No. 98-L-054, unreported, citing Farkas v. Detar
(1998),
In Neal v. Blair (June 10, 1999), Lawrence App. No. 98CA37, unreported, the court upheld a jury verdict which equaled the exact sum of the plaintiff's medical expenses.
Indeed, the jury's verdict awarded the appellants almost the exact sum of medical and chiropractic expenses, but no more. However, we do not view the award as conclusive evidence that the jury failed to consider pain and suffering and cannot conclude that the jury's award is unsupported by the record. Through presentation of its own expert testimony and cross-examination of the appellants' doctors and chiropractors, the appellee disputed the severity of the appellants' injuries and whether the accident in question proximately caused all of the appellants' medical and psychological problems. Indeed, many of the treatments administered by the various doctors and chiropractors depended upon the appellants' subjective complaints of pain. The jury may have chosen to disbelieve the appellants, as well as their doctors and chiropractors, concerning the extent of their injuries. See Leslie v. Briceley, 1997 Ohio App. LEXIS 6057 (Dec. 31, 1997), Washington App. No. 97CA10, unreported; Evans v. Moore, 1993 Ohio App. LEXIS 5580 (Nov. 15, 1993), Scioto App. No. 2103, unreported; Armbrister v. Thomas, 1991 Ohio App. LEXIS 5781 (Nov. 21, 1991), Scioto App. No. 90CA1958, unreported.
In this case, the jury may well have disbelieved McKinnon's testimony about the extent of her injuries. Although she described the impact of the crash as severe, photographs of McAbier's car show little damage. McAbier testified that, at the time of the collision, he was traveling approximately five miles per hour and that no one in his car was injured. McKinnon also admitted that she continued to work full-time after the crash and missed only a "minimal" amount of work.
A damage award may not be set aside as inadequate and against the manifest weight of the evidence unless a reviewing court determines that the verdict is "so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim." Warwick v. Mills (Apr. 24, 1998), Montgomery App. No. 16609, unreported, citing Bailey v. Allberry (1993),
Ken McKinnon's fifth assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLEE'S POST TRIAL MOTION FOR A PROTECTIVE ORDER THEREBY DENYING APPELLANT AN OPPORTUNITY TO DEPOSE DEFENDANT'S INSURER'S ADJUSTER AND REVIEW THE CLAIMS FILE.
Civ.R. 26(C) authorizes the trial court to issue a protective order where necessary "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." In deciding whether to grant a protective order, the trial court must "balance the competing interests to be served by allowing discovery to proceed against the harm which may result."Alpha Bens. Agency, Inc. v. King Ins. Agency (Sept. 2, 1999), Cuyahoga App. No. 74623, unreported, citing Arnold v. Am. Natl.Red Cross (1994),
Citing Moskovitz v. Mt. Sinai Medical Center (1994),
Ken McKinnon's sixth assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN RULING ON MOTION FOR PREJUDGMENT INTEREST BEFORE THE CLAIMS FILE WAS RECEIVED BY APPELLANT.
On August 4, 1998, McKinnon filed her Motion for Award of Prejudgment Interest and Request for Hearing and Discovery. On that same date, she filed a Notice of Post-Trial Deposition of Allstate Insurance Adjuster Ann Simpson in which she stated that "Ms. Simpson is directed to bring with her the Allstate Insurance Company file in its entirety." However, at no time during the pendency of the motion for prejudgment interest did McKinnon file a formal discovery request for the claims file. This case differs from Shaw v. Toyotomi America, Inc. (Sept. 26, 1996), Marion App. No. 9-96-17, unreported, the case cited by McKinnon in support of this assignment of error. In Shaw, the appellant served a discovery request for production of the claims file along with the motion for prejudgment interest.
A party seeking access to the insurer's claims file must make a request for the file under the discovery provisions of the civil rules. Cotterman v. Cleveland Elec. Illum. Co. (1987),
Because McKinnon did not file a formal discovery request, Allstate was under no obligation to produce its claims file and the trial court did not err in proceeding to rule on the motion for prejudgment interest. McKinnon's sixth assignment of error is not well-taken.
Ken McKinnon's seventh assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT KERI McKINNON'S MOTION FOR AN AWARD OF PREJUDGMENT INTEREST AGAINST DEFENDANT-APPELLEE SCOTT McABIER AND REQUEST FOR HEARING AND DISCOVERY.
R.C.
