802 N.E.2d 157 | Ohio Ct. App. | 2003
{¶ 2} The Robertses contend that the trial court erred in denying their motion for a directed verdict on the issue of causation, because reasonable minds could only come to the conclusion that Carol Roberts' back and rib injuries were proximately caused by the accident for which coverage was sought. Based on the record before us, we conclude that reasonable minds could come to different conclusions about whether Carol Roberts' injuries were proximately caused by the accident. Construing the evidence in a light most favorable to National Union, we conclude that the trial court did not err in denying the Robertses' motion for a directed verdict.
{¶ 3} The Robertses contend that the trial court erred in refusing to give their proposed jury instruction regarding the effect of subsequent medical malpractice on the issue of causation. We find that the Robertses' proposed jury instruction, regarding subsequent medical malpractice, is not an accurate statement of the law applicable to the facts of this case. We conclude that the trial court did not abuse its discretion in failing to instruct the jury as proposed by the Robertses, and that the Robertses were not prejudiced by the trial court's refusal to give their proposed jury instructions.
{¶ 4} The Robertses contend that the trial court erred when it granted prejudgment interest from the date summary judgment was granted in their favor against National Union regarding the issue of coverage. The Robertses contend that the trial court should have granted prejudgment interest from the accident, March 17, 1998, or, in the alternative, the date the Robertses notified National Union's insured of their claim, September 9, 1999. We conclude that the trial court did not abuse its discretion when it decided to award prejudgment interest from the date summary judgment was granted in favor of the Robertses against National Union, finding Roberts' loss to be covered. The accrual *539 date falls within the range of dates previously approved by this court in various cases as reasonable.
{¶ 5} The Robertses contend that the trial court erred when it reduced Carol Roberts' verdict against National Union by the settlement amount paid by State Farm. The Robertses contend that National Union is not entitled to set off collateral sources of recovery, because to do so defeats the purpose of underinsured motorist coverage, which is to allow an injured party to recover damages from an underinsured motorist carrier in an amount identical to those damages that the injured party would have been able to recover directly from the tortfeasor. We conclude that it was proper for the trial court to reduce Roberts' verdict against National Union by the settlement amount paid by State Farm, because to not do so would result in Roberts receiving compensation double the amount of her injuries as determined by the jury. This result would be contrary to the purpose of uninsured and underinsured motorist (UM/UIM) coverage, that being to compensate an injured insured, not to give the insured a windfall.
{¶ 6} National Union cross-appeals from a summary judgment rendered against it finding that National Union must provide UM/UIM coverage as a matter of law. National Union contends that the National Union policy is exempt from the requirements of R.C.
{¶ 7} We conclude that National Union's fronting policy with Emery does not render it self-insured, and thus, the policy is not exempt from the requirements of R.C.
{¶ 8} Accordingly, the judgment of the trial court is affirmed.
{¶ 10} At the time of the accident, Roberts was insured by State Farm Mutual Automobile Insurance Company for automobile liability, including a UM/UIM coverage limit of $100,000. Roberts' employer, Emery, was insured by National Union Fire Insurance Company of Pittsburgh, PA, at the time of the accident, for commercial automobile liability with a policy period effective October 1, 1997 through October 1, 1998.
{¶ 11} The Robertses brought this action, in pertinent part, against State Farm and National Union seeking UM/UIM coverage for Roberts' injuries. Subsequently, State Farm settled with the Robertses, admitting UM/UIM coverage and agreeing to pay its limits of $100,000 to settle all claims against State Farm. National Union filed a motion for summary judgment. The trial court denied National Union's motion for summary judgment, concluding that National Union was required to provide UM/UIM coverage as a matter of law.
{¶ 12} This case was tried by a jury. After the trial court completed its instructions to the jury, the Robertses moved for a directed verdict on the issue of causation as to Roberts' injuries. The Robertses also requested that the trial court instruct the jury regarding the effect of subsequent medical malpractice on the issue of causation. The trial court denied this request. The jury returned a verdict in favor of Carol Roberts in the amount of $92,000 for her foot injury. The jury found that Roberts' back and rib injuries were not proximately caused by the forklift accident.
