[Cite as Zavinski v. Dept. of Transp., 2018-Ohio-1502.]




MONIQUE ZAVINSKI, Exec.                                   Case No. 2013-00452

        Plaintiff                                         Magistrate Anderson M. Renick

        v.                                                DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
TRANSPORTATION

        Defendant



        {¶1} Plaintiff, Monique Zavinski, the surviving spouse of decedent, Dennis
Zavinski, brings this action for wrongful death against defendant, Ohio Department of
Transportation (ODOT). The issues of liability and damages were bifurcated. Following
a trial on the issue of liability, the magistrate found that ODOT’s negligence in failing to
maintain the roadway in a reasonably safe condition was a proximate cause of the fatal
accident. The magistrate recommended judgment in favor of plaintiff, with a 50 percent
reduction in any award of damages to account for the negligence of the driver of the
truck that struck Dennis’ vehicle.             The court adopted the magistrate’s decision and
entered judgment accordingly.              The case then proceeded to trial on the issue of
damages.
        {¶2} Plaintiff was born and raised in France where she earned a degree in
English. After visiting the United States, she enrolled as a graduate student at Kent
State University where she met Dennis, who was also a student. Monique and Dennis
were married on September 10, 1969.
        {¶3} On the morning of September 10, 2011, Dennis left home to work on a
property that the Zavinskis were planning to sell. Plaintiff testified that Dennis had
promised to return by noon to be with her on their 42nd wedding anniversary. A short
Case No. 2013-00452                           -2-                                 DECISION


time later, plaintiff saw a police car arrive at the residence. The police officers informed
her that Dennis had been in “a terrible accident.”

Wrongful Death
       {¶4} R.C. 2125.02 provides, in part:
       {¶5} “(A)(2) The jury, or the court if the civil action for wrongful death is not tried
to a jury, may award damages authorized by division (B) of this section, as it determines
are proportioned to the injury and loss resulting to the beneficiaries in division (A)(1) of
this section by reason of the wrongful death and may award reasonable funeral and
burial expenses incurred as a result of the wrongful death.
       {¶6} “* * *
       {¶7} “(B) Compensatory damages may be awarded in a civil action for wrongful
death and may include damages for the following:
       {¶8} “(1) Loss of support from the reasonably expected earning capacity of the
decedent;
       {¶9} “(2) Loss of services of the decedent;
       {¶10} “(3) Loss of the society of the decedent, including loss of companionship,
consortium, care, assistance, attention, protection, advice, guidance, counsel,
instruction, training, and education, suffered by the surviving spouse, dependent
children, parents, or next of kin of the decedent;
       {¶11} “(4) Loss of prospective inheritance to the decedent’s heirs at law at the
time of the decedent’s death;
       {¶12} “(5) The mental anguish incurred by the surviving spouse, dependent
children, parents, or next of kin of the decedent.”
       {¶13} Pursuant to R.C. 2125.02(A)(3)(b)(i), the “court may consider all factors
existing at the time of the decedent’s death that are relevant to a determination of the
damages suffered by reason of the wrongful death.”
Case No. 2013-00452                         -3-                                DECISION


Economic Damages
       {¶14} Plaintiff testified that Dennis worked as an attorney and that he loved his
job. Plaintiff related that Dennis took good care of himself and was in very good health
at the time of the accident. Edmund Bowers, an attorney who had known Dennis for
many years, testified that Dennis was an accomplished attorney who was dedicated to
the practice of law. Bowers related that he was 75 years old and that neither he nor
Dennis had ever talked of retirement.
       {¶15} Alex Constable, plaintiff’s economic expert, testified regarding Dennis’
earning capacity and the value of household services he provided. (Plaintiff’s Exhibit
25.) Constable noted that Dennis was 68.9 years old at the time of his death and that,
according to federal reports which are used by economists, his statistical life expectancy
was 84.4 years.     Constable opined that men who had obtained a similar level of
education as Dennis would be expected to work until the age of 75.1, meaning that
statistically, Dennis had an additional 6.2 years to work before retirement.
       {¶16} To calculate earning capacity, Constable reviewed the Zavinskis’ tax
returns from 2001 to 2011 to compute a “weighted” average income for Dennis, which
was calculated to be $66,719. Constable multiplied the yearly average income by the
6.2 years of work before retirement, assuming no growth in the weighted average over
those years. Finally, Constable testified that Dennis’ earning capacity must be reduced
to reflect his personal consumption.      Constable accounted for estimated personal
consumption by referring to accepted economic journals which show figures
representing marginal consumption according to family size and then subtracting that
percentage (30.3 percent) from the total income ($413,658) to arrive at net loss of
income of $288,502, which represents earning capacity for Dennis through his expected
retirement age.
       {¶17} Based upon the evidence presented, the court finds that the expected
retirement age used by Constable (75.1) was reasonable given the undisputed evidence
Case No. 2013-00452                        -4-                                DECISION


