Dailey v. MasonbrinkDailey v. Masonbrink
APPEARANCES:
William P. Lang and Marit Warren for Appellant
Benjamin D. Felton for Appellee
{¶1} Defendant-Appellant, Auglaize County Board of Commissioners (“the County“), appeals the judgment of the Court of Common Pleas of Auglaize County granting Plaintiff-Appellee, David Dailey, a new trial on the issue of pain and suffering damages. On appeal, the County argues that the trial court erred by (1) granting Dailey‘s motion for a new trial on damages; (2) failing to offset the damages award pursuant to
{¶2} On July 23, 2012, Dailey filеd a complaint in the Court of Common Pleas of Auglaize County. (Docket No. 1, p. 1). In the complaint, Dailey alleged that Dave Masonbrink1 was negligent in the operation of a motor vehicle in the course of his employment with the County and that Masonbrink‘s negligence was the proximate cause of damages to Dailey. (Id. at p. 2). The County was also named as a defendant.
{¶3} The matter proceeded to trial on September 25, 2013.2 Dailey was the only witness to testify about damages. Dailey testified that he was riding his motorcycle northbound on State Route 501 just outside of Wapakoneta on May 9, 2011. He stated that he was wearing “steel-toed boоts, blue jeans, a shirt, a long
{¶4} After he was separated from the motorcycle, Dailey explained that “I must‘ve put my hands down to protect my head. I flipрed several times. I remember my face barely brushing the driveway as I was entering into the ditch and I flipped several times in the ditch until I came to a stop.” Id. at p. 42. As a result, Dailey stated that he “had severe road rash to the palms of [his] hands, the backs of [his] hands, forearms, elbows, stomach, back, shoulder, a light abrasion to the side of [his] face, knees, legs, and a sore neck and back.” Id. at p. 50.
{¶5} Dailey testified that he was transported via ambulance to St. Rita‘s Medical Center. Dailey stated that the staff at St. Rita‘s cleaned his abrasions and performed x-rays and MRIs on his head, neck, shoulder, and back. Surprisingly, Dailey did not suffer any broken bones or head trauma. The hospital gave Dailey pain medication and ointment for his road rash and discharged him that day. Dailey was told to follow up with Dr. Olt, which he did. At this appointment, Dailey testified that she checked his wounds and rewrapped them. He never saw Dr. Olt again. Dailey stated that he also saw Dr. Kantner, a chiropractor, for lower
{¶6} Dailey identified several exhibits, which were later admitted into evidence, as photographs of his injuries sometime after the accident.3 In addition to the photographs, Dailey‘s medical records were also later admitted into evidence. The records indicated that he received two separate doses of morphine for pain the day of the accident. Dailey testified that until his injuries healed he was unable to care for himself. He explained that he needed help going to the bathroom; getting in and out of bed; getting in and out of a car; and nearly everything else that he used to be able to do by himself.
{¶7} On cross-examination, Dailey walked over to the jury and showed them his arms and the backs of his hands. Dailey admitted that when he visited Dr. Kantner on June 16, 2011, he reported no pain. He also admitted that he declined to get blood tests done as ordered by Dr. Olt.
{¶8} After both sides rested, the trial court read the jury instructions aloud. In regard to damages, the trial court instructed,
If you find the Defendant‘s negligence proximately caused injuries to Plaintiff, Mr. Dailey, you will assign by a preponderance of the evidence an amount of money that will reasonably compensate him for his actual injuries and damages. In deciding the amount, you
will consider the reasonable costs of necessary medical and hospital expenses incurred as a proximate result of the negligence, the pain and suffering experienced, the nature and extent of the injuries, the effect upon physical health, and the ability or inability to perform usual activities. Any amounts that you will have determined will be awarded to the Plaintiff for any element of damage shall not be considered again or added to any other element of damages. You shall be cautiоus in your consideration of the damages, not to overlap or duplicate the amounts of the awards. They will be separately set out for you like medical damages and pain and suffering, so you will separately determine that if you believe it appropriate.
* * *
Now if you find for the Plaintiff you will decide by the greater weight of the evidence an amount of money that will reasonably compensate the Plaintiff for the actual injury that was caused, proximately and directly caused by the negligence of the Defendant. In deciding this amount you will consider the Plaintiff‘s economic loss and non-economic loss, if any, proximately or directly caused by Plaintiff‘s actual injuries. Economic loss means any of the following types of financial harm; all wages and salaries lost as a result of his injury, all expenditures for medical care or treatment, rehabilitation services or other care, or other things like drugs necessary to treat the Defendant for his injury, all expenses incurred by the Plaintiff or another person on behalf of the Plaintiff to repair or replace his property, any other expenditure incurred as a result of Plaintiff‘s injury such as pain and suffering.