{¶ 13} After the trial, the Robertses moved, in pertinent part, for a directed verdict and for prejudgment interest, and National Union moved for a modified verdict, requesting that the trial court reduce Roberts' verdict by the amount of the Robertses' settlement with State Farm. The trial court denied the Robertses' motion for a directed verdict and granted Roberts' prejudgment interest from June 7, 2001, the date it had rendered summary judgment in favor of the Robertses against National Union on the issue of coverage. The trial court also granted National Union's motion for a modified verdict, reducing Roberts' $92,000 verdict against National Union by the $100,000 payment made by State Farm. From this judgment, the Robertses appeal, and National Union cross-appeals.
{¶ 15} "The Trial Court Erred When It Refused To Direct A Verdict In Favor Of Plaintiffs/Appellants On The Issue Of Causation." *541
{¶ 16} The Robertses contend that the trial court erred in denying their motion for a directed verdict on the issue of causation, because reasonable minds could come to but one conclusion that Roberts' back and rib injuries were proximately caused by the forklift accident. The Robertses maintain that all of the evidence showed that the back and rib injuries were caused by the rehabilitation of Carol Roberts' foot injury from the accident — that there was no evidence that the back and rib injuries had any other cause.
{¶ 17} A motion for a directed verdict must be granted where the court, construing the evidence most strongly in favor of the non-moving party, finds that reasonable minds could come to but one conclusion, upon any determinative issue, and that conclusion is adverse to the non-moving party. Texler v. D.O. Summers Cleaners Shirt Laundry Co.,
{¶ 18} In November, 1998, Carol Roberts began physical therapy for her foot injury at the ProWork Center at Miami Valley Hospital. At trial, Roberts testified that she injured her back while using a leg press during the therapy. Roberts further testified that she continued to complain of back pain to her therapist, who had Roberts discontinue the use of the leg press. She testified that she continued her physical therapy despite the back pain. She also testified that she suffered a rib injury during physical therapy in February, 1999, while pushing and pulling a heavy sled that had weights in it. Roberts testified that she did not immediately seek medical treatment for the rib injury, but completed her physical therapy session and went home. Three days later, Roberts sought medical treatment for the rib injury. Roberts testified that she was unable to return to physical therapy for several months after her rib and back injuries.
{¶ 19} Roberts came under the care of Dr. Michael Pedoto at Miami Valley Hospital for her back and rib injuries. During the trial, Dr. Pedoto testified that based upon a reasonable medical certainty, Roberts had a lumbar strain, a back injury, and a right rib injury. Dr. Pedoto further testified to the following:
{¶ 20} "Q. Now, doctor, having received the information that you did that she had incurred this crushing injury to her foot, that her metatarsals were broken, that she went to the work hardening program and so forth, and after reviewing the records, based upon your training, experience, within terms of a reasonable *542 medical certainty, can you tell us the proximate producing cause for the rib injury and the back injury.
{¶ 21} "A. I'm not sure I fully understand your question, sir. Basically, she was injured in the course of rehabilitating from a foot injury, and those injuries to the back and ribs occurred as a result of treatment for a foot injury."
{¶ 22} Roberts testified that she sought medical treatment from another doctor, Dr. Joseph Paley, for her foot injury in the fall of 1999. Dr. Paley testified that during Roberts' initial office visit, she complained of pain in her left foot, but did not complain of pain in any other part of her body. Dr. Paley further testified that there were no records of any office visits where Roberts complained of pain in any other part of her body than her foot.
{¶ 23} The record also shows that Dr. Paul Matrka performed an independent medical evaluation of Roberts. Dr. Matrka testified that when he saw Roberts, she did not complain of any injury other than her foot injury. On cross-examination, Dr. Matrka testified to the following:
{¶ 24} "Q. Okay. I'm going to ask you to assume that she's pretty reserved and not real open and somewhat backwards. You don't have an independent recollection — and if that's not the facts in this case, this question won't be allowed — but did you ask her if she had any other injury than the injury to her foot?
