[Cite as Zavinski v. Dept. of Transp., 2018-Ohio-1503.]




MONIQUE ZAVINSKI                                          Case No. 2013-00452JD

        Plaintiff                                         Judge Patrick M. McGrath

        v.                                                DECISION

OHIO DEPARTMENT OF
TRANSPORTATION

        Defendant

        {¶1} Before the court are the following filings:

        (1) written objections filed on January 18, 2018 by plaintiff Monique Zavinski,
            executrix of the estate of Dennis Zavinski, deceased, to Magistrate
            Anderson M. Renick’s decision of January 4, 2018;

        (2) a document labeled “Notice of Intent to Submit Relevant Portions of
            Transcript In Support of Her Civ.R. 53 Objections to Magistrate’s Decision”
            filed on January 18, 2018 by Zavinski;

        (3) a document labeled “State of Ohio’s Objection And Response To Plaintiff’s
            Objections” filed on January 29, 2017 by Ohio Department of Transportation
            (ODOT);

        (4) a document labeled “Plaintiff’s Memorandum (1) In Response To ODOT’s
            Civ.R. 53 Objection And (2) Plaintiff’s Reply In Support of Her Civ.R. 53
            Objections” filed on February 7, 2018 by Zavinski; and

        (5) a document labeled “Plaintiff’s Notice Of Filing Relevant Portions Of
            Transcript In Support Of Plaintiff’s Civ.R.53 Objections to Magistrate’s
            Decision” filed on February 7, 2018 by Zavinski.

        {¶2} For reasons set forth below, the court determines that (1) Zavinski’s first
objection should be overruled, (2) Zavinski’s second objection should be sustained,
(3) Zavinski’s third objection should be sustained, (4) Zavinski’s fourth objection should
be overruled in part and sustained in part, and (5) Zavinski’s fifth objection should be
overruled. The court also determines that ODOT’s objection should be overruled. The
Case No. 2013-00452JD                      -2-                                DECISION


court further determines that the magistrate’s decision should be modified, that the
magistrate’s findings of fact contained in the decision should be adopted, and that the
magistrate’s conclusions of law should be modified.

   I. Background
      {¶3} Monique Zavinski brought this case against ODOT, alleging wrongful death,
negligence, nuisance, and loss of consortium on behalf herself, as the surviving spouse
of Dennis Zavinski, and the heirs of his estate. Zavinski’s case arose from an accident
on September 10, 2011, on State Route 411 in Streetsboro, Ohio, in which a truck
driven by Freddie Pampley collided with a vehicle operated by Dennis Zavinski, which
resulted in the death of Dennis Zavinski. The court bifurcated the issues of liability and
damages for the purpose of trial.
      {¶4} On July 18, 2016, Magistrate Renick issued a decision concluding that
Monique Zavinski’s nuisance claim merged with allegations of negligence and finding
that Zavinski had proven her claim of negligence. The magistrate 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 Pampley and fifty percent to
ODOT.    The magistrate recommended a judgment in favor of Zavinski with a fifty
percent reduction to account for Pampley’s negligence. Both parties objected to the
magistrate’s liability determination. On January 5, 2017, the court overruled the parties’
objections and it adopted the magistrate’s decision and recommendation as its own.
      {¶5} After the court overruled the parties’ objections to the magistrate’s liability
determination, the court, through Magistrate Renick, held a trial on the issue of
damages.    On January 4, 2018, Magistrate Renick issued a decision wherein he
recommended non-economic damages in the amount of $2,500,000 for loss of society
and mental anguish, and $478,522 for economic damages, which resulted in a
recommended total damages award of $2,978,522. After reducing this award by fifty-
percent, Magistrate Renick determined that amount of damage attributed to ODOT’s
Case No. 2013-00452JD                        -3-                                DECISION


negligence constituted $1,489,261.       After finding that Zavinski received “collateral
benefits,” Magistrate Renick reduced the recovery against the state by the amount of
collateral benefits and he recommended “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.” (Magistrate’s Decision, at 7.)
       {¶6} On January 18, 2018, Zavinski objected to Magistrate Renick’s decision
wherein she presents five written objections:

          1. The Magistrate improperly found the $885,000 paid by the
       uninsured motorist carrier on behalf of a joint tortfeasor to be a “collateral
       benefit” and improperly deducted that sum from the amount of monies due
       and owing from the Ohio Department of Transportation (‘ODOT’) (p. 7 of
       Magistrate’s Decision, January 4, 2018);

          2. The Magistrate improperly determined that the payment made to
       the estate of Dennis Zavinski in the amount of $125,000, representing
       one-half of his interest in his law firm, was a “collateral benefit” and
       improperly deducted $125,000 from the amount due and owing from
       ODOT (p. 7 of Magistrate’s Decision, January 4, 2018);

          3. The Magistrate improperly determined the sum of $33,475.28,
       representing fees due and payable to Dennis Zavinski, deceased, from his
       practice of law prior to his death on September 10, 2011, was a “collateral
       benefit” and improperly deducted $33,475.28 (p. 7 of the Magistrate’s
       Decision, January 4, 2018) from the amount due and owing from ODOT;

          4. The Magistrate improperly deducted the total sum of $1,043,475.28
       from the amount due and owing from ODOT thereby leaving a balance of
       $195,810.072 due and owing from ODOT [footnote omitted];

           5. R.C. §2743.02(D), as applied by the Magistrate, is unconstitutional.
       Such an application constitutes an unjust taking and violates the equal
       protection and due process clause of the Constitution of the United States.
       Furthermore, R.C. 2743.02(D), applied by the Magistrate, violates the
       equal protection and due process clauses of the Ohio Constitution,
       violates the Open Court provision guaranteed by the Ohio Constitution
Case No. 2013-00452JD                         -4-                                 DECISION


       and violates Article I § 19 of the Ohio Constitution which proscribes any
       limit on wrongful death damages.