that Dennis was dedicated to the practice of law and in good health at the time of the
accident. The court was also persuaded by Edmund Bowers’ testimony that he and
Dennis had never discussed any plans of retirement during their years of friendship.
Similarly, Bernard Perisse, plaintiff’s brother, testified that he had a very close
relationship with Dennis and that Dennis never spoke of retirement.
      {¶18} Regarding compensation for the loss of Dennis’ services, plaintiff testified
that he performed many household tasks and particularly enjoyed gardening and
“handyman” work. Plaintiff related that Dennis also often helped with shopping and
cooking.   Plaintiff’s friends and family corroborated her testimony regarding the
household responsibilities that Dennis performed. Bernard Perisse testified that plaintiff
relied on Dennis for many tasks, including general household maintenance and all
financial responsibilities. According to Perisse, plaintiff was not used to shopping or
paying bills, and he had to show her how to pump gasoline because Dennis had always
performed that task. Linda Bowers, a close friend of plaintiff’s, testified that she was
concerned when she noticed that there was no food in plaintiff’s kitchen cabinets and
when she accompanied plaintiff to go grocery shopping, she concluded that plaintiff did
not know how to shop. Bowers testified that it was apparent that Dennis had performed
the cooking and cleaning. Jane Thomas, another friend, also testified that plaintiff had
relied upon Dennis for many things. Thomas testified that after Dennis’ death, plaintiff
had advised her to learn about finance and paying bills.
      {¶19} Constable explained that the value of household services provided
included household management such as food preparation and lawn work, purchasing
goods and services, and caring for family members. The U.S. Department of Labor
publishes statistical data regarding the number of average hours of household services
provided per day by gender, employment status, and family size. (Plaintiff’s Exhibit 25,
page 7.) Constable testified that he applied a “blended average” of hourly pay rates for
service and maintenance occupations to the annual hours to calculate the value of
Case No. 2013-00452                         -5-                                DECISION


household services for Dennis during his expected lifetime. (Id. page 8-9.) Constable
used a discount rate to calculate the present value of household services, which totaled
$190,020. Constable opined that the combined total for both Dennis’ earning capacity
($288,502) and the value of household services he provided had a present value of
$478,522. The court notes that defendant did not present its own economic expert
either to offer an alternative analysis or to challenge Constable’s opinions. Based upon
the evidence, the court finds that $190,020 is a reasonable calculation for loss of
services and that amount is recommended pursuant to R.C. 2125.02(B)(2).
       {¶20} The court finds that the Constable testified credibly that his calculations
were relatively conservative and that he relied upon economic data which is accepted in
the field of economic and valuation analysis. Therefore, damages representing loss of
support from the reasonably expected earning capacity and for loss of services of the
decedent are recommended in the amount of $478,522.

