Zavinski v. Ohio Dept. of Transp.Zavinski v. Ohio Dept. of Transp.
D E C I S I O N
Rendered on May 7, 2019
On brief: Stark & Knoll, and Orville L. Reed, III; Dennis J. Bartek; and Niekamp, Weisensell, Mutersbaugh & Mastrantonio, L.L.P., and Natalie M. Niese, for appellant/cross-appellee. Argued: Orville L. Reed, III, and Dennis J. Bartek.
On brief: Dave Yost, Attorney General, William C. Becker, Stacy Hannan, and Amy S. Brown, for appellee/cross-appellant. Argued: William C. Becker.
APPEAL from the Court of
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant/cross-appellee, Monique Zavinski, executrix of the estate of Dennis Zavinski, deceased, appeals and defendant-appellee/cross-appellant, the Ohio Department of Transportation (“ODOT“), cross-appeals from a judgment of the Court of Claims of Ohio awarding damages in favor of Monique in her wrongful death action against ODOT. For the following reasons, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} At approximately 7:40 a.m., on September 10, 2011, Monique‘s husband Dennis was killed in a motor vehicle accident on State Route 14 (“SR 14“) in Streetsboro, Ohio, when a tractor-trailer driven by uninsured motorist Freddie Pampley crossed the center line and struck Dennis’ vehicle. In August 2013, Monique, as the executrix of Dennis’ estate, initiated a wrongful death action аgainst ODOT, alleging that ODOT‘s negligence in directing, supervising, and accepting a paving company‘s resurfacing of SR 14 proximately caused the fatal accident. In September 2013, and in view of a pending connected action Monique filed against the paving company in the Summit County Court of Common Pleas, the Court of Claims stayed the action before it until the final disposition of the connected action. The collateral case settled in November 2014, and soon thereafter the Court of Claims lifted the stay in this matter. The Court of Claims bifurcated the issues of liability and damages for trial. In November 2015, ODOT moved for summary judgment on the basis that it had no notice of the alleged pavement defect and the pavement condition was not the cause of the accident. In December 2015, the Court of Claims denied ODOT‘s motion for summary judgment. The issue of ODOT‘s liability was tried before a magistrate of the trial court in February 2016, and, as pertinent to this appeal, the following evidence was adduced at trial.
{¶ 3} Streetsboro Chief of Police, Darin Powers, testified at trial regarding his investigation of the September 10, 2011 fatal accident. At the time of the accident, Dennis’
{¶ 4} Brian Schleppi, the highway infrastructure section supervisor for ODOT, testified regarding his role in investigating the road conditions of SR 14. He is one of the toр experts at ODOT regarding road surface friction and skid testing, and he authored “ODOT‘s Guide to Understanding and Interpreting Locked Wheel Friction Data, Ribbed and Smooth Test Tires.” ODOT strives to provide sufficient available friction on all of the roadways under its control, and new roadway surfacing should provide that friction well beyond six months. In determining whether a roadway has sufficient available friction, an evaluator must consider the friction demand based on such factors as travel speeds and any curvatures in the road. Also, to determine sufficiency, evaluators look at wet available friction because if the roadway has sufficient friction when wet, it will have sufficient friction when dry. Thus, the “higher frictional demand, the higher the sufficient level of available wet friction should be.” (Feb. 8, 2016 Tr. Vol. 1 at 141.) Based on differences in these demands, sufficient friction for one roadway may not be sufficient friction for another roadway.
{¶ 5} The available friction of a roadway is evaluated in terms of its mаcrotexture and microtexture. Macrotexture is the texture of the surface that can be seen, and microtexture is the texture of the surface that can be felt but not seen. Macrotexture provides a mechanism for water to “evacuate when the tire comes along such that the rubber of the tire and the microtexture of the surface can make contact” and therefore “reduces the hydroplaning potential.” (Pl.‘s Ex. 4, ODOT‘s Guide to Understanding and Interpreting Locked Wheel Friction Data at 1.) “Microtexture is really where the rubber meets the road.” (Pl.‘s Ex. 4 at 1.) Schleppi explained that hydroplaning occurs when a vehicles’ tires are no longer in contact with the road surface and are “entirely riding on a film of water.” (Feb. 8, 2016 Tr. Vol. 1 at 156.)