       {¶7} On January 29, 2018, ODOT filed a document that contained (1) an
objection to the magistrate’s non-economic award of $2,500,000 and (2) a response to
Zavinski’s written objections. On February 7, 2018 Zavinski filed a document containing
a response to ODOT’s objection and a reply in support of her written objections. And on
February 7, 2018, Zavinski also filed a notice indicating that she filed an excerpt of a
transcript relative to the trial on damages. Later, on February 15, 2018, ODOT filed a
transcript (volumes I and II) of the damages trial that was held before Magistrate
Renick.

   II. Law and Analysis
       {¶8} Civ.R. 53(D)(3)(b) pertains to objections to a magistrate’s decision.
Pursuant to Civ.R. 53(D)(3)(b)(i), a party “may file written objections to a magistrate’s
decision within fourteen days of the filing of the decision, whether or not the court has
adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).   If any party timely files objections, any other party may also file
objections not later than ten days after the first objections are filed.”
       {¶9} Notably, Civ.R. 53(D)(3)(b)(i) does not expressly permit a party to file a
response to another party’s objections. Neither do the Rules of the Court of Claims
(C.C.R.) permit a party to file a response to another party’s objections. Also, this court’s
local rules do not permit a party to submit a brief in opposition to a party’s objections to
a magistrate’s decision.      See L.C.C.R. 4(C) (permitting a party to file a brief in
opposition to a motion); see also L.C.C.R. 24(B)(1) (reparation appeals) (permitting a
party to file written objections within fourteen days of the filing of a magistrate’s decision
and permitting any other party to file objections not later than ten days after the first
objections are filed). Because Civ.R. 53(D)(3)(b)(i), the Rules of the Court of Claims,
and this court’s local rules do not permit the filing of a response to another party’s
Case No. 2013-00452JD                        -5-                                  DECISION


objections, the court finds that ODOT’s response in opposition to Zavinski’s objections
and that Zavinski’s response to ODOT’s objection are procedurally irregular. Moreover,
because Civ.R. 53(D)(3)(b)(i), the Rules of the Court of Claims, and this court’s local
rules do not permit a party to submit a reply in support of written objections, Zavinski’s
reply in support of her objections is procedurally irregular. Compare L.C.C.R. 4(C)
(permitting a party opposing a motion to file a brief written statement of reasons in
opposition to a motion and stating that reply briefs or additional briefs “may be filed only
upon a showing of the necessity therefor and with leave of court”).
       {¶10} With respect to the specificity of an objection, Civ.R. 53(D)(3)(b)(ii)
provides, “An objection to a magistrate’s decision shall be specific and state with
particularity all grounds for objection.” And, according to Civ.R. 53(D)(3)(b)(iii):

       An objection to a factual finding, whether or not specifically designated as
       a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a
       transcript of all the evidence submitted to the magistrate relevant to that
       finding or an affidavit of that evidence if a transcript is not available. With
       leave of court, alternative technology or manner of reviewing the relevant
       evidence may be considered. The objecting party shall file the transcript or
       affidavit with the court within thirty days after filing objections unless the
       court extends the time in writing for preparation of the transcript or other
       good cause. If a party files timely objections prior to the date on which a
       transcript is prepared, the party may seek leave of court to supplement the
       objections.

Here, with Zavinski’s objections of January 18, 2018, Zavinski filed a notice indicating
that she intended to submit relevant portions of the trial transcript to support her
objections.    Twenty days later—on February 7, 2018—Zavinski filed an excerpt of
volume 2 of the damages trial before Magistrate Renick. And ODOT filed a transcript of
the damages trial on February 15, 2018—17 days after ODOT filed its objection.


       {¶11} Civ.R. 53(D)(4) governs a court’s action on objections to a magistrate’s
decision.     Civ.R. 53(D)(4)(d) provides, “If one or more objections to a magistrate’s
Case No. 2013-00452JD                        -6-                                  DECISION


decision are timely filed, the court shall rule on those objections. In ruling on objections,
the court shall undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied
the law. Before so ruling, the court may hear additional evidence but may refuse to do
so unless the objecting party demonstrates that the party could not, with reasonable
diligence, have produced that evidence for consideration by the magistrate.”                A
magistrate’s decision “is not effective unless adopted by the court.” Civ.R. 53(D)(4)(a).
       {¶12} When this court independently reviews objections to a magistrate’s
decision, this court may give weight to a magistrate’s assessment of witness credibility
in view of a magistrate’s firsthand exposure to the evidence. See Siegel v. Univ. of
Cincinnati College of Medicine, 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.)
(“‘Although the trial court may appropriately give weight to the magistrate’s assessment
of witness credibility in view of the magistrate’s firsthand exposure to the evidence, the
trial court must still independently assess the evidence and reach its own conclusions.’
Sweeney v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis
v. Soller, 70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990)”). Thus, in this
instance, the court properly may give weight to Magistrate Renick’s assessment of the
credibility of the parties’ witnesses.

