Jordan v. Westfield Ins. Co., 2008 Ohio 1542 (Ohio App. 3/20/2008), 07 MA 18.
| Decision Date | 20 March 2008 |
| Docket Number | No. 07 MA 18.,07 MA 18. |
| Citation | 2008 Ohio 1542 |
| Parties | Mary Jordan, et al., Plaintiffs-Appellants, v. Westfield Insurance Company, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Affirmed in part. Reversed in Part. Modified.
Atty. Walter Kaufmann, Boyd, Rummell, Carach, Curry, Kaufmann & Bins-Castronovo Co., P.O. Box 6565, Youngstown, Ohio 44503, for Plaintiffs-Appellants.
Atty. Craig G. Pelini, Pelini & Associates LLC, 8040 Cleveland Avenue, NW, Suite 400, North Canton, Ohio 44720, for Defendant-Appellee.
Before: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.
{¶1} This appeal involves insurance coverage arising out of a rear-end automobile collision caused by an uninsured motorist. Appellants, Mary Douglas and Melvina Jordan, had uninsured motorists coverage ("UM") under an automobile insurance policy issued by Appellee Westfield Insurance Company ("Westfield"). Westfield denied coverage, and Appellants sued the tortfeasor and Westfield. The case went to jury trial, and Mary and Melvina were awarded a combined monetary judgment of $13,700. Westfield subsequently requested that the trial court deduct from the award the amounts of all medical bills that were paid by other insurers, such as Anthem Blue Cross Blue Shield ("Anthem"). The trial court granted Westfield's motion and deducted $10,926.61 from Mary Jordan's award, and $1,385.32 from Melvina Jordan's award, leaving a balance of $1,388.07 to be awarded to Mary and Melvina. Appellants are now challenging the setoff the trial court deducted from the jury verdict.
{¶2} It is clear from the record that the jury was presented with both the original medical bills and the amounts paid by third party providers such as Anthem. The trial court gave no instruction to the jury explaining the significance of collateral source payments or explaining that the court would be making a post-verdict setoff, even though Appellants requested such an instruction. No interrogatories were ordered by the court or offered by Appellee. The jury then returned general verdicts in favor of Appellants Mary and Melvina Jordan. The record does not indicate any reasonable grounds for deducting a setoff from the general verdict in favor of the plaintiffs. If the trial court intended to deduct collateral source benefits from that general award, it needed to make sure there was some basis established in the record for the setoff, such as providing a jury instruction or other explanation to the jury as regards the amount that would ultimately be included in this setoff. The record does not show any factual or legal basis for deducting a setoff from the jury award, and it should not have been allowed. The judgment entry deducting a setoff for collateral source payments is reversed, and the original jury award is reinstated.
{¶3} On December 10, 2000, Ronald L. Patterson negligently operated his motor vehicle so that it collided into the rear of a car operated by Douglas Jordan. Mr. Patterson was uninsured. Mary and Melvina Jordan were passengers in Douglas Jordan's vehicle at the time of the accident. Appellants Douglas, Mary and Melvina Jordan were provided UM coverage under an automobile insurance policy issued by Westfield. Westfield denied UM coverage, and on May 1, 2002, Appellants filed a complaint against the tortfeasor for negligence, and against Westfield for UM benefits. Appellants also named Anthem as a defendant due to possible subrogation rights relating to medical bills paid by Anthem.
{¶4} Westfield admitted both coverage and liability for the accident, but disputed proximate cause as to all the claimed injuries and medical expenses. During the pendency of the case, Westfield settled Anthem's subrogation claim, and Anthem was dismissed as a defendant. The case was set for jury trial. On November 11, 2004, Appellants filed proposed jury instructions regarding collateral source payments of medical expenses. The proposed jury instructions instructed the jury to disregard any collateral source payments in making their determination because the trial court, and not the jury, would deduct those payments after trial. The court rejected Appellants' jury instruction. The trial court decided to provide a general instruction on damages that said nothing about collateral source payments and nothing about the fact that the court itself would be subtracting collateral benefits from any jury award. The trial court did not order and Appellee did not provide jury interrogatories as regards this issue.
{¶5} The jury returned general verdicts in favor of Appellants Mary and Melvina Jordan in the amounts of $12,000 and $1,700 respectively, while the jury found in favor of Westfield regarding Douglas Jordan's claims. The court filed a judgment entry on November 16, 2004, granting judgment in favor of Mary Jordan for $12,000, and for Melvina Jordan for $1,700. This judgment entry was not timely served on the parties.