In determining the reasonable value of medical, hospital, or other related care treatment and services, you should consider all the evidence submitted. And I think that has been apparently stipulated as the reasonable costs. Non-economic loss means harm other than the economic loss that results from Plaintiff‘s injury including but not limited to pain and suffering, disfigurement, mental anguish and other intangible loss.
Id. at p. 225-226, 228-229.
If you find that there was [sic] damages in this case you are to distinguish between the amount of damages in the categories. State the following without regard to the percentage of negligence attributed to the Plaintiff.
* * *
Additionally, again in determining damages, should you find that there is negligence and proximate cause and that the Plaintiff was injured, you should state these answers and write in the amount, separately the amount of the compensatory damages, if any, that represent the Plaintiff‘s pain and suffering, suffered some period of time after the accident, you should assign a value to it in dollars. The amount of the compensatory damages that represents the reasonable value of medical expenses that were proximately caused by the accident, the total amount of the compensatory damages sustained by the Plaintiff by simply adding them together, both pain and suffering and medical damages * * *
(Emphasis added.) Trial Tr. p. 233, 235-236.
{¶10} After a two day trial, the jury returned a verdict in favor of Dailey. The jury awarded $3,571.40 in damages. Before the judge read the verdict aloud, a discussion was held at the bench, where the following conversation took place.4
{¶11} The trial court stated that it appeared the jury had reduced Dailey‘s medical expenses dаmages in accordance with his comparative negligence. (Docket No. 92, p. 3). Dailey argued that this was improper since the interrogatories clearly forbade the jury from reducing any damages award
{¶12} After the discussion concluded, the court addressed the jury foreman. The court stated, “There are no damages for pain and suffering. You are free to do that.” Trial Tr. p. 244. The trial court also stated that the jury found Masonbrink to be 51 percent negligent and Dailey 49 percent negligent in causing the damages. The court explained that it seemed as if the damages award of $3,571.40 was exactly 51 percent of the stipulated medical expenses claimed. When asked whether the jury considered the percentage of fault attributable to Dailey when determining a damages award, the jury foreman answered in the affirmative. The court explained that this was against the specific jury instruction as it, not the jury, would reduce the award in accordance to percentage of fault. The court sent the jury back to the jury room to fix the mistake.5
{¶14} On Octobеr 2, 2013, the County filed a motion to reduce the damages award pursuant to
{¶15} On December 11, 2013, the trial court denied the County‘s motion for a reduction of damages. The trial court did not give specific reasons, but cited both FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed. 356 (1990), and Buchman v. Wayne Trace Local School District Bd. of Edn., 763 F.Supp. 1405 (N.D.Ohio 1991).
{¶16} The court also granted Dailey‘s motion for a new trial on December 11, 2013, finding that the jury‘s verdict was against the manifest weight of the еvidence. Specifically, the court found that Dailey complained of road rash to the medical personnel that arrived at the scene of the accident. The records indicated that Dailey was given two separate doses of morphine to reduce his pain level
{¶17} The County filed this timely appeal, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT GRANTED THE PLAINTIFF‘S MOTION FOR A NEW TRIAL ON THE ISSUE OF DAMAGES.
Assignment of Error No. II
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT‘S REQUEST FOR A SETOFF, PURUSANT TO
Assignment of Error No. III
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AFTER A VERDICT WAS REACHED.
Assignment of Error No. I
{¶18} In its first assignment of error, the County argues that thе trial court abused its discretion by granting Dailey‘s motion for a new trial on damages. Specifically, the County argues that there was no legal basis for disturbing the jury‘s award and that a new trial solely on damages was inappropriate because liability was at issue. We disagree.
{¶19} “Where a trial court is authorized to grant a new trial for a reason which requires the exercise of a sound discretion, the order granting a new trial
{¶20} “The generally accepted rule is that a reviewing court should view the evidence favorably to the trial court‘s action rather than to the jury‘s verdict.” Rieman v. Congemi, 8th Dist. Cuyahoga No. 83187, 2004-Ohio-1269, ¶ 6. “The predicate for the rule springs, in part, from the principle that the discretion of the trial judge in granting a new trial may be supported by his having determined from the surrounding circumstances and atmosphere of the trial that the jury‘s verdict resulted in manifest injustice.” Id., citing Jenkins v. Krieger, 67 Ohio St.2d 314 (1981).