       A. ODOT’s objection to the magistrate’s award of non-economic damages
          in the amount of $2,500,000 for Monique Zavinski’s loss of society and
          mental anguish is not well-taken.
       {¶13} By its objection, ODOT essentially urges that the magistrate’s non-
economic award of $2,500,000 is not a fair and reasonable judgment reflecting the loss
in this case.
       {¶14} R.C. 2125.02 governs an award of damages in a wrongful-death action.
Pursuant to R.C. 2125.02(A)(2), if a civil action for wrongful death is not tried to a jury, a
court may award damages authorized by R.C. 2125.03(B), “as it determines are
Case No. 2013-00452JD                     -7-                               DECISION


proportioned to the injury and loss resulting to the beneficiaries described in
[R.C. 2125.02(A)(1)] by reason of the wrongful death and may award the reasonable
funeral and burial expenses incurred as a result of the wrongful death. * * *.”
R.C. 2125.02(B) provides:

      Compensatory damages may be awarded in a civil action for wrongful
      death and may include damages for the following:
      (1) Loss of support from the reasonably expected earning capacity of the
      decedent;
      (2) Loss of services of the decedent;
      (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;
      (4) Loss of prospective inheritance to the decedent’s heirs at law at the
      time of the decedent’s death;
      (5) The mental anguish incurred by the surviving spouse, dependent
      children, parents, or next of kin of the decedent.

In Phillips v. Miller, 10th Dist. Franklin No. 88AP-147, 1988 Ohio App. LEXIS 5342, at
*8-10 (Dec. 22, 1988), construing R.C. 2125.02(B), the Tenth District Court of Appeals
explained:

             Although R.C. 2125.02(B) states that the jury “may” include
      damages for any of those specified losses listed in R.C. 2125.02(B)(1)
      through (5), the jury abuses its discretion where it does not award
      damages where there is unrebutted competent, credible evidence going to
      any of the losses specified under R.C. 2125.02(B). It also should be noted,
      that the aforementioned list is not all inclusive.

             By statutory definition, loss of society is broadly defined as the
      statute is not all inclusive and relates to those areas where decedent
      improved or enhanced the quality of the beneficiaries every day life. * * *

      ***
Case No. 2013-00452JD                       -8-                                DECISION


       * * * Only a spouse can recover damages for loss of consortium. * * *

Here, according to the filed transcript and transcript excerpt, ODOT did not call any
witnesses. Thus, as to the issues of loss of society and mental anguish, the testimony
before the magistrate, as the trier-of-fact, consisted of the testimony offered by
witnesses called by Zavinski. Magistrate Renick summarized the testimony of Zavinski
and each of the lay witnesses, noting that Zavinski “was not the same person” without
her husband, her appearance had deteriorated significantly, she changed from a
“beautiful, classy, funny, and delightful woman” to a woman who is “very depressed and
physically distressed” due, in part, to a lack of sleep and inadequate diet. (Magistrate’s
Decision, 5-6.) Indeed, at trial Bernard Perisse, Zavinski’s brother, testified: “Before
Dennis died, Monique was optimistic. She was a happy person. She was an outgoing
person. She liked talking to people, and she changed. She has changed a lot. Now
she’s pessimistic.      She’s sad, depressed, I believe.   She is always under stress,
constant stress, and she’s very unhappy now.” (Tr., 28-29.) And when Perisse was
asked about Zavinski’s sleeping and eating, Perisse testified: “Well, she -- as you see
her, she’s very skinny. She is never hungry. That’s a big concern regarding her health.
She’s not – from a physical point of view, her health has been affected by Dennis’
death. She is physically and emotionally affected. She was affected, and she is still
affected.” (Tr., 30.)
       {¶15} Upon independent review of the evidence presented at the damages trial,
the court concludes that the impact of Zavinski’s loss of her husband has been
generally devastating to Zavinski as reflected in a deterioration of her physical condition
and emotional state, which has persisted during the years following her husband’s
wrongful death.
       {¶16} The court determines that Magistrate Renick’s recommendation for a non-
economic award of $2,500,000 is justified. The court overrules ODOT’s objection.
Case No. 2013-00452JD                       -9-                                DECISION


        B. Zavinski’s Fifth Objection—As-applied constitutional challenge to
           R.C. 2743.02(D).
        {¶17} By her fifth objection, Zavinski contends that R.C. 2743.02(D), as applied
by Magistrate Renick, is unconstitutional (1) because it constitutes an unjust taking in
violation of the equal protection and due process clauses of the United States
Constitution, and (2) because Magistrate Renick’s application of R.C. 2743.02(D)
violates the equal protection and due process clauses of the Ohio Constitution and “the
Open Court provision guaranteed by the Ohio Constitution and violates Article I § 19 of
the Ohio Constitution which proscribes any limit on wrongful death damages.”
        {¶18} Zavinski’s fifth objection constitutes an as-applied constitutional challenge
to R.C. 2743.02(D). Thus, Zavinski’s fifth objection essentially raises a constitutional
claim. The Tenth District Court of Appeals, however, has determined that constitutional
claims are not actionable in this court. See White v. Ohio Dept. of Rehab. & Correction,
10th Dist. Franklin No. 12AP-927, 2013-Ohio-4208, ¶ 17; Wassenaar v. Ohio Dept. of
Rehab. & Correction, 10th Dist. Franklin Nos. 07AP-712, 07AP-772, 2008-Ohio-1220,
¶ 28.    Because Zavinski’s fifth objection raises constitutional claims that are not
actionable in this court, the court determines that Zavinski’s fifth objection should be
overruled.

