Russell A. Kelm, Plaintiff-Appellant, v. Rene Conkel, Defendant-Appellee.
No. 16AP-494 (M.C. No. 2015 CVE 015171)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 2, 2017
[Cite as Kelm v. Conkel, 2017-Ohio-8545.]
(REGULAR CALENDAR)
Rendered on November 2, 2017
On brief: Law Offices of Russell A. Kelm, Russell A. Kelm, and Colleen M. Koehler, for appellant. Argued: Russell A. Kelm.
On brief: Hollern & Associates, and Edwin J. Hollern, for appellee. Argued: Edwin J. Hollern.
APPEAL from the Franklin County Municipal Court
BROWN, J.
{¶ 1} Russell A. Kelm, plaintiff-appellant, appeals from the judgment of the Franklin County Municipal Court, in which the court entered a final judgment, pursuant to a jury verdict, in favor of appellant and against Rene Conkel, defendant-appellee.
{¶ 2} On November 16, 2014, appellant and appellee were involved in a motor vehicle accident. Appellee‘s insurer, Allstate Insurance Company (“Allstate“), made payment to appellant for, at least some of, his car repairs. The vehicle was in the repair shop for approximately four months.
{¶ 3} On May 8, 2015, appellant filed an action against appellee for damages to his vehicle. Appellant claimed damages for replacement of a damaged tire and wheel,
{¶ 4} On October 5, 2015, appellant filed a motion for summary judgment as to both liability and damages. Appellee filed a memorandum contra motion for summary judgment, to which was attached the affidavit of James Petrucz, the diminution in value coordinator for Allstate.
{¶ 5} On October 22, 2015, appellant filed a motion in limine to exclude the affidavit testimony of Petrucz, as well as his testimony at trial. On December 1, 2015, the trial court denied appellant‘s motion in limine, granted appellant‘s motion for summary judgment as to liability, and denied appellant‘s motion for summary judgment as to damages. The trial court indicated that the order did not constitute a final appealable order pursuant to
{¶ 6} Commencing on June 21, 2016, the matter was tried before a jury on the issue of damages. Appellant sought a total of $11,939.75 in damages, while appellee asked for the jury to award appellant $1,153.06, based on the supplemental parts list, average car rental cost for 24 days, and filing fee. The jury returned a verdict in favor of appellant for $1,153.06. On June 27, 2016, the trial court issued a judgment, journalizing the jury‘s verdict. Appellant appeals the judgment of the trial court, asserting the following three assignments of error:
- THE TRIAL COURT ERRED IN PERMITTING AN ALLSTATE INSURANCE ADJUSTOR TO TESTIFY AS AN EXPERT WITNESS IN A DAMAGES ONLY AUTO ACCIDENT TRIAL.
- THE TRIAL COURT ERRED IN DENYING PLAINTIFF‘S MOTION IN LIMINE AND MOTION FOR SUMMARY JUDGMENT.
- AN INSURANCE ADJUSTOR TESTIFYING AT TRIAL IS NOT IMMUNE FROM QUESTIONS DIRECTED AT HIS BIAS.
{¶ 7} We will address appellant‘s third assignment of error first, as it is dispositive of this appeal. In his third assignment of error, appellant argues the trial court erred when it prohibited him from asking Petrucz questions directed at his bias based on his
{¶ 8}
{¶ 9} In reaching a decision involving admissibility under
{¶ 10} Although evidence may be damaging or harmful to the defendant, that does not necessarily mean that the evidence is prejudicial under the rules of evidence. Only when the evidence induces the jury to decide the case on an improper basis, i.e., an
“Exclusion on the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair prejudice simply meant prejudice, anything adverse to a litigant‘s case would be excludable under Rule 403. Emphasis must be placed on the word ‘unfair.’ Unfair prejudice is that quality of evidence which might result in an improper basis for a jury decision. Consequently, if the evidence arouses the jury‘s emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence appeals to the jury‘s emotions rather than intellect.”
Oberlin at 172, quoting Weissenberger, Ohio Evidence, Section 403.3, at 85-87 (2000).
{¶ 11} In the present case, appellant attempted to question Petrucz as to his bias in the case based on his employment with Allstate. Appellant asked Petrucz directly whether he was biased and whether there was any advantage to him in maximizing the diminution of value number in his testimony. The trial court sustained the objections of appellee‘s counsel to appellant‘s inquiries. Appellant argues that because Petrucz was an employee of Allstate, which had a direct interest in the outcome of the case, the jury had a right to know this relationship and Allstate cannot hide behind the protection of insurance disclosure by calling its own employee to testify as an expert.
{¶ 12} Appellant relies largely on two decisions: the Supreme Court of Ohio‘s decision in Ede v. Atrium S. OB-GYN, 71 Ohio St.3d 124, 129 (1994); and Edwards v. Louy, 6th Dist. No. L-01-1367, 2002-Ohio-3818. In Ede, the estate of a patient who died during surgery filed a medical negligence action against the doctor who performed the surgery. Prior to trial, the doctor filed a motion in limine to exclude any reference to the existence of insurance coverage. The estate countered that the doctor and his expert were members of the same mutual insurance company and because each insured in a mutual insurance company is both part owner and part insurer, the expert had a direct, personal pecuniary interest and bias in the outcome of the case. The trial court granted the motion in limine, and, at trial, sustained the doctor‘s objection to the estate‘s preliminary questions in this regard.
Therefore, we hold that in a medical malpractice action, evidence of a commonality of insurance interests between a defendant and an expert witness is sufficiently probative of the expert‘s bias as to clearly outweigh any potential prejudice evidence of insurance might cause. Thus, in the present case, the trial court acted unreasonably in excluding evidence regarding the commonality of insurance interests of [the defendant-doctor] and [the expert doctor]. The judgment of the court of appeals is reversed and the cause is remanded to the trial court for a new trial.
{¶ 15} In the current case, Allstate acknowledges the holding in Ede but claims that it is limited to medical negligence actions, and that case does not hold that an insurance adjuster is biased because he works for the same insurance company that insures the at-fault party. Allstate claims there is no probative value in telling the jury that the adjuster works for the defendant‘s insurer. Allstate asserts it makes no difference that the witness is employed by the insurer for the defendant because the jury probably assumes that the witness is employed by the defendant‘s insurer, and it is not proper “to beat the witness up” on the connection without some other evidence of bias. Allstate seems to concede that if a party can lay a proper foundation—such as a direct pecuniary interest—to establish purported bias of an insurance adjuster because the adjuster is employed by the defendant‘s insurance company, the party should be allowed to cross-examine the adjuster as to such bias.
{¶ 16} We find the trial court erred here when it prohibited appellant from questioning appellee‘s expert insurance adjuster regarding bias. Although we agree Ede involved a medical negligence action and the financial and personal relationships between the expert and insurer in Ede were different than those in the present case, the court‘s rationale and analysis in Ede ring just as true in the current automobile accident case as they did in the medical negligence case in Ede. In both situations, there is a possibility of bias based on the economic ties between the defendant‘s expert witness and the defendant‘s insurance carrier. See Piontkowski v. Scott, 65 Ohio App.3d 4, 9 (8th Dist.1989)
{¶ 17} We do not reach appellant‘s first and second assignments of error due to our disposition of appellant‘s third assignment of error.
{¶ 18} Accordingly, appellant‘s third assignment of error is sustained, his first and second assignments of error are rendered moot, the judgment of the Franklin County Municipal Court is reversed, and this matter is remanded to that court for further proceedings in accordance with law, consistent with this decision.
Judgment reversed and cause remanded.
TYACK, P.J., and LUPER SCHUSTER, J., concur.
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