McKinnon argues the trial court erred in failing to hold an evidentiary hearing on her motion for prejudgment interest. While R.C.
In support of her motion for prejudgment interest, McKinnon argued that Allstate failed to make a good faith effort to settle the case. McKinnon attached an affidavit from her attorney, Kyle Crane, who averred that Allstate Claims Adjuster Ann Simpson offered $2500 to settle the case and that the same amount was offered on the day of trial by McAbier's attorney Nicholas Fillo. Crane averred that "Defendant refused to even offer the total specials which Defendant himself agreed were incurred as a result of his negligence."
However, when seeking prejudgment interest, the movant must demonstrate both that the opposing party failed to make a good faith effort to settle and that the movant did not fail to make a good faith effort to settle the case. R.C.
Ken McKinnon's eighth assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT AWARDING COSTS TO APPELLANT.
Civ.R. 54(D) grants trial courts discretion to order that the prevailing party bear all or part of his or her own costs. Stateex rel. Reyna v. Natalucci-Persichetti (1998),
The assessment of costs is a matter within the discretion of the trial court and, absent an abuse of discretion, the trial court's decision must be upheld. Keaton v. Pike Community Hosp.
(1997),
McKinnon sought to recover the following expenses as costs: the filing fee for the complaint, the expenses of the court reporter (for attending and transcribing the deposition of McAbier; transcribing the deposition of McKinnon; attending, transcribing, videotaping, and duplicating the videotape of Dr. Albainy's deposition; playing back the videotaped deposition of Dr. Albainy at trial) and the expense of preparing a blow-up exhibit.
Under C.P.Sup.R. 13(D)(2), the reasonable expense of recording testimony on videotape and the expense of playing the videotape recording at trial shall be allocated as costs under Civ.R. 54. See Bates v. Ricco (Nov. 18, 1999), Cuyahoga App. No. 74982, unreported. Accordingly, McKinnon was entitled to recover the costs of recording deposition of Dr. Albainy and playing the videotape at trial. Under C.P.Sup.R. 13(A)(6), the cost of copying a videotaped deposition (either in the form of a videotape or a written transcript) shall be borne by the party requesting the copy. Consequently, McKinnon is not entitled to recover the costs of duplicating the videotaped deposition of Dr. Albainy. There is no statutory basis for taxing the services of a court reporter as costs under Civ.R. 54(B). Baughman v. Krebs
(Dec. 10, 1998), Cuyahoga App. No. 73832, unreported. See, also,Williamson v. Ameritech Corp. (1998),
The fee for filing the complaint has been held not to be totally recoverable as additional costs. Bates v. Ricco (Nov. 18, 1999), Cuyahoga App. No. 74982, unreported, citing Szarka v.State Auto. Ins. Cos. (Nov. 14, 1996), Cuyahoga App. No. 70469, unreported.
Pursuant to R.C.2303.20 , the clerk of the common pleas court may charge certain fees associated with the filing of a lawsuit. Where these fees have already been taxed as costs in the court's final order, any attempt to recover those charges over and above the sums charged by the clerk of courts is impermissible.
Id.
In this case, the trial court assessed costs against the defendants in its final journal entry. Pursuant to Bates andSzarka, McKinnon is not entitled to any additional recovery of the filing fee.
Also, McKinnon has presented us with no statutory authority for recovering the expense of preparing a blow-up exhibit as costs. We are unpersuaded by her reliance on State ex rel. Schoener v.Pd. of Cty. Commrs. of Hamilton Cty. (1992),
McKinnon's eighth assignment of error is well-taken only as it pertains to expenses for the costs of videotaping the deposition of Dr. Albainy and playing the videotape at trial. Accordingly, the trial court's denial of the motion to tax additional costs is reversed in part and additional costs are hereby awarded to McKinnon in the amount of $495.00, representing the total of the following expenses incurred in connection with the Albainy deposition: $82.50 for the attendance of the court reporter at the Albainy deposition + $262.50 for the videotape recording of the deposition + $150.00 for the videotape playback of the deposition.
The judgment of the trial court is affirmed in all other respects.
Judgment affirmed in part, reversed in part and remanded for jury determination as to damages only.
It is ordered that appellee and appellants share the costs herein taxed.
The Court finds there were reasonable grounds for these appeals.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANNE L. KILBANE, J., CONCUR. TIMOTHY E. McMONAGLE, P.J., CONCURS IN JUDGMENT ONLY.