        C. Zavinski’s First, Second, Third, and Fourth Objections—Non-
           constitutional challenges to the magistrate’s application of
           R.C. 2743.02(D).
        {¶19} Zavinski’s first, second, third, and fourth objections ask the court to
examine (1) whether the magistrate properly determined that $885,000 in uninsured
motorist proceeds is a “collateral benefit” that should have been applied against the
recovery against ODOT (first objection); whether the magistrate properly determined
that a payment in the amount of $125,000 that represents a one-half interest in
Zavinski’s deceased husband’s law firm is a “collateral benefit” that should have been
applied against the recovery against ODOT (second objection); whether the magistrate
Case No. 2013-00452JD                      -10-                                DECISION


properly determined that the sum of $33,475.28 that represents fees due and payable to
her deceased husband before his death on September 10, 2011 is “collateral benefit”
that should have been applied against the recovery against ODOT (third objection); and
whether the magistrate properly determined that the sum of $1,043,475.28 ($885,000 +
$125,000 + $33,475.28) should have been deducted from the amount due from ODOT
because this amount constituted a “collateral benefit” (fourth objection).

       1. Overview of R.C 2743.02(D) (reduction of recoveries against the state of
          Ohio)
       {¶20} In Am.Sub.H.B. No. 800, effective January 1, 1975, the General Assembly
enacted R.C. 2743.01 to 2743.20 for the purpose of waiving the state’s sovereign
immunity from liability and permitting suits against the state to be brought in this
court. Am.Sub.H.B. No. 800, 135 Ohio Laws, Part II, 869.            As originally enacted,
R.C. 2743.02(B) provided: “Awards against the state shall be reduced by the aggregate
of insurance proceeds, disability award, or other collateral recovery by the claimant.”
Id. at 872.     In a summary of Am.H.B. No. 800, the Ohio Legislative Service
Commission (LSC) stated, “Any award to a successful claimant against the state must
be reduced * * * by the amount of insurance the claimant receives.” Summary of 1974
Enactments: January-July, 110th General Assembly, Ohio Legislative Service
Commission (July 1974). Thus, as understood by the LSC, if a claimant successfully
recovered an award against the state, the amount of insurance a claimant received was
intended to be applied to reduce the award against the state.
       {¶21} In Am.Sub.H.B. No. 800 the General Assembly, however, did not define the
term “other collateral recovery.” See Am.Sub.H.B. No 800, 135 Ohio Laws, Part II, at
871-872.      And in subsequent legislation wherein the General Assembly enacted
definitions for use in R.C. Chapter 2743 the General Assembly has not defined the term
“other collateral recovery.”   See Sub.H.B. No 82, 136 Ohio Laws, Part I, 1504;
Case No. 2013-00452JD                     -11-                                DECISION


Am.Sub.S.B. No. 76, 138 Ohio Laws, Part I, 266; 289, and Sub.H.B. No. 316, 150 Ohio
Laws, Part IV, 5438, 5444.
       {¶22} The General Assembly’s failure to define the term “other collateral
recovery” has left this term open to various interpretations, thereby creating an
ambiguity as to its meaning. See Caldwell v. State, 115 Ohio St. 458, 460, 154 N.E.
792 (1926) (“[a]n ambiguity is defined as doubtfulness or uncertainty; language which is
open to various interpretations or having a double meaning; language which is obscure
or equivocal”). R.C. 1.49 pertains to ambiguous statutes, providing: “If a statute is
ambiguous, the court, in determining the intention of the legislature, may consider
among other matters: (A) The object sought to be attained; (B) The circumstances
under which the statute was enacted; (C) The legislative history; (D) The common law
or former statutory provisions, including laws upon the same or similar subjects; (E) The
consequences of a particular construction; (F) The administrative construction of the
statute.”   And R.C. 1.42 directs: “Words and phrases shall be read in context and
construed according to the rules of grammar and common usage. Words and phrases
that have acquired a technical or particular meaning, whether by legislative definition or
otherwise, shall be construed accordingly.”
       {¶23} In common usage, the term “collateral” means “[s]upplementary;
accompanying, but secondary and subordinate to,” Black’s Law Dictionary 317 (10th
Ed.2014), and the term “recovery” means the “obtainment of a right to something * * *.”
Black’s Law Dictionary at 1466. When the General Assembly originally enacted R.C.
2743.02, see former R.C. 2743.02(B), see also Am.Sub.H.B. No. 800, 135 Ohio Laws,
Part II, 869, 872, the term “other collateral recovery” followed the terms “insurance
proceeds” and “disability award,” which are a particular class of objects having well-
known characteristics, thereby implicating the canon of statutory construction known as
ejusdem generis. As explained by the Ohio Supreme Court:
Case No. 2013-00452JD                     -12-                               DECISION


       A well-known legal maxim is ‘ejusdem generis,’ which literally translated
       means ‘of the same kind or species.’ So, where in a statute terms are first
       used which are confined to a particular class of objects having well-known
       and definite features and characteristics, and then afterwards a term is
       conjoined having perhaps a broader signification, such latter term is, as
       indicative of legislative intent, to be considered as embracing only things
       of a similar character as those comprehended by the preceding limited
       and confined terms.