{¶ 25} "A. Yes. That's part of my history.
{¶ 26} "Q. Now, I'm uncomfortable — you said it's normally part of your history. In this particular case, do you have recollection that you asked her that?
{¶ 27} "A. Yes."
{¶ 28} On cross-examination, Dr. Matrka further testified to the following:
{¶ 29} "Q. I'm asking you in the records that you reviewed, did you find any reference to any neck, back pain —
{¶ 30} "A. There was an incident where she complained about when she was in work hardening.
{¶ 31} "Q. Doctor, did you find any evidence that as a result of the injury sustained to her foot, that before she went to the work hardening, she had some knee or back pain or other kind of pain related to her body?
{¶ 32} "A. No.
{¶ 33} "Q. Okay. Did you look for that?
{¶ 34} "A. Look for?
{¶ 35} "Q. For any other type of pain or anything like that? *543
{¶ 36} "A. Just based on what she's given me historically which is focused on her foot."
{¶ 37} Dr. Matrka testified that Roberts had a "nuisance fracture," and that he had never sent a patient with a fractured metatarsal to physical therapy. Dr. Matrka also testified to the following:
{¶ 38} "Q. Doctor, can we agree that if a patient is performing exercises improperly, they may be susceptible to injury?
{¶ 39} "A. Yes.
{¶ 40} "Q. Unrelated to the original injury?
{¶ 41} "A. That's correct."
{¶ 42} The record shows that Roberts' weekly progress note by ProWork, dated February 1, 1999 to February 5, 1999, included the comment that "client tends to hyperextend back to increase momentum for heavier overhead lifts. . . ." Roberts' discharge summary by ProWork, dated February 23, 1999, also provided, under client's limitations, that Roberts "required cueing to pace her program appropriately."
{¶ 43} Based on the foregoing evidence, we conclude that reasonable minds could come to different conclusions whether the back and rib injuries were proximately caused by the forklift accident. A reasonable mind might have found, from this evidence, that the injuries to Roberts' back and ribs were caused by her improper performance of the therapeutic exercises, which would have been an independent, intervening cause, sufficient to break the chain of causation stemming from the forklift injury to her foot. Consequently, the trial court did not err in denying the Robertses' motion for a directed verdict.
{¶ 44} The Robertses' First Assignment of Error is overruled.
{¶ 46} "The Trial Court Erred When, After Denying Plaintiffs/Appellants' Motion For A Directed Verdict, It Refused To Instruct The Jury Regarding The Effect Of Subsequent Medical Malpractice On Causation."
{¶ 47} The Robertses contend that the trial court erred in refusing to give their proposed jury instruction regarding the effect of subsequent medical malpractice on the issue of causation.
{¶ 48} "The jury instructions given by a trial court must be a correct, clear, and complete statement of the law applicable to the case. We have previously stated that a `trial court should give any requested instruction if it is *544 an accurate statement of law applicable to the facts of the case and reasonable minds could reach the conclusion sought by the instruction.' However, a trial court's decision on jury instructions is treated with deference and an appellate court will not reverse absent an abuse of discretion. An abuse of discretion . . . amounts to an attitude that is `unreasonable, arbitrary, or unconscionable.' Further, the party seeking reversal must show that the absence of the jury instruction was prejudicial to the substantial rights of its proponent." Diamond v.Creager (Mar. 1, 2002), Montgomery Cty., 2002-Ohio-916, 2002 WL 313137, at *3 (internal citations omitted).
{¶ 49} The Robertses' proposed jury instruction on this subject is as follows:
{¶ 50} "You are instructed that the Defendant, National Union Fire Insurance Company, is liable for the original injury to Plaintiff, Carol Roberts, and you are hereby instructed as a matter of law that Defendant is liable to the Plaintiffs for any additional injury or condition flowing from Plaintiff's original injury caused by the accident on March 17, 1998.