{¶ 6} Schleppi tests the macrotexture and microtexture levels of roadways using an accepted testing mechanism that involves
{¶ 7} Sonya Moyer was driving behind the tractor-trailer before the accident. Shе estimated her speed at 50 miles-per-hour and the tractor-trailer‘s at approximately 55-60 miles-per-hour. Immediately before the collision, she saw the trailer cross the center line and go into the oncoming traffic lane. It looked to her like the back of the trailer hydroplaned.
{¶ 8} David Powers, a civil engineer, is the director of ODOT‘s test lab in the asphalt material section. Powers, who is unrelated to Chief Powers, testified that his lab did not analyze any samples from the SR 14 repaving project, but it did approve the contractor‘s asphalt “mix design” or “recipe” for the project. (Feb. 9, 2016 Tr. Vol. 2 at 254.) The mix design determines the proportionate attributes of aggregate, air, and asphalt binder in the mix. Typically, Powers’ central lab is not involved in sample testing in the field as that task is usually performed at the district level. Samples are typically taken from the plant producing the asphalt mixture for the project, and those samples are testеd to confirm compliance with ODOT‘s required specifications for that project. The mix design for the May 2011 SR 14 repaving project was approved in March 2011.
{¶ 9} After the accident, Schleppi notified Powers about a possible problem with the SR 14 project. Powers contacted the district engineer, Marla Penza, who indicated there was nothing in the quality control records to indicate any problems on the project. However, Powers recalled reviewing an email from Clouse, who had performed the friction testing at Schleppi‘s direction, wherein he said there was “flushing” on the roadway. (Feb. 9, 2016 Tr. Vol. 2 at 283.) Powers testified that “flushing” or “bleeding” are synonymous terms used to describe an asphalt mix that has excessive asphalt binder. (Feb. 9, 2016 Tr. Vol. 2 at 270.) The excess asphalt binder goes to the surface thereby causing reduced friction. Powers explained that permitting traffic on the roadway before the applied asphalt cooled to a certain temperature can compromise the structure of the asphalt and its texture. Powers agreed that the October 2011 friction testing results were not acceptable for a roadway that had been recently repaved.
{¶ 10} Penza, a civil engineer and manager of ODOT‘s District 4 testing laboratory, testified that ODOT provides specifications for each project and the asphalt producer submits its formula for approval at the local level or at ODOT‘s central office. During each project, Penza‘s lab performs daily testing on the applied asphalt to confirm its conformity to the required specifications. Penza was informed of the October 2011 friction testing and she personally visited the site of the accident.
{¶ 11} Thomas Yager, Monique‘s engineering expert, is employed with NASA, and has done extensive work looking at pavement friction performance. He has authored a chapter in a professional publication addressing hydroplaning with respect to unloaded tractor-trailers. Yager testified that unloaded tractor-trailers can hydroplane at or below normal highway speeds, and that unloaded tractor-trailers are several times more prone to loss of control issues during wet weather than loaded tractor-trailers. Yager compared the microtexture of a roadway to the roughness of sandpaper and described the macrotexture of a roadway as larger dimension voids that promote drainage of water away from the tire footprint. Yager testified that applying an engine brake on a truck involves using the engine itself to decelerate a vehicle. He also explained that when a vehicle hydroplanes there is no braking force because the vehicle‘s tires are not in contact with the ground but are riding on a thin film of water. He testified that a newly repaved roadway should be reasonably safe for users of the roadway for eight to ten years. He opined that the friction testing results from October 2011 demonstrated that the roadway had insufficient friction in generally all circumstances. Although he did not reconstruct the accident, based on his review of the October 2011 friction testing results, Yager opined that the SR 14 roadway lacked adequate macrotexture and that the lack of pavement friction caused the accident on September 10, 2011.