State v. Aspell, 10 Ohio St.2d 1, 4, 225 N.E.2d 226 (1967). And as further explained by
the Ohio Supreme Court: “Under the canon of statutory construction commonly referred
to as ejusdem generis (literally ‘of the same kind’), whenever words of general meaning
follow the enumeration of a particular class, then the general words are to be construed
as limited to those things which pertain to the particularly enumerated class.” Akron
Home Med. Servs., Inc. v. Lindley, 25 Ohio St.3d 107, 109, 495 N.E.2d 417 (1986).
Application of the statutory construction canon of ejusdem generis to the statute
compels a conclusion that, in determining that awards against the state should be
reduced, the General Assembly originally intended that the term “other collateral
recovery” should refer to items that pertain to the particularly enumerated class, e.g.,
insurance proceeds and disability awards. Stated differently, the term “other collateral
recovery” should be interpreted to refer to items that are akin to insurance proceeds and
disability awards.
       {¶24} Subsequent versions of the statute, have retained the terms “insurance
proceeds,” “disability award,” and “other collateral recovery.”       See Am.Sub.H.B.
No. 682, 136 Ohio Laws, Part II, 2809, 2823; Am.Sub.H.B. No. 1192, 136 Ohio Laws,
Part II, 3591, 3592; Sub.H.B. No. 82, 136 Ohio Laws, Part I, 1504, 1506; Am.Sub.H.B.
No. 149, 137 Ohio Laws, Part I, 1950, 1951; Am.Sub.S.B. No. 76, 138 Ohio Laws,
Part I, 266, 280; Sub.H.B. No. 267, 142 Ohio Laws, Part II, 3134, 3135; Am.Sub.H.B.
No. 111, 143 Ohio Laws, Part II, 2351, 2415; Sub.S.B. No. 172, 145 Ohio Laws, Part I,
1821, 1824; Am.Sub.S.B. No. 115, 149 Ohio Laws, Part II, 3231, 3238; Am.Sub.S.B.
Case No. 2013-00452JD                     -13-                                 DECISION


No. 281, 149 Ohio Laws, Part II, 3791, 3839; Am.Sub.H.B. No. 95, 150 Ohio Laws,
Part I, 396, 847; Sub.S.B. No. 316, 150 Ohio Laws, Part, IV, 5438, 5446; Sub.H.B.
No. 25, 151 Ohio Laws, Part II, 2784, 2787; (2012) Am.Sub.H.B. No. 487, 129th G.A.,
http://archives.legislature.state.oh.us/BillText129/129_HB_487_EN_N.html        (accessed
2/12/2018).
      {¶25} Former R.C. 2743.02(B) is now codified in division (D) of R.C. 2743.02.
R.C. 2743.02(D) provides:

             Recoveries against the state shall be reduced by the aggregate of
      insurance proceeds, disability award, or other collateral recovery received
      by the claimant. This division does not apply to civil actions in the court of
      claims against a state university or college under the circumstances
      described in section 3345.40 of the Revised Code. The collateral benefits
      provisions of division (B)(2) of that section apply under those
      circumstances.

(Emphasis added.)      Since the General Assembly retained the terms “insurance
proceeds,” “disability award,” and “other collateral recovery” in R.C. 2743.02(D), it is
reasonable to conclude that the General Assembly still intends that the term “other
collateral recovery” should be interpreted to refer to items that are akin to insurance
proceeds and disability awards. Accord Buchman v. Bd. of Edn., 73 Ohio St.3d 260,
265, 652 N.E.2d 952 (1995) (holding that Social Security and Medicare benefits are the
type of collateral source benefits contemplated by R.C. 2744.05(B)”). But see Adae v.
State, 10th Dist. Franklin No. 12AP-406, 2013-Ohio-23, ¶ 18, fn. 3 (“currently
R.C. 2743.02(D), more broadly states that awards against the state ‘shall be reduced by
the aggregate of insurance proceeds, disability award, or other collateral recovery
received by the claimant’”). And, according to R.C. 2743.02(D), such other collateral
recovery received by a claimant should be applied to reduce a recovery against the
state. Compare Black’s Law Dictionary, supra, at 319 (defining “collateral-sources rule”
as “[t]he doctrine that if an injured party receives compensation for the injuries from a
source independent of the tortfeasor, the payment should not be deducted from the
Case No. 2013-00452JD                       -14-                                 DECISION


damages that the tortfeasor must pay”); 3 Dobbs, Hayden, & Bublick, The Law of Torts,
Section 482, 25 (2d Ed.2011) (“The traditional rule is that compensation from ‘collateral
sources’ is none of the defendant’s business and does not go to reduce the defendant’s
obligation to pay damages, either in negligence or in strict liability cases” (footnotes
omitted)).