{¶21} “There is a split among Ohio courts whether damage awards for medical bills for injuries, without any award for pain and suffering, are against the manifest weight of the evidenсe.” Uhlir v. State Farm Ins. Co., 164 Ohio App.3d 71, 2005-Ohio-5545, ¶ 19 (8th Dist.). This court, along with others, has typically found that such awards are automatically against the manifest weight of the evidence. Krauss v. Daniels, 6th Dist. Wood No. WD-98-076, 1999 WL 435114, *3 (June 30, 1999); Boldt v. Kramer, 1st Dist. Hamilton No. C-980235, 1999 WL
{¶22} In Krauss, the jury did not award the plaintiff any damages for pain and suffering, but awarded $2,500 in medical expenses as a result of a car accident involving plaintiff and defendant. Krauss at *1. In support of its decision to award a new trial, thе trial court explained, “the Plaintiff did provide ample evidence indicating that she was injured to at least a very limited degree and that she suffered some pain and suffering.” Id. at *2. The Sixth District affirmed, finding that “[w]hile the expert testimony submitted in the trial below raised questions regarding the extent of that injury, nothing in the record supports the conclusion that Krauss suffered no pain as a result of that injury.” Id.
{¶23} In Boldt, the jury returned a verdict in favor of the plaintiff and awarded her medical expenses of $4,139.15, but did not award damages for pain
[t]he jury clearly found that [Plaintiff‘s] emergency-room medical expenses were directly and proximately caused by the collision with [Defendant.] * * * [Plaintiff] must have experienced some pain and suffering. We hold * * * where the jury awarded the amount of the emergency-room medical expenses as damages, it was required to award [Plaintiff] an amount for pain and suffering for the time immediately following the accident, including the time spent in the emergency room.
{¶24} In Guckes, a jury awarded plaintiff $4,466 in damages resulting from a car accident. Guckes, 1996 WL 165542 at *1. In affirming the trial court‘s decision to grant a new trial, this court relied, in pаrt, on Vanbuskirk, which found that an award for medical expenses without pain and suffering was against the manifest weight of the evidence. Id. at *2. The Vanbuskirk court stated, ” ‘While the jury could have by virtue of issues of credibility and conflicting testimony eliminated many other bases for damage it is impossible to eliminate the necessity of a finding of some even though minimal amount of pain as a predicate for this medical treatment.’ ” [Emphasis sic.] Id., quoting Vanbuskirk, 1980 WL 351984 at *4. This court, in Guckes, concluded by finding that
once a jury awards a personal injury plaintiff the special damages of medical expenses, some award for pain and suffering should be rendered, even if nominal, as it is оnly reasonable to conclude that if there are legitimate medical expenses there must have been some pain and suffering for a plaintiff to seek medical treatment in the first instance.
{¶25} In the case sub judice, the jury awarded Dailey the full amount of the stipulated medical expenses, but awarded zero dollars in pain and suffering. Once again, it only seems logical that necessary medical treatment is either accompanied or preceded by some sort of pain or suffering. Although there was a question of the extent of Dailey‘s injuries, the fact that Dailey was injured as a proximate result from the accident is not disputed. See Krauss, 1999 WL 435114 at *3. Even a plaintiff, such as Dailey, that suffers minimal pain and suffering as a proximate result of a defendant‘s actions is entitled to some, even if minimal, amount of pain and suffering damages.
{¶26} The County also argues that any error in the jury‘s original verdict was invited by Dailey when he failed to object to the jury instructions. However, the record does not support this argument. After the jury returned its initial verdict, Dailey voiced his objection with the jury award of zero dollars in pain and suffering. Unbeknownst to Dailey, part of the conversation at the bench that was not recorded included his objection. However, Dailey filed a statement, absent any objection by the County, where he explained that he voiced an objection to the award, but the trial court instructed him that it would not consider any motion made at this time and that Dailey would have to raise his objection in a post-trial motion. (Docket No. 92, p. 4). Relying on this statement, Dailey filed his motion
{¶27} Unfortunately, the trial judge also addressed the award for pain and suffering, stating “[t]here are no damagеs for pain and suffering. You are free to do that.” Trial Tr. p. 244. This instruction may have contributed to the jury‘s continued award of zero dollars for pain and suffering, whereas a more accurate instruction might well have corrected that error.