{¶ 12} Jermaine Williams, a passenger in the tractor-trailer, testified that on the day of the accident he was a driver in training and Freddie Pampley was his trainer. Pampley was driving the truck in the rain on SR 14 after delivering cargo in Streetsboro when he stated to Williams: “I‘m about to do something. I‘m experienced. Don‘t yоu ever do this.” (Feb. 9, 2016 Tr. Vol. 2 at 476.) Pampley applied the engine brake as they went through a curve in the road and the trailer started to rotate. Williams and Pampley were thrown from their seats, and the vehicle came to a stop in the ditch. Williams further testified that, based on his truck driving experience and training, he believed the accident was Pampley‘s fault because he should not have used the engine brake under the circumstances.
{¶ 13} Timothy Tuttle, ODOT‘s accident reconstruction expert and retired OSHP officer, testified that he received extensive training and experience performing accident investigations and reconstructions during his time with the OSHP. On August 23, 2015, Tuttle examined the accident scene and completed a topographical and forensic survey of the area. He created a diagram of the accident scene from the information he gathered, and he used that diagram to work backwards to determine how the crash occurred. He аlso used a computer program to reconstruct the accident. Based on his investigation and reconstruction work, Tuttle concluded that Pampley‘s application of the engine brake pulled the tractor-trailer slightly to the right, and that Pampley overcorrected and steered the vehicle too far left into the oncoming lane. Pampley then steered back to the right off the road and into a guardrail, causing him to lose all control of the vehicle. Tuttle opined that insufficient available friction was not a contributing cause of the accident.
{¶ 14} Based on the evidence presented at trial, the magistrate determined that
{¶ 15} Based on the trial court‘s liability finding, the matter proceeded to a damages trial in September 2017. Alex Constable, Monique‘s economic expert, testified that her economic loss totals $478,522 in present value, based on her husband‘s earning capacity and the value of household services he provided. Additionally, Monique testified regarding the significant impact the loss of her husband has had on her life. She recalled fondly their adventures traveling, playing tennis, and enjoying other leisure activities. However, after Dennis died, she “found [herself] all alone and not capable to face life.” (Sept. 5, 2017 Tr. Vol. 1 at 73.) Monique‘s family and friends testified regarding her deterioration from a delightful, beautiful woman, to a very anxious, unhealthy woman. Her serious depression is an ongoing concern, and she has been physically failing and “looks like she came out of a concentration camp.” (Sept. 5, 2017 Tr. Vol. 1 at 127.) Instead of improving over time, Monique‘s inability to deal with her husband‘s dеath has worsened.
{¶ 16} ODOT presented evidence at the damages trial demonstrating that Dennis’ estate received $885,000.00 as part of an uninsured motorists insurance coverage settlement with Dennis’ insurance carriers, and $250,000.00 in a settlement with ODOT‘s contractor on the SR 14 pavement project. ODOT also presented evidence that Dennis’ estate received $125,000.00 based on his half-interest in the law office where he practiced and $33,475.28 as income from his law practice.
{¶ 17} Based on the evidence presented at the damages trial, the magistrate recommended an award in favor of Monique in the amount of $478,522.00 for economic damages and $2,500,000.00 for non-economic damages, with a 50 percent reduction for Pampley‘s negligence, and a $1,293,475.28 total reduction for the multiple collateral benefits received. Monique presented five objections to the magistrate‘s damages decision, all of which challenged the collateral benefits reductions. ODOT filed an objection to the $2,500,000.00 non-economic damages award. The trial court overruled ODOT‘s objection, sustained Monique‘s objections insofar as the magistrate had recommended a collateral benefits reduction greater than $1,135,000.00, and otherwise overruled Monique‘s objections. The trial court ruled the magistrate erred in determining that the estate‘s recovery of Dennis’ interest in the law office ($125,000.00) and his law practice income ($33,475.28) should be
{¶ 18} Monique appeals, and ODOT cross-appeals.
II. Assignments of Error
{¶ 19} Monique assigns the following error for our review:
The trial court erred to the prejudice of Plaintiff by improperly determining that the sum of $885,000 paid to her by uninsured motorist carriers, for the negligence of Pampley, an uninsured motorist, was a “collateral benefit” within the meаning of
R.C. 2743.02(D) and then deducting that amount from the sum of money owed by ODOT for its negligence in causing the death of Dennis Zavinski.
