Kirby v. Barletto, 2009 Ohio 5090 (Ohio App. 9/17/2009)
| Decision Date | 17 September 2009 |
| Docket Number | No. 09AP-158.,09AP-158. |
| Citation | 2009 Ohio 5090 |
| Parties | James G. Kirby et al., Plaintiffs-Appellants, v. Theresa E. Barletto et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Appeal from the Franklin County Court of Common Pleas, C.P.C. No. 06CVC05-6571.
Robert J. Behal Law Offices, LLC, and John M. Gonzales, for appellants.
Lane, Alton & Horst, LLC, Belinda S. Barnes, and Ray S. Pantle, for appellee State Farm Mutual Automobile Insurance Company.
DECISION
{¶1} Plaintiffs-appellants, James G. Kirby ("James") and Ella L. Kirby ("Ella") (collectively, "appellants"), appeal the January 23, 2009 judgment of the Franklin County Court of Common Pleas in favor of appellants and against defendant-appellee State Farm Mutual Automobile Insurance Company ("State Farm"). For the following reasons, we affirm.
{¶2} This action arises as a result of an automobile collision that occurred on May 20, 2004. On that date, Theresa Barletto ("Barletto") negligently drove the automobile she was operating into the back of appellants' vehicle, which was stopped for a school bus. It is undisputed that Barletto was negligent and that her negligence was the proximate cause of the collision. State Farm insured appellants pursuant to an automobile insurance policy that provided uninsured/underinsured motorist ("UM/UIM") coverage with limits of $100,000 per person/$300,000 per accident and medical payments coverage with a limit of $100,000 per person.
{¶3} On May 18, 2006, appellants filed a complaint in the Franklin County Court of Common Pleas, alleging that they suffered injuries as a direct and proximate result of Barletto's negligence. Appellants named, as defendants, Barletto and Carol A. and Aaron Wooten, the owners of the vehicle Barletto was operating at the time of the collision. Appellants filed an amended complaint on November 7, 2006, naming State Farm as an additional defendant and alleging that State Farm was liable for appellants' damages pursuant to the terms of appellants' insurance policy.
{¶4} In February 2008, appellants executed settlement agreements and releases with respect to their claims against Barletto and the Wootens (collectively, the "settling defendants"). Appellants received $25,000 in settlement of Ella's claims and $20,000 in settlement of James' claims, in exchange for a complete release of the settling defendants from liability. The settlement agreements obligated appellants to dismiss their claims against the settling defendants with prejudice, but expressly excluded appellants' claims against State Farm. The settlement agreements and releases were filed with the trial court on August 7, 2008, as attachments to the settling defendants' unopposed motion to enforce the settlement agreements. On September 8, 2008, the trial court granted the motion to enforce the settlement agreements and dismissed appellants' claims against the settling defendants with prejudice, leaving pending only appellants' claims against State Farm.
{¶5} After a multi-day trial, the jury returned a general verdict in favor of Ella and against State Farm in the amount of $76,279, and a general verdict in favor of James and against State Farm in the amount of $16,219. Pursuant to Loc.R. 25, appellants submitted a proposed entry, setting forth judgments in the amount of the jury verdicts, plus statutory prejudgment interest from the date that appellants filed their amended complaint. State Farm also submitted a proposed entry, setting forth judgment for Ella in the amount of $51,279, plus statutory interest from the date that appellants executed the settlement agreements, and judgment in favor of James in the amount of $0. The dollar figures in State Farm's proposed judgment entry are the result of State Farm's setoff of the amounts that appellants received from the settling defendants.
{¶6} The parties filed competing motions for the trial court to adopt their respective judgment entries. State Farm argued that it was entitled to set off appellants' settlement proceeds pursuant to appellants' policy and R.C. 3937.18(C). In support of its motion, State Farm submitted a copy of appellants' policy, along with a certificate from a State Farm records custodian, and copies of appellants' executed settlement agreements and releases, which were already part of the trial court's record. Appellants argued, however, that State Farm was not entitled to a setoff because it did not plead setoff as an affirmative defense and did not present evidence at trial of its right to setoff or of the setoff amount.
{¶7} The trial court adopted State Farm's proposed entry, stating that, pursuant to R.C. 3937.18(C), a plaintiff's recovery under a UIM policy must be reduced by amounts paid to the plaintiff by the tortfeasor or the tortfeasor's insurer. The trial court entered final judgment in favor of Ella in the amount of $51,279, plus statutory interest of $3,076.74, and in favor of James in the amount of $0.
