Persello v. Allstate Ins. Co.
2011 Ohio 3230
Ohio Ct. App.2011Background
- Persello was injured in a November 6, 2007 car accident with an uninsured motorist; his policy with Allstate included UM/UIM coverage of $100,000 per person and $300,000 per accident.
- The case was filed November 4, 2008 against Prest (uninsured) and Allstate; Prest did not defend.
- A jury trial before a magistrate on September 29–30, 2009 resulted in a verdict of $34,400 in favor of Persello; judgment entered October 2, 2009 and paid within two weeks.
- Persello moved for prejudgment interest at the statutory rate from the accident date through judgment; the magistrate denied the motion.
- The trial court later entered judgment adopting the magistrate’s decision; Persello appealed, arguing accrual should begin at the accident date per Landis v. Grange.
- The court vacated portions of the judgment and a stipulation, and remanded for reconsideration of prejudgment interest consistent with Landis and Royal Elec.; it also addressed enforceability of a stipulation waiving objections under Civ.R. 53.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the proper accrual date for prejudgment interest in a UM/UIM claim? | Persello: accrual should begin the date of the accident under Landis. | Allstate: accrual begins on final judgment as creditor, per the trial court’s interpretation. | Remanded; trial court must determine accrual date based on full compensation, not final judgment. |
| Did the stipulation waiving objections bar review of the magistrate's decision? | Persello; the stipulation is unenforceable to bar Civ.R. 53 review. | Allstate; stipulation purports to waive objections and permit direct appeal. | Stipulation paragraphs 2–3 unenforceable; remand for proper Civ.R. 53 review. |
Key Cases Cited
- Landis v. Grange Mutual Ins. Co., 82 Ohio St.3d 339 (1998) (UM/UIM claims are contractual; accrual date determined by court)
- Royal Elec. Constr. v. Ohio State Univ., 73 Ohio St.3d 110 (1995) (prejudgment interest to compensate for period between accrual and judgment)
- Stoner v. Allstate Ins. Co., 116 Ohio St.3d 1217 (2007) (UIM prejudgment interest governed by Landis; not based on bad faith)
- Rose v. Natl. Mut. Ins. Co., 134 Ohio App.3d 229 (1999) (supports accident-date accrual in appropriate contexts)