{¶28} Finally, the County argues that because liability was contested, a new trial on the issue of damages was inappropriate. In Ohio, it is well established that a trial court may grant a new trial based solely on the issue of damages. See Mast v. Doctor‘s Hosp. N., 46 Ohio St.2d 539, 541-542 (1976). ”
{¶29} In support of its argument, the County relies on Iames v. Murphy, 106 Ohio App.3d 627 (1st Dist.1995), for the proposition that “[a] new trial on damages alone is usually granted only when liability is not contested.” Id. at 633. In Iames, the First District found that because the general verdict called into doubt the jury‘s damages award and each party‘s comparative negligence, a new trial on damages alone was inappropriate. Id. Importantly, the court suggested that if interrogatories had been used, then any confusion could have been erased. Id.
{¶30} Since the jury awarded Dailey medical expenses damages, but nothing for his pain and suffering in spite of the obvious injuries, the verdict was against the manifest weight of the evidence. Therefore, the trial court‘s decision to grant Dailey‘s motion for a new trial was not an abuse of discretion. Additionally, because damages were the only issue in dispute, a new trial on the sole issue of damages was аppropriate.
{¶31} Accordingly, the County‘s first assignment of error is overruled.
Assignment of Error No. II
{¶32} In its second assignment of error, the County argues that the trial court erred by failing to reduce the damages award pursuant to
{¶33} “An appellate court‘s review of the interpretation and application of a statute is de novo.” Fisher v. Hasenjager, 168 Ohio App.3d 321, 2006-Ohio-4190, ¶ 19 (3d Dist.), reversed on other grounds in 116 Ohio St.3d 53, 2007-Ohio-5589, citing City of Akron v. Frazier, 142 Ohio App.3d 718, 721 (9th Dist.2001), and State v. Sufronko, 105 Ohio App.3d 504, 506 (4th Dist.1995). “In order to
{¶34} “In construing statutes, we must read words and phrases in context and construe them in accordance with rules of grammar and common usage.” Kimber v. Davis, 10th Dist. Franklin No. 12AP–888, 2013-Ohio-1872, ¶ 12, citing State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 11. Further, it is the duty of this court “to give effect to the words used in a statute, nоt to insert words not used.” State v. S.R., 63 Ohio St.3d 590, 595 (1992), citing Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St.3d 50 (1988), paragraph three of the syllabus. If a statute‘s language is clear and unambiguous, the court must apply the statute as written. Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, ¶ 9.
{¶35} ”
If a claimant receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from аny award against a political subdivision recovered by that claimant. No insurer or other person is entitled to bring an action under a subrogation provision in an insurance or other contract against a political subdivision with respect to those benefits.
The amount of the benefits shall be deducted from any award against a political subdivision under division (B)(1) of this section regardless of whether the claimant may be under an obligation to pay back the benefits upon recovery, in whole or in part, for the claim. A claimant whose benefits have been deducted from an award under division (B)(1) of this section is not considered fully compensated and shall not be required to reimburse a subrogated claim for benefits deducted from an award pursuant to division (B)(1) of this section.
{¶36} In addition to
The Preemption Clause
Under
Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.
{¶37} “A law ‘relates to’ an employee welfare benefit plan if it has ‘a connection with or reference to such a plan.’ ” Donlan v. Greater Cleveland Regional Transit Auth., N.D.Ohio No. 1:99 CV 98, 2000 WL 485268, *6 (Mar. 31, 2000), quoting FMC Corp., 498 U.S. at 58, citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890 (1983).
The Savings Clause
{¶38} Under the savings clause,
{¶39} The United States Supreme Court has found that if the state law in question regulates insurance, then it is saved from ERISA unless the deemer clause applies. FMC Corp. at 60. Relevant to this case,
The Deemer Clause
Under the deemer clause,
Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title * * * nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking fоr purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.
{¶40} The United States Supreme Court has “read the deemer clause to exempt self-funded ERISA plans from state laws that ‘regulat[e] insurance’ within the meaning of the savings clause.” Donlan, 2000 WL 485268 at *7, citing FMC Corp., 498 U.S. at 61.
