Jontony v. Colegrove, 2012 Ohio 5846

Jontony and family sued City of Strongsville and Officer Colegrove for injuries from a collision caused by Colegrove who drove without lights/sirens during duties.
The City admitted negligence and assumed 100% responsibility for the accident; immunity defenses later arose.
The City moved for summary judgment on immunity shortly before trial; immunity defense was not in City’s initial answer.
The trial court denied the City’s leave to amend to assert immunity; the jury later awarded damages totaling about $1.1 million, reduced to $796,891.07 after setoffs/caps.
The trial court denied prejudgment interest to the Jontonys; on appeal the City challenges several rulings including the amendment denial, nunc pro tunc order, and setoff rules.
On remand, the court is to address the nunc pro tunc issue and any remaining procedural questions regarding immunity and damages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by denying leave to amend to assert immunity	Jontony argues prejudice from reliance on City’s assurances and late immunity defense.	City asserts need to assert immunity late in case as defense.	No abuse of discretion; denial affirmed.
Whether the nunc pro tunc order was proper to expand on the court’s rationale	Jontony argues nunc pro tunc cannot be used to add reasoning.	City sought to clarify/expand the record to reflect its rationale.	Nunc pro tunc order sustained; vacate on remand.
Whether immunity could be used to support a directed verdict	Immunity should defeat liability because it was an obvious defense.	Immunity was not raised in pleadings and was waived.	Waived immunity; directed verdict denied.
Whether union pension benefits are a setoff under RC 2744.05(B) and how loss of services fits	City should be entitled to setoff for all applicable collateral benefits.	Union pension benefits are not “benefits” under RC 2744.05(B); analysis of loss of services.	Union pension not subject to setoff; Social Security setoff allowed to extent included in award; loss of services not setoff; loss of wages partially set off.
Whether prejudgment interest was properly denied on cross-appeal	Jontonys seek prejudgment interest.	City’s settlement posture weighed against prejudgment interest.	Not an abuse of discretion; cross-appeal overruled.

Hoover v. Sumlin, 12 Ohio St.3d 1 (1984) (abuse of discretion on denial of amendment absent bad faith or prejudice)
Turner v. Cent. Local School Dist., 85 Ohio St.3d 95 (1999) (timeliness and rationale for amendment factors)
McGlone v. Spade, 2002-Ohio-2179 (3d Dist.) (immunity amendment when defense obvious and no prejudice)
Spence v. Liberty Twp. Trustees, 109 Ohio App.3d 357 (4th Dist.1996) (affirmative defense must be pleaded; Civ.R. 15(A) left to discretion)
Reed v. Multi-Cty. Juvenile Sys., 2010-Ohio-6602 (7th Dist.) (joint answer; reliance on one defendant’s position permissible)