Jerome W. Werner v. Scott W. Mcabier
| Decision Date | 13 January 2000 |
| Docket Number | 00-LW-0159,75197 and 75233 |
| Parties | JEROME W. WERNER, Plaintiff-Appellant v. SCOTT W. MCABIER, Defendant-Appellee CASE NO. 75197 and 75233. |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, Case Nos. CV-330494 CV-320742.
For Plaintiff-Appellant Jerome W. Werner: JOSEPH L. COTICCHIA ESQ., 1640 Standard Bldg., 1370 Ontario Street, Cleveland Ohio 44113.
For Plaintiff-Appellant Keri C. McKinnon, et al.: R. JACK CLAPP, ESQ., KYLE L. CRANE, ESQ., 2420 One Cleveland Center, 1375 East Ninth Street, Cleveland, Ohio 44114.
For Defendant-Appellee Scott W. McAbier: NICHOLAS J. FILLO, ESQ., Fillo & Siskovic, 1520 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113-1757.
Jerome Werner, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-330494, in which a jury awarded him $2,074.30 in damages for injuries sustained in a motor vehicle accident involving a car driven by defendant-appellee Scott McAbier. Werner assigns two errors for this court's review. Keri McKinnon has filed a separate appeal from the jury's $3,429.30 damage award to her for injuries sustained in the same accident. McKinnon assigns eight errors for our review.
Jerome Werner's appeal is not well-taken. Keri McKinnon's is well-taken with respect to the trial court's erroneous failure to award her the expenses incurred in the videotaping and playback of the deposition of Dr. Albainy and the court's erroneous failure to submit her proposed interrogatory to the jury. In all other respects, McKinnon's appeal is not well-taken.
On July 23, 1995, a car driven by McAlbier hydroplaned on a rain-covered roadway and rear-ended a stopped car driven by Bonnie Pascuta. Jerome Werner and Keri McKinnon were both passengers in Pascuta's car. As a result of the collision, Werner sustained injuries to his neck and back. McKinnon suffered an acute cervical strain and an acute lumbar strain.
On December 16, 1996, Keri McKinnon and another passenger in the car, Mark Whitely, filed a negligence action (CV-320742) against McAbier, Pascuta's insurance company (Grange Insurance) and McAbier's insurance company (Allstate Insurance) seeking damages for injuries sustained in the accident. McKinnon and Whitely also brought underinsured motorist claims against Grange and Allstate. Grange Insurance filed a cross claim against Allstate and McAbier for indemnification.
On February 13, 1997, Werner filed a separate action (CV-330494) against McAbier for his injuries. On May 23, 1997, the two cases were consolidated. on July 31, 1997, the plaintiffs voluntarily dismissed their claims against Grange Insurance Company.
On November 24, 1997, the trial court referred the case to arbitration. The arbitrator found in favor of Keri McKinnon in the amount of $6,000, in favor of Mark Whitley in the amount of $2,250, and in favor of Jerome Werner in the amount of $12,500. The arbitrator also found in favor of Allstate on McKinnon's underinsured motorist claim.
On February 26, 1998, McAbier appealed the arbitration decision to the common pleas court and requested a trial de novo. On July 14, 1998, McKinnon, Whitley, and Werner filed a notice of voluntarily dismissal of their claims against Allstate without prejudice. The case went to trial on July 23, 1998. On July 27, 1998, the jury returned a verdict of $2,074 in favor of Werner and $3,429.30 in favor of McKinnon.
Werner and McKinnon both filed motions under Civ.R. 59 for a new trial, or in the alternative, for judgment notwithstanding the verdict. McKinnon also filed a motion for prejudgment interest and a motion to tax additional costs. On August 26, 1998, the trial court denied all of the motions.
On September 10, 1998, Werner filed a timely notice of appeal from the jury verdict and the denial of his motion for a new trial. On September 17, 1998, McKinnon filed a timely notice of appeal from the jury verdict and the denial of her post-judgment motions.[1]
Jerome Werner's first and second assignments of error along with Keri McKinnon's first and third assignments of error all share a common basis in law and fact and shall be considered simultaneously.