       2. Precedent of the Tenth District Court of Appeals discussing the offset
          for collateral recovery under R.C. 2743.02(D) indicates that
          R.C. 2743.02(D) should be interpreted to contain a “matching”
          requirement.
       {¶26} The Tenth District Court of Appeals is the court of appeals to which
appeals from this court generally lie. See R.C. 2743.20 and 2501.01. Determinations
from the Tenth District Court of Appeals discussing the offset for collateral recovery
under R.C. 2743.02(D) constitute precedent that this court is required to follow. See
Black’s Law Dictionary 1366 (10th Ed. 2014) (defining “binding precedent” as a
“precedent that a court must follow”).
       {¶27} Since 1975, when the General Assembly enacted R.C. 2743.02, the Tenth
District Court of Appeals has construed the term “other collateral recovery” to have a
particular meaning. For example, in 1996 in Van Der Veer v. Ohio Dept. of Transp., 113
Ohio App.3d 60, 68-69, 680 N.E.2d 230 (10th Dist.1996), overruled in part on other
grounds by McMullen v. Ohio State Univ. Hosp., 10th Dist. Franklin No. 97API10-1301,
No. 97API10-1324, 1998 Ohio App. LEXIS 4436 (Sep. 22, 1998), the Tenth District
Court of Appeals examined whether this court erred when it concluded that life
insurance proceeds received by reason of a wrongful death were “collateral sources”
within the meaning of R.C. 2743.02(D). The Van Der Veer court stated that

       the burden of proving that one is entitled to an offset for collateral benefits
       is on the defendant, which is the state in this case. Cf. Buchman, supra
       (construing R.C. 2744.05[B] which provided for reducing a judgment
       against a political subdivision by the amount of collateral benefits received
       by a claimant). In Buchman, the Ohio Supreme Court also found that a
Case No. 2013-00452JD                      -15-                                 DECISION


      collateral benefit could only be deducted from the jury’s award if some
      portion of that jury award corresponded to the collateral benefit. Thus,
      where the children of a decedent had received social security benefits, but
      no part of the jury’s verdict was awarded to decedent’s children, the court
      refused to offset the verdict by the social security benefits that the children
      had received. Buchman, supra, 73 Ohio St. 3d at 265. As noted by the
      Buchman court:

             “* * * Although Morris and Sorrell evince a certain amount of
             tension on the court over the viability of collateral benefit
             offset statutes, the one inexorable source of agreement
             seems to be that there shall be no constitutionality without a
             requirement that deductible benefits be matched to those
             losses actually awarded by the jury.” (Emphasis added.) Id.
             at 269.

      See, also, Freeman v. University of Cincinnati (1989), Ohio Ct.Cl. No. 87-
      07908, unreported.

And two years later in McMullen, 10th Dist. Franklin No. 97API10-1301, No. 97API10-
1324, 1998 Ohio App. LEXIS 4436, at *29-31 (Sep. 22, 1998), rev’d, 88 Ohio St.3d 332,
725 N.E.2d 1117 (2000), the Tenth District Court of Appeals stated:

      Although the legislative intent behind both R.C. 2743.02(D) and
      3345.40(B)(2) appears to have been that the aggregate of all collateral
      benefits received by a claimant, or plaintiff, or, in the case of a wrongful
      death action, the beneficiaries who the claimant or plaintiff represent, be
      deducted from the aggregate damage award, the Ohio Supreme Court
      has clearly disallowed such an approach. Buchman v. Wayne Trace Local
      School Dist. Bd. of Edn. (1995), 73 Ohio St. 3d 260, 266-269, 652 N.E.2d
      952.

      In Buchman, the Supreme Court was faced with a claim that
      R.C. 2744.05(B), the collateral offset provision applicable to suits against
      political subdivisions, violated Section 16, Article I of the Ohio Constitution
      (due process) in that it called for damages awarded against a political
      subdivision to be offset by the aggregate of collateral benefits received by
      the claimant. In addressing this claim, the Supreme Court held that in
      order for a collateral offset statute to comport with state due process
      requirements, the statute may permit collateral benefits to be deducted
Case No. 2013-00452JD                      -16-                                 DECISION


       from a damage award “only to the extent that the loss for which [the
       collateral benefits] [compensate] is actually included in the [damage]
       award,” a concept which the court referred to as “matching.” Id. at 269.
       Applying the “matching” requirement to the statute before it, the Buchman
       court concluded that R.C. 2744.05(B) was capable of a construction which
       would permit “matching,” and thereby avoided holding the statute
       unconstitutional. Because the language of R.C. 2744.05(B) is virtually
       identical to that of R.C. 3345.05(B)(2), we hold that it is also capable of
       being construed to permit “matching.”

       Less than a year after Buchman was decided, this court applied the
       “matching” requirement to R.C. 2743.02(D) in Van Der Veer, supra. * * *.

And in 1998 in Nevins v. Ohio Dept. of Transp., 132 Ohio App.3d 6, 22, 724 N.E.2d 433
(10th Dist.1998), the Tenth District Court of Appeals construed R.C. 2743.02(D), stating:

       R.C. 2743.02(D) provides in part that “recoveries against the state shall be
       reduced by the aggregate of insurance proceeds, disability award, or other
       collateral recovery received by the claimant.” Black’s Law Dictionary
       (6 Ed.1991) 179, defines the term collateral to mean additional,
       supplementary, complementary or accompanying as a coordinate. The
       Ohio Supreme Court has held that a collateral benefit is deductible as a
       setoff only to the extent that the loss for which it collaterally compensates
       is included in the award. Buchman v. Wayne Trace Local School Dist. Bd.
       of Edn. (1995), 73 Ohio St. 3d 260, 652 N.E.2d 952. A deductible benefit
       must be matched to the award for which setoff is sought. Van Der Veer v.
       Ohio Dept. of Transp. (1996), 113 Ohio App. 3d 60, 69, 680 N.E.2d 230.
       See, also, Cincinnati Ins., supra. In other words, a collateral source benefit
       is one that is in excess of one hundred percent of the total damages
       awarded to the plaintiff.