{¶ 51} "Therefore, since the Defendant is liable to Plaintiff for her injuries in the March 17, 1998 accident, in your consideration of the amount of damages awardable to Plaintiffs, you may not consider the effect of any subsequent medical treatment or any delay, difference, or injury in treatment, including any aggravation of the original injury or any additional injury caused by that treatment or delay in treatment, as relieving Defendant of any responsibility for the whole amount of those damages. The subsequent injuries were reasonably foreseeable and the cause of the injuries was the events of March 17, 1998."
{¶ 52} The trial court instructed the jury, on the issue of proximate cause, using the standard Ohio Jury Instruction 11.30, as follows:
{¶ 53} "The causal connection of the first act of negligence is broken and superseded by the second, only if the intervening negligent act is both new and independent. The term `independent' means the absence of any connection or relationship of cause and effect between the original and the subsequent act of negligence. The term `new' means that the second act of negligence could not reasonably have been foreseen."
{¶ 54} The Robertses' proposed jury instruction, regarding subsequent medical malpractice, is not an accurate statement of the law applicable to the facts of this case. The record does not demonstrate any evidence supporting the Robertses' claim of subsequent medical malpractice in the treatment of Carol Roberts' injuries. However, the record does show, as noted in Part II, above, that there is evidence from which the jury might have found that Roberts proximately, and independently, caused her back and rib injuries by improperly performing her exercises in physical therapy. Thus, the jury instructions given by the trial court *545 on proximate cause were a correct, clear, and complete statement of the law applicable to this case. We conclude that the trial court did not abuse its discretion in failing to instruct the jury as proposed by the Robertses.
{¶ 55} The Robertses' Second Assignment of Error is overruled.
{¶ 57} "The Trial Court Erred When It Failed To Grant Prejudgment Interest From The Date Of Roberts' Injury."
{¶ 58} The Robertses contend that the trial court erred when it awarded prejudgment interest from the date summary judgment was rendered in favor of the Robertses and against National Union on the issue of coverage. The Robertses contend that the trial court should have granted prejudgment interest from the date of Roberts' work accident, March 17, 1998, or, in the alternative, the date the Robertses notified National Union's insured of their claim, September 9, 1999.
{¶ 59} R.C.
{¶ 60} The Supreme Court of Ohio has held that claims for underinsured motorists coverage are contract claims arising from tortious conduct, and that prejudgment interest may be awarded, since benefits are due and payable based upon an instrument of writing, the insurance contract. Landis v. Grange Mut. Ins. Co.,
{¶ 61} The Ohio Supreme Court has held that "[w]hether the prejudgment interest . . . should be calculated from the date coverage was demanded or denied, from the date of the accident, from the date at which arbitration of damages would have ended if [the insurance company] had not denied benefits, or some other time based on when [the insurance company] should have paid [the plaintiff] is for the trial court to determine." Landis,
{¶ 62} After reviewing various cases establishing different times of accrual for prejudgment interest, including the date of the accident, the date when a court determines that the loss is covered, and the date when a jury verdict is *546 rendered, we have concluded that a trial court has broad discretion in determining the date from which prejudgment interest should be calculated. Horstman v. Cincinnati Ins. Co. (Nov. 17, 2000), Montgomery Cty., 2000 WL 1720139, at *3. We have declined to adopt a bright-line rule, that prejudgment interest should be calculated from the date of the accident, "unless and until the Ohio Supreme Court alters its current holding that when prejudgment interest should begin to accrue is a matter for the trial courts to decide within a broad possible range of options, and such decisions should not be overruled unless an appellate court finds an abuse of discretion." Id. at *4. Thus, we have recognized that the trial court has a "very wide range of latitude in fixing a time for the interest to accrue." Id. at *3.