{¶ 20} ODOT assigns the following errors for our review:
- The trial court erred as a matter of law in applying strict liability and finding that ODOT breached its duty to maintain the road where the accident in this case occurred.
- The trial court erred in not finding the semi-tractor trailer driver solely at fault for this accident or alternatively, at a greater percentage than equally at fault with ODOT.
- The trial court erred in introducing evidence of the subsequent skid testing of the roadway.
- The bench trial award of non-economic damages was excessive.
- The trial court erred in holding that the sale of Mr. Zavinski‘s law firm and collection of attorney fees were not collateral source set offs.1
III. Discussion
{¶ 21} ODOT‘s first assignment of error alleges the trial court erroneously applied a strict liability standard and found that it breached its duty to maintain the road at the location of the fatal accident. This assignment of error lacks merit.
{¶ 22} The trial сourt did not hold ODOT strictly liable for the accident. Strict liability “is liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.” Black‘s Law Dictionary (9th Ed.2009). Strict liability is also considered “liability without fault.” Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, ¶ 26. Here, the trial court imposed liability on ODOT based on its findings that ODOT breached its duty to maintain SR 14 in a reasonably safe condition, and that this negligent conduct proximately caused the fatal accident.
{¶ 23} In order to sustain an action for negligence, a plaintiff must show the existence of a duty owing from the defendant to the plaintiff or injured party, a breach of that duty, and that the breach was the proximate cause of resulting damages. Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981). Whether a duty exists in a negligence action is a question of law, but whether that duty was breached and whether the breach proximately caused an injury are normally questions of fact to be decided by the trier of fact. Kemer v. Ohio Dept. of Transp., 10th Dist. No. 09AP-248, 2009-Ohio-5714, ¶ 16. We review questions
{¶ 24} ODOT has a general duty to maintain its highways in a reasonably safe condition for the traveling public. Knickel v. Dept. of Transp., 49 Ohio App.2d 335 (10th Dist.1976); Estate of Marlee Grace Morgan v. Ohio Dept. of Transp., 10th Dist. No. 10AP-362, 2010-Ohio-5969, ¶ 11;
{¶ 25} The state, however, is not an insurer of the safety of travelers on its highways. Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d 723 (10th Dist.1990). ODOT is not liable for damages caused by a hazard on a state highway unless ODOT had actual or constructive notice of the hazard, or ODOT was actively negligent in creating the hazard. McClellan v. Ohio Dept. of Transp., 34 Ohio App.3d 247, 249 (10th Dist.1986); see Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 10 (“When the business owner creates the hazardous condition which causes the plaintiff‘s injury, the plaintiff need not demonstrate that the business owner had actual knowledge or constructive notice of the hazardous condition.“); Crane v. Lakewood Hosp., 103 Ohio App.3d 129, 136 (8th Dist.1995) (“[O]ne who has created the condition is presumed to know what it created.“). Active negligence occurs when “the tort committed is through the tortfeasor‘s аctual participation in the tort or his knowing acquiescence in the continuation of a dangerous situation which gives rise to the injury.” Nevins v. Ohio Dept. of Transp., 132 Ohio App.3d 6, 26 (10th Dist.1998).
{¶ 26} The record contains competent, credible evidence that ODOT breached its duty to maintain SR 14 in a reasonably safe condition for travelers. According to the testimony at trial, the roadway, which was paved in May 2011, should have been structurally sound and sufficiently textured for eight to ten years, or even more. Despite this useful life expectation, the testimony of Monique‘s expert, Yager, indicated the October 2011 friction testing results demonstrated an unreasonably dangerous condition. Schleppi, ODOT‘s expert regarding roadway surface friction, agreed that results of the October 2011 friction testing indicated the roadway was unreasonably dangerous. ODOT asserts, however, that other evidence demonstrated that the mixture used for the repaving project had been approved for use and that sample testing conduсted during the project showed conformity with the approved mixture specifications as to the aggregate, asphalt binder, and air contained therein. However, flushing was observed when the roadway was tested in October 2011. The appearance of flushing indicates a problem with applied asphalt because that condition occurs when too much liquid asphalt binder rises to the surface before solidifying, causing reduced available friction. This can occur if either an improper mixture is used or the applied asphalt is not sufficiently cooled before the
{¶ 27} Accordingly, we overrule ODOT‘s first assignment of error.