Taken together, Van Der Veer, McMullen, and Nevins indicate that R.C. 2743.02(D)
should be interpreted to contain a “matching” requirement, which means that this court
should deduct collateral benefits from a recovery against the state only to the extent that
the loss for which the collateral benefits compensate is actually included in the damage
award. See McMullen, supra. Accord Buchman v. Bd. of Edn., 73 Ohio St.3d 260, 269,
1995-Ohio-136, 652 N.E.2d 952 (1995) (holding that under R.C. 2744.05(B), a collateral
Case No. 2013-00452JD                       -17-                               DECISION


benefit “is deductible only to the extent that the loss for which it compensates is
actually included in the jury’s award”). It follows therefore that, if a collateral benefit
does not compensate for a loss that is actually included in the damage award, then,
based on Van Der Veer, McMullen, and Nevins, such a collateral benefit should not be
deducted from a recovery against the state pursuant to R.C. 2743.02(D).

       3. The magistrate properly concluded that a payment to Zavinski in the
          amount of $885,000 in uninsured motorist proceeds should be applied
          to reduce Zavinski’s recovery against ODOT.
       {¶28} By her first objection, Zavinski asserts that the magistrate improperly found
that $885,000 in uninsured motorist proceeds constituted a “collateral benefit.” Zavinski
contends that the payment of $885,000 “was in settlement of Plaintiff’s claims against
the tortfeasors Pamphley and his employer J.R. Trucking Co. for Pamphley’s
negligence that contributed to the wrongful death of Dennis Zavinski on September 10,
2011. That payment of $885,000 by the uninsured motorist carriers was made solely
because of the negligence of Pamphley. Plaintiff did not receive $885,000 from the
uninsured motorist carriers simply because Mr. Zavinski died.” (Objections, 3.) For its
part, ODOT contends that “[i]t is undisputed that Mrs. Zavinski received $885,000 in
insurance proceeds as a result of her husband being killed by an uninsured motorist.
Since insurance money is specifically recognized by the statute as a collateral source
set-off, Plaintiff’s award must be reduced by this collateral recovery.”
       {¶29} Zavinski’s first objection challenges the magistrate’s application of
R.C. 2743.02(D), which provides: “Recoveries against the state shall be reduced by the
aggregate of insurance proceeds, disability award, or other collateral recovery received
by the claimant. * * *.” On its face, R.C. 2743.02(D) requires that insurance proceeds
received by a claimant—from any source—are to be applied against a recovery against
the state.   But, notwithstanding the plain language of R.C. 2743.02(D), in 1998 in
Nevins the Tenth District Court of Appeals indicated that former R.C. 2743.02(D) should
Case No. 2013-00452JD                       -18-                                      DECISION


be interpreted to contain a matching requirement. See Nevins, supra, at 22 (stating that
“[a] deductible benefit must be matched to the award for which setoff is sought”). Here,
because the payment arising from uninsured motorist coverage is related to ODOT’s
joint tortfeasor’s conduct, Nevins arguably could be interpreted to mean that the
payment of $885,000 in uninsured motorist proceeds should be matched to the award
against the joint tortfeasor in this case. And, if this interpretation were to be followed in
this case, the payment of $885,000 in uninsured motorist proceeds should not be
applied to reduce the award of recovery against ODOT. Alternatively, Nevins arguably
could be interpreted to mean that in this instance the payment of $885,000 in uninsured
motorist proceeds is a collateral source benefit because the loss for which it collaterally
compensates, e.g., the death of Dennis Zavinski, is included in the award against
ODOT. The holding of Nevins as applied to the facts of this case is indeterminate.
       {¶30} Notably, since the Tenth District Court of Appeals issued Nevins, the
General Assembly has amended R.C. 2743.02.                 And in the General Assembly’s
most recent amendment of R.C. 2743.02, the General Assembly has retained
language that states that recoveries against the state “shall be reduced by
the   aggregate    of   insurance proceeds,        disability   award,   or   other    collateral
recovery received by the claimant.”         (2012) Am.Sub.H.B. No. 487, 129th G.A.,
http://archives.legislature.state.oh.us/BillText129/129_HB_487_EN_N.html              (accessed
2/12/2018). Thus, the General Assembly, in its role as the final arbiter of public policy,
has indicated that insurance proceeds—from whatever source—shall be applied to
reduce a recovery against the state.
       {¶31} The Ohio Supreme Court has held that “the intent of the law-makers is to
be sought first of all in the language employed, and if the words be free from ambiguity
and doubt, and express plainly, clearly and distinctly, the sense of the law-making body,
there is no occasion to resort to other means of interpretation. The question is not what
did the general assembly intend to enact, but what is the meaning of that which it did
Case No. 2013-00452JD                       -19-                               DECISION


enact. That body should be held to mean what it has plainly expressed, and hence no
room is left for construction.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902),
paragraph two of the syllabus. Accord Probasco v. Raine, 50 Ohio St. 378, 391, 34
N.E. 536 (1893) (“When the legislature is silent, the courts may declare the public
policy, and mark out the lines of natural justice; but when the legislature has spoken,
within the powers conferred by the constitution, its duly enacted statutes form the public
policy, and prescribe the rights of the people, and such statutes must be enforced, and
not nullified, by the judicial and executive departments of the state”).
       {¶32} Accordingly, because Nevins could be construed in a manner so as to
support the reduction of the recovery against ODOT by $885,000 in uninsured motorist
proceeds and because R.C. 2743.02(D), as most recently enacted, expressly includes
the term “insurance proceeds,” the court determines that the magistrate properly
concluded that a payment to Zavinski in the amount of $885,000 in uninsured motorist
proceeds should be applied to reduce Zavinski’s recovery against ODOT. The court
further determines that Zavinski’s first objection should be overruled.