Non-Economic Damages
       {¶21} The remaining elements of wrongful death damages are non-economic
losses: loss of society and mental anguish. R.C. 2125.02(A)(1) provides that “a civil
action for wrongful death shall be brought in the name of the personal representative of
the decedent for the exclusive benefit of the surviving spouse, the children, and the
parents of the decedent, all of whom are rebuttably presumed to have suffered
damages by reason of the wrongful death, and for the exclusive benefit of the other next
of kin of the decedent.”
       {¶22} Plaintiff testified that she and Dennis enjoyed many activities together,
including extensive traveling and other leisure interests such as tennis. Plaintiff related
that they had no children and that they had planned to “see as much of the world as
possible.”
       {¶23} Each of the lay witnesses who testified about the Zavinskis’ close and
supportive relationship explained how plaintiff has suffered both emotionally and
Case No. 2013-00452                          -6-                               DECISION


physically after Dennis’ death. Edmund Bowers testified that plaintiff “was not the same
person” without Dennis, that she was no longer happy and lively, and that her formerly
elegant appearance had deteriorated significantly. Linda Bowers described how plaintiff
had changed from a beautiful, classy, funny, and delightful woman to being very
depressed and physically distressed due, at least in part, to lack of sleep and an
inadequate diet.      Similarly, Jane and Timothy Thomas testified that plaintiff’s
appearance and condition has changed dramatically.          According to the Thomases,
plaintiff has been emotionally devastated and has not improved, even long after the
tragic event.
       {¶24} Based upon the evidence presented at trial, there is no doubt that plaintiff
and Dennis enjoyed an extraordinarily close relationship and that Dennis was the major
source of plaintiff’s happiness and emotional well-being. The court is persuaded by the
testimony of plaintiff and her family and friends that she has endured significant mental
anguish as a result of Dennis’ death. Upon consideration of the testimony presented, it
is recommended that plaintiff is entitled to non-economic damages for loss of society
and mental anguish in the amount of $2,500,000.

Apportionment
       {¶25} In the liability decision, the court determined that, pursuant to R.C.
2307.23(A), the percentage of tortious conduct that proximately caused the wrongful
death was attributable fifty percent to the driver of the truck that struck Dennis’ vehicle
and fifty percent to ODOT.      Accordingly, it is recommended that total damages for
plaintiff’s wrongful death claim are as follows:
       $ 478,522 for economic damages
       $2,500,000 for non-economic damages
       $2,978,522 total damages
       Less 50% attributable to truck driver’s negligence = $1,489,261
Case No. 2013-00452                         -7-                                  DECISION




Collateral Sources
       {¶26} R.C. 2743.02(D) provides that:
       {¶27} “Recoveries against the state shall be reduced by the aggregate of
insurance proceeds, disability award, or other collateral recovery received by the
claimant.”
       {¶28} Pursuant to McMullen v. Ohio State Univ. Hosps., 88 Ohio St.3d 332, 342
(2000), this court has the duty to deduct collateral benefits received by each beneficiary
from that beneficiary’s share of the award as adjusted by the probate court. This court
makes the collateral-source deductions only after the probate court has adjusted the
share of each beneficiary pursuant to R.C. 2125.03(A)(1). Id.
       {¶29} Based upon the exhibits from the Portage County Probate Court that were
submitted by defendant, the court finds that plaintiff has received collateral benefits as
follows:
       1) $885,000         Uninsured coverage (Defendant’s Exhibit A.)
       2) $250,000         Karvo (asphalt contractor) (Defendant’s Exhibit B.)
       3) $125,000         1/2 interest in law office (Defendant’s Exhibit C.)
       4) $ 33,475.28      Income from law practice (Defendant’s Exhibit C.)
           $1,293,475.28   Total collateral benefits

       {¶30} Accordingly, the magistrate recommends monetary damages for plaintiff’s
wrongful death claim in the amount of $195,810.72, which represents total damages
($1,489,261) less collateral benefits that were received by plaintiff ($1,293,475.28), plus
the $25 filing fee.
       {¶31} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
Case No. 2013-00452                          -8-                                DECISION


objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).




                                                   ANDERSON M. RENICK
                                                   Magistrate

cc:
Dennis J. Bartek                              Stacy L. Hannan
Natalie M. Niese                              William C. Becker
2300 East Market Street, Suite E              Assistant Attorneys General
Akron, Ohio 44312                             150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Orville L. Reed, III
3475 Ridgewood Road
Akron, Ohio 44333

Filed January 4, 2018
Sent to S.C. Reporter 4/19/18