{¶ 28} In its second assignment of error, ODOT asserts the trial court erred in not either finding Pampley‘s negligence as the sole proximate cause of the accident or attributing more than 50 percent of proximate causation to his negligence. This assignment of error lacks merit.
{¶ 29} Negligence is without legal consequence unless it is a proximate cause of an injury. Whiting v. Ohio Dept. of Mental Health, 141 Ohio App.3d 198, 202 (10th Dist.2001), citing Osler v. Lorain, 28 Ohio St.3d 345, 347 (1986). The rule of proximate cause “requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer as likely to follow his negligent act.” Jeffers v. Olexo, 43 Ohio St.3d 140, 143 (1989). An injury may be the result of more than one proximate cause. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 40. “Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.” Garbe v. Halloran, 150 Ohio St. 476 (1948), paragraph one of the syllabus.
{¶ 30} ODOT argues Pampley‘s negligence was the sole proximate cause of the accident. Williams, Pampley‘s passenger, testified that Pampley applied the vehicle‘s engine brake and then he lost control of the vehicle. Williams further indicated that Pampley should not have applied the engine brake under the circumstances. Consistent with Williams’ testimony, Tuttle, ODOT‘s accident reconstruction expert, testified that the accident was caused because Pampley applied the engine brake, overcorrected the vehicle, and then lost complete control of the vehicle. Tuttle opined that any inadequate available friction on the road did not cause the accident. ODOT asserts that in view of this evidence, but for Pampley applying the engine brake, the tractor-trailer would have continued in its lane of travel and the accident would have been averted. While ODOT is correct that the testimony of Williams and Tuttle would have supported a finding that Pampley‘s negligence was the sole proximate cause of the accident, other evidence supported the trial court‘s finding that there was more than one proximate cause of the accident. As discussed above, Monique introduced testimony that the roadway had inadequate available friction at the time of the accident, and her expert, Yager, opined that the absence of adequate roadway friction caused the accident. Therefore, evidence supported a finding that ODOT‘s and Pampley‘s independent tortious conduct converged to cause thе fatal accident.
{¶ 32} For these reasons, we overrule ODOT‘s second assignment of error.
{¶ 33} In ODOT‘s third assignment of error, it asserts the trial court erred in permitting the introduction of evidence relating to the October 2011 friction testing. It argues the evidence of the friction testing constituted inadmissible evidence of subsequent remedial measures. We disagree.
{¶ 34} Decisions regarding the admissibility of evidence lie within the broad discretion of the trial court. State v. Hymore, 9 Ohio St.2d 122, 128 (1967). As a result, a decision by the trial court to admit or exclude evidence will be upheld on appeal absent an abuse of discretion by thе trial court. O‘Brien v. Angley, 63 Ohio St.2d 159, 164-65 (1980); Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, ¶ 20.
{¶ 35} Evidence of subsequent remedial measures is inadmissible to prove negligence.
{¶ 36} Here, in response to Chief Powers’ concerns regarding SR 14, ODOT friction tested the roadway. Due to the results of those tests, ODOT performed diamond grinding of the roadway to increase its available friction. As to the diamond grinding, the trial court sustained ODOT‘s objection to the admission of evidence regarding that action. However, the trial court permitted, over ODOT‘s objection,
{¶ 37} We find the trial court appropriately determined that the diamond grinding was a subsequent remedial measure but the friction testing was not. While our research does not reveal any Ohio case directly on point, we agree with the reasoning of the majority of jurisdictions outside Ohio concluding that post-incident investigations are admissible. See J.B. Hunt Transport, Inc. v. Zak, 58 N.E.3d 956, 966 (Ind.App.2016) (observing that the “majority of jurisdictions agree that a post-incident investigation and report of the investigation do not constitute inadmissible subsequent remedial measures“).2 The testing of SR 14 in October 2011 was performed to determine whеther there was a problem in regard to the available friction of the roadway. The friction testing of the roadway did not, in any way, change the condition of the hazard. Only when a measure was taken to alter the available friction of the roadway, by means of diamond grinding, did the hazard as it existed change. Thus, in this situation, the remedial measure was the diamond grinding of the roadway, not the testing performed to identify the extent of a hazard. Consequently, we find the trial court did not abuse its discretion in admitting the evidence regarding the October 2011 friction testing.