{¶ 63} We conclude that the trial court's decision to award prejudgment interest from the date summary judgment was granted in favor of the Robertses against National Union, finding Roberts' loss to be covered, was not an abuse of discretion. The accrual date here "falls within the realm of time pinpointed in the various cases" previously reviewed by this court. See Horstman, 2000 WL 1720139, at *4.
{¶ 64} The Robertses' Third Assignment of Error is overruled.
{¶ 66} "The Trial Court Erred When It Reduced The Verdict Against Appellee By The Amount Of Appellants' Settlement With Defendant State Farm."
{¶ 67} The Robertses contend that the trial court erred when it reduced Roberts' verdict against National Union by the amount of the Robertses' settlement with State Farm. The Robertses contend that National Union is not entitled to set off collateral sources of recovery, because to do so would defeat the purpose of underinsured motorist coverage, which allows an injured party to recover damages from an underinsured motorist carrier in an amount equal to the amount of damages the injured party would have been able to recover directly from the tortfeasor.
{¶ 68} The Robertses and National Union dispute the legal nature of the underinsured motorist claim, for purposes of determining whether the collateral source rule applies. The Robertses contend that the underinsured motorist claim arises out of tort, in which event the collateral source rule applies. National Union contends that it arises out of contract, in which event the collateral source rule does not apply.
{¶ 69} The collateral source rule is "`the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused *547 which emanates from sources other than the wrongdoer.'" Carville v.Estate of Phillips (Aug. 25, 2000), Miami App. No. 99CA52, 2000 WL 1209272, at *2 (citation omitted). We have held found that "`[s]ubstantively, the collateral source rule is an exception to the general rule in tort actions that the measure of the plaintiff's damages is that which will make her whole. Through this exception, the plaintiff is allowed to receive more than the amount of damages she actually incurred. The rationale for the exception to the general rule is that benefits the plaintiff receives from a source wholly independent of the wrongdoer should not benefit the wrongdoer by reducing the amount of damages which a plaintiff might otherwise recover from him. As an evidentiary rule, the collateral source rule bars the introduction into evidence of collateral payments to the plaintiff in order to prevent the jury's consideration of such payments in determining the amount of damages.'" Id. (internal citations omitted).
{¶ 70} The Ohio Supreme Court has held that "the legal basis for recovery under the uninsured motorist coverage of an insurance policy is contract and not tort." Kraly v. Vannewkirk (1994),
{¶ 71} Here, the jury did not receive evidence regarding the collateral source payment by State Farm to the Robertses, so it did not consider the State Farm payment in determining the amount of damages owed to Roberts. The jury determined that Roberts was injured, and that her injuries could be made whole by compensating her in the amount of $92,000. Given that Roberts had already received compensation in the amount of $100,000 from State Farm, the jury's award establishes that she has already been fully compensated. To fail to reduce Roberts' verdict against National Union by the amount of the settlement with State Farm would result in Roberts's receiving compensation in an amount double the value the jury placed upon her loss — i.e., a windfall.
{¶ 72} We conclude that it was proper for the trial court to reduce Roberts' verdict against National Union by the amount of the settlement with State Farm. Based on this conclusion, we find it unnecessary to address the other arguments *548 raised by National Union in support of the trial court's reduction of the amount of the verdict.
{¶ 73} The Robertses' Fourth Assignment of Error is overruled.
{¶ 75} "Whether The Trial Court Erred And Committed Reversible Error As A Matter Of Law When It Denied Summary Judgment In Favor Of Defendant-appellee/cross-appellant National Union Fire Insurance Company Of Pittsburgh, PA."
{¶ 76} National Union contends that the trial court erred in denying its motion for summary judgment, finding that National Union must provide UM/UIM coverage as a matter of law. We review the appropriateness of summary judgment de novo and follow the standards set forth in Civ.R. 56. Koos v. Cent. Ohio Cellular, Inc. (1994),
{¶ 77} National Union contends that the National Union policy is exempt from the requirements of R.C.
{¶ 78} In Ohio, self-insurers, who comply with R.C.