{¶8} Appellants filed a timely notice of appeal and now assert the following assignments of error:
THE TRIAL COURT ERRE[D] BY ENTERING JUDGMENT IN FAVOR OF THE [APPELLANTS] FOR AN AMOUNT LESS THAN THE JURY VERDICTS[.]
THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF STATE FARM'S PAYMENT OF [APPELLANTS'] MEDICAL EXPENSES PURSUANT TO THE MEDICAL PAYMENT PROVISIONS OF THE AUTOMOBILE INSURANCE POLICY ISS[U]ED TO [APPELLANTS.]
{¶9} We begin with appellants' first assignment of error, by which they contend that the trial court erred by entering judgment in an amount less than the jury verdicts. Appellants maintain that the trial court lacked authority to enter a judgment different from the jury's general verdict absent an inconsistency with the jury interrogatories and where State Farm neither asserted setoff as an affirmative defense in its answer nor presented evidence demonstrating its right to setoff at trial. To the contrary, State Farm maintains that R.C. 3937.18(C) and Ohio case law mandate setoff.
{¶10} Appellants first maintain that a trial court may not enter judgment that differs from a general jury verdict absent an inconsistency between the general verdict and answers to jury interrogatories. Appellants premise their argument on Civ.R. 49(B), which states that, "[w]hen the general verdict and the answers [to jury interrogatories] are consistent, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58." We reject appellants' argument. First, Ohio courts, including this court, have repeatedly affirmed post-jury-verdict setoffs in UIM cases with no indication of any inconsistency between the verdicts and jury interrogatories. See, e.g., Fickes v. Kirk, 11th Dist. No. 2006-T-0094, 2007-Ohio-6011, ¶18 (); Leisure v. State Farm Mut. Auto. Ins. Co., 5th Dist. No. 2002CA00277, 2003-Ohio-2491; Ruiz v. GEICO, 10th Dist. No. 08AP-955, 2009-Ohio-2759. In addition to UIM cases, Ohio courts have also approved post-verdict reductions of jury awards in other contexts. See, e.g., Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 270 (); Bryan v. Brown (Mar. 3, 1994), 10th Dist. No. 93AP-1061 (); Howard v. City Loan & Sav. (Mar. 27, 1989), 2d Dist. No. 88-CA-39 (). While the jury in this case determined the total amount of appellants' damages proximately caused by the accident, that amount does not necessarily reflect State Farm's liability under the terms of appellants' policy. Accordingly, we conclude that Civ.R. 49(B) does not preclude the trial court's setoff of the amounts appellants received in settlement of their claims against the settling defendants.
{¶11} We next consider the statutory and contractual bases for State Farm's claimed setoff. R.C. 3937.18(C) states that, when an insurance policy includes UIM coverage, "[t]he policy limits of the [UIM] coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured." For purposes of setoff, "amounts available for payment" means "the amounts actually accessible to and recoverable by" a UIM claimant. Littrell v. Wigglesworth, 91 Ohio St.3d 425, 430, 2001-Ohio-87, citing Clark v. Scarpelli, 91 Ohio St.3d 271, 276, 2001-Ohio-39, syllabus. In interpreting the setoff language now contained in R.C. 3937.18(C), the Supreme Court of Ohio recognized the statutory indication that "a person injured by an underinsured motorist should never be afforded greater coverage than that which would be available had the tortfeasor been uninsured." Littrell at 430, citing Clark at 276. Indeed, R.C. 3937.18(C) expressly provides that UIM coverage "is not and shall not be excess coverage to other applicable liability coverages, and shall only provide the insured an amount of protection not greater than that which would be available under the insured's uninsured motorist coverage if the person or persons liable to the insured were uninsured at the time of the accident." Accordingly, State Farm argues that R.C. 3937.18(C) mandated the trial court's deduction of amounts that appellants actually received from the settling defendants and that the trial court therefore appropriately deducted those amounts from the jury award when entering judgment.
{¶12} This court recently considered the R.C. 3937.18(C) setoff language in Ruiz, an appeal involving the trial court's reduction of a jury verdict in an action for UIM benefits. Like here, after the jury returned...
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...where “the jury did not receive evidence regarding the collateral source payment” received in settlement); Kirby v. Barletto, 2009 Ohio 5090, 2009 WL 3087311, at *5–6, 2009 Ohio App. LEXIS 4280, at *15–16 (Ohio Ct.App. Sept. 17, 2009) (trial court properly deducted collateral source payment......