{¶ 38} Accordingly, we overrule ODOT‘s third assignment of error.
{¶ 39} ODOT‘s fourth assignment of error contends the trial court‘s non-economic damages award was excessive. According to ODOT, the factual circumstances of this case warranted a non-economic damages award far below the $2,500,000 actually awarded. We find the trial court‘s award is supported by the evidence.
{¶ 40}
{¶ 41} ODOT argues the trial court‘s non-economic damages award was the result of sympathy for Monique, not reason. We disagree. The trial court thoughtfully considered the deep and profound impact Dennis’ death has had on Monique. Competent, credible evidence showed that, in the years following her husband‘s death, Monique‘s physical and mental health has continued to deteriorate. Monique, as well as her family and friends, testified regarding the extent the loss of her husband has negatively affected her life. The testimony demonstrated that before his death, Monique was healthy and positive, but she has been physically and mentally failing since his death. Thus, the trial court reasonably found that the loss of Dennis has removed the major source of her happiness and emotional well-being, and that she has endured significant mental anguish as a result his deаth. We agree with ODOT that the trial court‘s damages award of $2,500,000 for Monique‘s loss of society and mental anguish is remarkably high. And ODOT is correct that this amount is more than non-economic damages awarded to other surviving spouses in at least two other wrongful death actions involving ODOT. ODOT cites Reed v. Ohio Dept. of Transp., Ct. of Cl. No. 2010-02065, 2013-Ohio-1515, and Miller v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-07679, 2013-Ohio-3635, wherein the Court of Claims of Ohio, based on the particular facts and circumstances before it, awarded $1,000,000 in non-economic damages to the surviving spouses of decedents who died as a result of ODOT‘s negligence. However, the amounts awarded in those cases did not somehow limit the Court of Claims’ ability to evaluate this case independently and determine the level of loss of society and mental anguish borne by Monique. In the final analysis, given the profoundly damaging impact Dennis’ death has had on Monique, we cannot conclude that this award was the result of passion, prejudice, sympathy, or any other impermissible basis, or that it was manifestly excessive.
{¶ 42} Because the trial court‘s awаrd of $2,500,000 for non-economic damages was supported by the record, we overrule ODOT‘s fourth assignment of error.
{¶ 43} In her sole assignment of error, Monique contends the trial court erred in reducing her recovery by $885,000 based on the sum received by her husband‘s estate as settlement proceeds from his uninsured motorist insurance carriers. We agree.
{¶ 44}
{¶ 45} Here, the trial court determined ODOT and Pampley were equally at fault concurrent tortfeasors and, accordingly, found both liable for an equal proportionate share (50 percent each) of the total damages awarded. See
{¶ 46} For these reasons, we sustain Monique‘s sole assignment of error.
IV. Disposition
{¶ 47} Having overruled ODOT‘s first, second, third, and fourth assignments of error and sustained Monique‘s sole assignment of error, we affirm in part and reverse in part the judgment of the Court of Claims of Ohio and remand this matter to that court for further proceedings consistent with law and this decision.
Judgment affirmed in part and reversed in part; cause remanded.
DORRIAN, J., concurs.
SADLER, J., concurs in part and dissents in part.
SADLER, J., concurring in part and dissenting in part.
{¶ 48} Because I agree with the majority‘s resolution of the four assignments of error of the Ohio Department of Transportation (“ODOT“) but disagree with their resolution of Monique‘s single assignment of error, I respectfully concur in part and dissent in part.