{¶ 79} It is undisputed that Emery has failed to comply with the statutory requirements to qualify as a self-insured. National Union argues that the requirements of R.C.
{¶ 80} We conclude that National Union's fronting policy with Emery does not render it self-insured for purposes of the statutory exemption from the requirements of R.C.
{¶ 81} National Union further contends that Emery's prior rejections of UM/UIM coverage, and subsequent selection of lesser limits of UM/UIM coverage, met the requirements of R.C.
{¶ 82} "(C) The named insured may only reject or accept both coverages offered under division (A) of this section. The named insured may require the issuance of such coverages for bodily injury or death in accordance with a schedule of optional lesser amounts approved by the superintendent, that shall be no less than the limits set forth in section
{¶ 83} The Ohio Supreme Court has held that "`[t]here can be no rejection pursuant to R.C.
{¶ 84} Here, Emery could not make a valid rejection or reduction of UM/UIM coverage unless a meaningful offer was first made in compliance with R.C.
"In Those Jurisdictions That Have No State Requirements For Uninsured Motorist Coverage And/or Underinsured Motorist Coverage And Allow An Insured To Reject His Right To Such Coverage, By Signing The Attached Forms, The Insured Evidences That There Is No Such Coverage provided. All Such Coverage That May Be Waived Or Rejected Is Hereby Waived Or Rejected.
"STATE SELECTED LIMITS
"* * * * * *
"OHIO REJECT
"* * * * * *
"This Endorsement Does Not Apply To Owned Private Passenger Autos. Owned Private Passenger Autos Are Covered For Uninsured/underinsured Motorists At Limit Of $500,000 Per Accident. *551
{¶ 85} This rejection fails to meet the requirements of R.C.
{¶ 86} In September, 1995, Emery made a written request for a $500,000 limit on UM/UIM coverage, and included a UM/UIM rejection form in the letter. The rejection form provided, in pertinent part, the following:
"REJECTION OF "UNINSURED MOTORISTS/UNDERINSURED MOTORISTS COVERAGE "OR SELECTION OF LOWER LIMIT OF LIABILITY "(Ohio)
"The Ohio Revised Code (Section
{¶ 87} The rejection form then gave the option of deleting UM/UIM coverage or lowering the limit of liability of UM/UIM coverage. This rejection form also fails to meet the requirements of R.C.
{¶ 88} "It is well settled that insurance companies must offer UM coverage with every automobile liability or motor vehicle liability policy delivered or issued *552
in this state. R.C.
{¶ 89} National Union further contends that Roberts' injuries were not covered by the National Union policy, because a forklift is not a covered auto for purposes of UM/UIM coverage under the policy.
{¶ 90} We have held that "`[t]here is nothing, absent clear language evidencing an intent to do so, to prevent uninsured/underinsured coverage from being broader than liability coverage.'" Shropshire v.EMC/Hamilton Mut. Ins. Co. (Oct. 5, 2001), Montgomery App. Nos. 18803, 18814, 2001 WL 1173334, at *2 (citation omitted). We have also held that "circumstantial exclusions . . . provided in a business liability policy do not apply to UM/UIM coverage impressed on the policy by operation of law because, where the parties themselves never intended UM/UIM coverage to be provided by the policy, [and] negotiated exclusions which the parties intended to apply to liability coverage cannot apply to the resulting UM/UIM coverage." Id. "[B]ecause [there was] no bargain concerning UM/UIM coverage, none of the circumstantial exclusions applicable to liability coverage to which the parties agreed apply to UM/UIM coverage impressed on the policy. . . ." Id. at *3.
{¶ 91} Although the National Union Commercial Auto Policy does exclude forklifts from covered autos, we conclude that this exclusionary provision does not apply to the UM/UIM coverage arising by operation of law.
{¶ 92} For the foregoing reasons, we conclude that the trial court did not err in denying National Union's motion for summary judgment. National Union's sole Assignment of Error is overruled.
GRADY and YOUNG, JJ., concur.