{¶6} Westfield subsequently filed a motion for setoff for collateral benefits paid by Anthem and for other payments it made directly to Appellants. A hearing was held on December 21, 2005, but no evidence was presented. The trial court's judgment entry of December 23, 2005, noted that Appellants' counsel did not dispute the alleged setoff at the hearing, but the court gave both parties more time to submit further evidence and legal arguments.
{¶7} On January 4, 2006, Westfield filed a supplemental brief. Westfield argued that Anthem satisfied $6,029 worth of Mary Jordan's medical bills, and $209 of Melvina's medical bills. Westfield argued that these sums constituted collateral benefits to Appellants that should be deducted from the jury award. Again, no evidence was submitted to establish the accuracy of these requested offsets. Westfield also claimed that it had entered into a settlement with Anthem that satisfied all of Anthem's subrogation claims. No evidence was submitted to prove the existence of the terms of this settlement. Westfield further argued that it had provided direct payments totaling $4,897.61 for medical expenses on behalf of Mary Jordan, and $1,076.32 in payments for medical expenses for Melvina Jordan. Once again, no evidence was offered to prove these amounts.
{¶8} Appellants filed a brief in opposition, arguing that it had opposed any setoff at trial unless proper jury instructions were given concerning collateral source payments and the setoff. Appellants also argued that even if a setoff were allowed, Westfield's claim for setoff was much too high because Anthem only paid a fraction of the medical bills. Appellants argued that a large portion of these bills were written off as a loss by the medical providers. Appellants argued that, at most, the setoff (if any) should be $1,700, which is the amount Westfield allegedly paid to Anthem to settle Anthem's subrogation claims. Appellants reminded the court that even this amount was speculative, because no settlement agreement was in evidence to establish the purported value of the claimed setoff.
{¶9} The trial court accepted Westfield's argument, and on May 26, 2006, the court filed a judgment entry that allowed deduction of the full requested setoff from the jury verdict, reducing Mary Jordan's award to $1,073.39 and reducing Melvina Jordan's award to $314.68. Appellants filed a motion for a new trial, which was overruled on December 12, 2006. Copies of the judgment were not mailed until January 16, 2007, and this timely appeal followed on January 30, 2007.
{¶10} A full trial transcript was not ordered for this appeal. A partial transcript of the jury instruction phase of the trial is part of the record. The transcript of the December 21, 2005, hearing dealing with Westfield's request for setoffs is not part of the record.
{¶11} Westfield filed a motion to dismiss the appeal as untimely, due to the fact that the trial court entered judgment on the jury verdict on November 16, 2004, and no appeal was filed of that judgment within 30 days as required by App.R. 4. On March 21, 2007, this Court determined that the appeal was timely because the trial court's own docket indicates that it failed to send timely notice to the parties of the November 16, 2004, judgment. Without a record that notice was timely sent, the time for filing an appeal had not yet expired. It should be made clear, though, that it is not the November 16, 2004, judgment that is the subject of this appeal. This appeal involves the entry filed on May 26, 2006, which deducted the setoff from the jury verdict, and contained the denial of Appellants' motion for a new trial filed on December 12, 2006. The filing of the motion for new trial tolled the time to file a notice of appeal of the May 26, 2006, judgment. See App.R. 4(B)(2). There does not appear to be any issue raised as to the timeliness of the motion for new trial. The trial court sent notice on January 16, 2007, of the judgment overruling the motion for a new trial. The notice of appeal was filed within 30 days of the service of notice of the judgment, as required by App.R. 4(A), and is therefore, timely.
{¶12} "The Trial Court committed reversible error in refusing to charge the jury as to the legal effect of collateral sources for the payment of medical expenses."
{¶13} "The Trial Court committed reversible error in setting off and deducting from the jury verdicts the entire amount of bills submitted to the first party medical insurance company for payment."
{¶14} These two assignments of error are integrally related, mostly because of the overlap of legal principles between the two. Appellants first argue that it was prejudicial error for the trial court to fail to advise the jury to disregard any collateral source payments when determining Appellants'...
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...of a plaintiff's third party payments was admitted into evidence for the jury's consideration. See e.g., Jordan v. Westfield Insurance Co., 2008 Ohio 1542, 2008 WL 852070, at *9, 2008 Ohio App. LEXIS 1354, at *24–25 (Ohio Ct.App. March 20, 2008) (Defendant's post-trial motion for setoffs of......