{¶ 49}
{¶ 50} In Community Ins. Co. v. Ohio Dept. of Transp., 92 Ohio St.3d 376 (2001), the Supreme Court of Ohio determined medical insurance payments made to the insured claimant from her employer‘s medical insurance carrier constituted deductible collateral benefits under
{¶ 51} The insurance company subsequently filed a complaint against ODOT seeking recovery of 60 percent of the $245,000 the insurer had paid to the insured. The Supreme Court, interpreting
{¶ 52} Here, the $885,000 received by the claimant represents a payment from Monique‘s uninsured motorist carrier for a liability shared by the state. Under Van Der Veer and Community Ins., the payment to Monique from a policy of insurance owned by Monique is a collateral recovery subject to the set-off provisions in
{¶ 53} The majority holds the Court of Claims erred when it reduced Monique‘s recovery against ODOT by the insurance proceeds she received from her uninsured motorist carrier. In so holding, the majority relies on the decision of the Supreme Court in Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260 (1995), and the decision of this court in Nevins v. Ohio Dept. of Transp., 132 Ohio App.3d 6 (10th Dist.1998). I find those cases to be legally and factually distinguishable.
{¶ 54} The Buchman case involved the deduction frоm an award against a political subdivision of Social Security and Medicare
{¶ 55} Here, unlike the collateral benefits paid to plaintiff‘s children in Buchman, the insurance proceeds for which the state seeks to reduce Monique‘s award in this case can be matched directly to recovery received by Monique as a result of the Court of Claims’ verdict. There is no question the $885,000 payment to Monique from her uninsured motorist carrier corresponds to an award of damages to Monique. Contrary to the conclusion reached by the majority, Buchman does not require the Court of Claims to match the collateral benefit to a particular joint tortfeasor in order for the deduction to be lawful.3
{¶ 56} Similarly, Nevins does not support the majority decision.4 In Nevins, three members of plaintiffs’ family died when their car struck a concrete divider in a gore median on a highway interchange. Plaintiffs sued ODOT and its contractor, alleging negligence in the maintenance of the interchange. The case against ODOT was tried to the court, while the case against defendant contractor was tried to a jury. Damages were awarded against each defendant in proportion to the negligence that each party exhibited, $1,570,000.00 against ODOT and $1,654,417.62 against the contractor. The Court of Claims rejected ODOT‘s argument that
{¶ 57} In overruling ODOT‘s assignment of error related to the set off, this court determined the payment by the contractor of its proportionate share of the total damage award was not “collateral recovery received by the claimant,” as that term is used in
The [estate‘s] damages attributable to [the contractor] are, therefore, not collateral to or additional to ODOT‘s share, but are part of the primary damages awarded to the [estate]. The damages awarded against [the contractor] make up their share of the one hundred percent total damages awarded to the [estate], and are not a collateral source under
R.C. 2743.02(D) . Therefore, the trial court did not err in refusing to set off ODOT‘s damages against those of [the contractor].
{¶ 58} Though this court in Nevins referred to the matching requirement in Buchman when discussing the application of
{¶ 59} Heritage and the contractor then brought suit against ODOT in the Court of Claims seeking indemnity and/or contribution. The Court of Claims dismissed the suit, concluding that neither Heritage nor the contractor could recover anything from ODOT because
{¶ 60} In Heritage, the Suрreme Court was presented with the question of whether
{¶ 61} The Nevins case does not speak to the same collateral recovery issue presented in this case. Nevins and Heritage involve a direct payment to the claimant by a joint tortfeasor or the joint tortfeasor‘s insurance carrier. Such payments are not considered collateral recovery to the claimant under
{¶ 62} The case before us involves insurance proceeds Monique received from her uninsured motorist carrier. As stated by this court in Van Der Veer, “the legislature chose not to make distinctions between various types of insurance but chose to include all insurance proceeds. Such a distinction is better left to the legislature.” Van Der Veer at 69. The language of
{¶ 63} For the foregoing reasons, I would overrulе Monique‘s sole assignment of error, as well as the four assignments of error raised by ODOT. Because the majority does otherwise, I respectfully concur in part and dissent in part.
Notes
All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.
[Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be provided by law.
(Emphasis added.)