Jerome Werner's first assignment of error states:
Jerome Werner's second assignment of error states:
Keri McKinnon's first assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF-APPELLANT KERI MCKINNON'S MOTION FOR A DIRECTED VERDICT ON THE MEDICAL BILLS AND PROXIMATE CAUSE.
Keri McKinnon's third assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF-APPELLANT KERI MCKINNON'S RULE 59 MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE GROUNDS THAT THE JURY VERDICT AND JUDGMENT THEREON WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
The standard for granting a motion for judgment notwithstanding the verdict or a motion for a new trial pursuant to Civ.R. 50(B) is the same as that for granting a Civ.R. 50(A) motion for a directed verdict. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 679, citing Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 121, 671 N.E.2d 252, 256, fn. 2, citing Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St. 3d 312, 318-319, 662 N.E.2d 287, 294; and Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 74 Ohio Op.2d 427, 430, 344 N.E.2d 334, 338. See, also, Baughman v. Krebs (Dec. 10, 1998), Cuyahoga App. No. 73832, unreported.
Under Civ.R. 50(A)(4), a motion for a directed verdict should be granted when, after construing the evidence most strongly in favor of the party against whom the motion is directed, the reviewing court finds that reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to the non-moving party. Wagner v. Midwestern Indemnity (1998), 83 Ohio St.3d 287, 294 600 N.E.2d 507, 513.
A motion for a directed verdict raises the legal question of whether the evidence presented was legally sufficient to take the case to the jury. Id., citing Wagner v. Roche Laboratories (1996), 77 Ohio St. 3d 116, 119, 671 N.E.2d 252, 255. See, also, Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 445 659 N.E.2d 1242, 1247. When ruling on a motion for a directed verdict, the court must not consider the weight of the evidence or the credibility of the witnesses. Texler at 679. "If there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied." Id. (Citations omitted.)
Jerome Werner argues that his motion for a new trial should have been granted because the jury's award of damages was inadequate. He argues that, because he presented uncontraverted evidence of $4,415.00 in special damages, the jury's award of $2,074.30 was erroneous. However, a review of the record reveals that McAbier agreed that Werner incurred medical bills totaling $1,298.30, but challenged the rest of the medical expenses as being unrelated to the automobile accident. McAbier elicited testimony that, at the time of the accident, Werner was still seeing Dr. Fiorini for treatment of injuries sustained in a 1993 workplace fall and had already scheduled future appointments with Dr. Fiorini. After considering this testimony, we conclude that reasonable minds could reach different conclusions as to whether the Fiorini charges were for treatment of injuries caused by the automobile accident. Accordingly, the trial court properly denied Werner's motions for a new trial, directed verdict or judgment notwithstanding the verdict.
We also reject Werner's argument that, because McAbier failed to produce expert testimony to contradict Dr. Fiorini's testimony, the jury was not permitted to award a damage amount less than that established by Dr. Fiorini's testimony. Once a plaintiff establishes a prima facie case of negligence, the opposing party may counter by either cross-examining the plaintiff's expert, producing contradictory testimony from another expert, or presenting expert testimony which "sets forth an alternative explanation for the circumstances at issue." Rechenbach v. Haftkowycz (1995), 100 Ohio App.3d 484, 492, 654 N.E.2d 374, 379, discretionary appeal not allowed (1995), 72 Ohio St.3d 1530, 649 N.E.2d 839, citing Stinson v. England (1994), 69 Ohio St.3d 451, 455-456, 633 N.E.2d 532, 537. In this case, McAbier contested Dr. Fiorini's testimony through his cross-examination, thereby creating a jury question as to whether Dr. Fiorini's charges were for treatment of injuries sustained by Werner in the auto accident. Werner's first and second assignments of error are not well taken.
We turn next to McKinnon's argument that the trial court should have directed a verdict in her favor as to the stipulated amount of medical bills she incurred as a result of the accident. We agree with McKinnon that there was no dispute between the parties as to the amount of her medical bills. However, the jury ultimately awarded her the total amount of the stipulated medical bills. Consequently, she has not demonstrated any prejudice resulting from the court's failure to grant a directed verdict in her favor.
Keri McKinnon's second assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FAILED TO GIVE THE SPECIAL...
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