Roberts v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 10 October 2003
• Docket Number: No. 19785.,19785.
• Citation: 802 NE 2d 157,155 Ohio App.3d 535
• Parties: ROBERTS et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

155 Ohio App.3d 535

2003-Ohio-5398

802 NE 2d 157

2003-Ohio-5398

ROBERTS et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.^*

No. 19785.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided October 10, 2003.

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Dwight D. Brannon, for appellants.

Steven G. Janik, Matthew J. Grimm and Jeffrey T. Peters; Michael L. Close, for appellee and cross-appellant National Union Fire Insurance Company of Pittsburgh, PA.

Gordon D. Arnold, for appellee State Farm Insurance Company.

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FAIN, Presiding Judge.

{¶ 1} Plaintiffs-appellants Carol S. Roberts, her husband, Robert Roberts, and their daughters, Dawana and Dreama Roberts ("the Robertses"), appeal from a judgment rendered in their action to recover uninsured/underinsured motorist coverage against defendant-appellee and cross-appellant National Union Fire Insurance Company of Pittsburgh, PA. They assign as error the trial court's denial of their motion for a directed verdict, the trial court's refusal to instruct the jury on their proposed jury instruction, the trial court's failure to grant prejudgment interest from the date of Carol Roberts's injury, and the trial court's grant of National Union's motion for a modified verdict reducing Carol Roberts's verdict against National Union by a settlement amount paid by State Farm Mutual Automobile Insurance Company.

{¶ 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 come to the conclusion only that Carol Roberts's 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's 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 Carol Roberts's loss to be covered. The accrual 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's 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's verdict against National Union by the settlement amount paid by State Farm because not to 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. 3937.18, because Emery, Roberts's employer, is self-insured. 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. 3937.18 and Linko v. Indemn. Ins. Co. (2000), 90 Ohio St.3d 445, 739 N.E.2d 338. National Union also contends that Roberts's injuries were not covered by the policy because a forklift is not a covered auto for purposes of UM/UIM coverage under the policy.

{¶ 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. 3937.18. We further conclude that the rejection and selection of lesser limits of UM/UIM coverage by Emery were not valid, because National Union did not make a meaningful offer; therefore, National Union is required to provide UM/UIM coverage as a matter of law. Although the National Union 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.

{¶ 8} Accordingly, the judgment of the trial court is affirmed.

I

{¶ 9} On March 17, 1998, Carol Roberts was injured when a piece of steel fell on her foot while she was assisting a forklift operator at her place of employment, Emery Air Freight Corporation. In November 1998, Roberts began physical therapy for her foot injury at the ProWork Center at Miami Valley Hospital. During physical therapy at ProWork, Roberts injured her back and ribs.

{¶ 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's 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 part, against State Farm and National Union, seeking UM/UIM coverage for Roberts's 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's 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's back and rib injuries were not proximately caused by the forklift accident.

{¶ 13} After the trial, the Robertses moved, in part, for a directed verdict and for prejudgment interest, and National Union moved for a modified verdict, requesting that the trial court reduce Roberts's 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's $92,000 verdict against National Union by the $100,000 payment made by State Farm. From this judgment, the Robertses appeal, and National Union crossappeals.

II

{¶ 14} The Robertses' first assignment of error is as follows:

{¶ 15} "The trial court erred when it refused to direct a verdict in favor of plaintiffs/appellants on the issue of causation."

{¶ 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's 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's 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 nonmoving party, finds that reasonable minds could come to but one conclusion, upon any determinative issue, and that conclusion is adverse to the nonmoving party. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 679, 693 N.E.2d 271. A motion for a directed verdict must be denied where there is substantial, competent evidence from which a reasonable mind could find in favor of the nonmoving party. Id. The court must not consider the weight of the evidence or the credibility of the witnesses but must...