By forbidding States to deem employee benefit plans ‘to be an insurance company or other insurer * * * or to be engaged in the business of insurance,’ the deemer clause relieves plans from state laws ‘purporting to regulate insurаnce.’ As a result, self-funded ERISA plans are exempt from state regulation insofar as that regulation ‘relate[s] to’ the plans * * *. State laws that directly regulate insurance are ‘saved’ but do not reach self-funded employee benefit plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws.
FMC Corp. at 61. Thus, if Dailey‘s benefits plan is self-funded, then ERISA preempts
{¶41} It is undisputed that Dailey was insured through a self-funded ERISA plan. (Docket No. 68, p. 5-7). Therefоre, it cannot be considered an insurance policy or “other source” under
{¶43} Other courts have found that the dispositive issue involving ERISA preemption is whether the plan is self-funded. See Buchman v. Wayne Trace Local School Dist. Bd. оf Edn., 763 F.Supp. 1405, 1409 (N.D.Ohio 1991); Donlan, 2000 WL 485268 at *7. In Buchman, the court found that the source of benefits was a self-funded employee benefit plan, which is ” ‘saved’ from the savings clause because of the operation of the ‘deemer clause.’ ” (Emphasis added.) Id. Therefore, because the deemer clause applied, ERISA preempted
{¶45} Accordingly, the County‘s second assignment of error is overruled.
Assignment of Error No. III
{¶46} In its third assignment of error, the County argues that the trial court erred by questioning the jury‘s award. Specifically, the County argues that the trial court substituted its own judgment for that of the jury. We disagree.
When one or more of the interrogatory answers is inconsistent with the general verdict,
Civ.R. 49(B) provides for three options available to the court. The court may (1) enter judgment in accordance with the answers, (2) return the jury for further consideration of its answers, or (3) order a new trial. The decision to exercise any one of these options is within the sоund discretion of the trial court and will not be disturbed absent an abuse of discretion. Tasin v. SIFCO Industries, Inc., 50 Ohio St.3d 102 (1990), paragraph one of the syllabus.
First Fed. Bank of Ohio v. Angelini, 3d Dist. Crawford No. 03-09-03, 2010-Ohio 2300, ¶ 36.
{¶47} A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Blakemore, 5 Ohio St.3d at 219.
{¶49} In the case sub judice, the answers to the interrogatories were clearly inconsistent with the general verdict. The jury was instructed, in Interrogatory E, to “state the percentage of all the conduct that proximately caused Plaintiff‘s injury attributable to that particular Defendant.” (Docket No. 59, p. 7). The jury found that Masonbrink was 51 percent negligent, while Dailey was 49 percent negligent. In Interrogatory F, the jury was instructed to calculate the total amount of damages it was awarding to Dailey. On the top of the page, it reads, “STATE THE FOLLOWING WITHOUT REGARD TO THE PERCENTAGE OF NEGLIGENCE ATTRIBUTED TO THE PLAINTIFF.” (Emphasis sic.) (Id. at p. 8). Initially, the jury awarded Dаiley a total of $3,571.40 in damages. This amount was exactly 51 percent of $7,002.74, the stipulated amount of reasonable and necessary medical expenses.
{¶50} Before reading the verdict aloud, the trial court indicated that it appeared from the face of the verdict form and interrogatories that the jury had not followed its instructions and had instead calculated damages while taking into account the percentage of negligence attributable to Dailey. Then, the court
{¶51} ” ‘Where a verdict is defective in form, but the jury‘s intent is clear and obvious to the court, pursuant to Civil Rule 48, the court acts within its power in briefly questioning the impaneled jury to confirm this intent and to secure their assent to a correction of such verdict so as to express their true intention as a matter of law.’ ” Wilms v. Lo-Mar Ents., Inc., 7th Dist. Columbiana No. 83-C-39, 1985 WL 10417, *3 (Apr. 11, 1985), quoting Barnes v. Prince, 41 Ohio App.2d 244, 247 (8th Dist.1974). Since a defect existed on the face of the jury verdict, the trial court possessed the discretion to briefly question the jury foreman regarding the verdict. The inquiry was brief and only covered whether or nоt the jury had impermissibly taken into account the percentage of fault when calculating damages. After it became clear that the jury had misunderstood the instructions, the trial court properly instructed the jury to reconvene pursuant to
{¶52} Accordingly, the County‘s third assignment of error is overruled.
{¶53} Having found no error prejudicial to the County in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
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