       4. The magistrate improperly determined that payment of one-half interest
          in Zavinski’s deceased husband’s law firm and fees from her deceased
          husband’s law practice should be applied to reduce Zavinski’s recovery
          against ODOT.
       {¶33} By her second objection, Zavinski contends that the magistrate “improperly
determined that the payment made to the estate of Dennis Zavinski in the amount of
$125,000, representing one-half of his interest in his law firm, was a ‘collateral benefit’
and improperly deducted $125,000 from the amount due and owing from ODOT.” And
by her third objection, Zavinski asserts that the magistrate “improperly determined the
sum of $33,475.28, representing fees due and payable to Dennis Zavinski, deceased,
from his practice of law prior to his death on September 10, 2011, was a ‘collateral
benefit’ and improperly deducted $33,475.28.” The court is persuaded that, based on
Case No. 2013-00452JD                     -20-                                 DECISION


Nevins, supra, the magistrate improperly deducted the amounts of $125,000 and
$33,475.28 from the award of recovery against ODOT.
      {¶34} In Nevins, in a case removed to this court, a jury found Concrete
Construction Company (Concrete) liable to the plaintiffs and awarded damages in the
amount of $1,654,417.62. In a companion case, this court found ODOT liable, and
awarded the plaintiffs $1,570,000 in damages against ODOT. This award was adjusted
to reflect an offset due to the contributory negligence of one of the plaintiffs. Final
judgments were entered in the two cases, and consolidated appeals followed.            On
appeal, ODOT asserted that this court failed to deduct collateral sources pursuant to
R.C. 2743.02(D). The appellate court overruled ODOT’s assignment of error, stating:

             As noted by the trial court, the damages awarded against Concrete
      were not supplemental to those awarded against ODOT. Rather, the
      damages constituted Concrete’s proportionate share of the Nevins’ entire
      damage award. The Nevins’ damages attributable to Concrete are,
      therefore, not collateral to or additional to ODOT’s share, but are part of
      the primary damages awarded to the Nevins. The damages awarded
      against Concrete make up their share of the one hundred percent total
      damages awarded to the Nevins, and are not a collateral source under
      R.C. 2743.02(D). Therefore, the trial court did not err in refusing to set off
      ODOT’s damages against those of Concrete.

Nevins at 22.

      {¶35} Here, applying the reasoning of Nevins, the court concludes that the sum of
$125,000, representing one-half of his interest in Dennis Zavinski’s law firm and the
sum of $33,475.28, representing fees earned by Dennis Zavinski before he died, are not
collateral to or additional to damages attributable to ODOT’s share of apportioned
damages. The court further concludes that the magistrate erred in determining that the
sums of $125,000 and $33,475.28 constituted “other collateral recovery” and should be
applied to reduce the award against ODOT.          The court determines that Zavinski’s
second and third objections should be sustained.
Case No. 2013-00452JD                        -21-                                  DECISION



       5. The award against ODOT in the amount $1,489,261 should be reduced to
           $354,286.
       {¶36} By her fourth objection, Zavinski contends that the magistrate improperly
deducted the total sum of $1,043,475.28 ($885,000 + $125,000 + $33,475.28) from the
amount due from ODOT.           Zavinski maintains that “judgment against ODOT, after
deducting the only legitimate collateral benefit ($250,000 recovered from Karvo Paving,
ODOT’s contractor on the St. Rt. 14 project, from a lawsuit filed in the Court of Common
Pleas of Summit County), should have been in the amount of $1,279,000.” (Objections,
at 10.)    But see Objections at 2, footnote 1 (“Plaintiff respectfully submits, that for
reasons that follow, the proper sum due and owing to Plaintiff from ODOT is
$1,239,286, plus the filing fee based upon the Magistrate’s Decision filed on January 5,
2018”).
       {¶37} The court has determined that the magistrate properly determined that
$885,000 in uninsured motorist proceeds should be applied to reduce the recovery
against ODOT in this case and that the magistrate improperly determined that $125,000
(one-half interest in Dennis Zavinski’s law practice) and $33,475.28 (fees earned by
Dennis Zavinski) should have been applied to reduce Zavinski’s recovery against
ODOT. Since Zavinski concedes that the amount of $250,000 properly is a “legitimate
collateral benefit,” it follows that the “other collateral recovery” in this case should be:

            $885,000 (uninsured motorist coverage payment)
          + $250,000 (amount recovered from Karvo paving)
           $1,135,000


Having concluded that the “other collateral recovery” in this case amounts to
$1,135,000, an award of damages against ODOT should be apportioned as follows:

           $1,489,261 (damages attributable to ODOT’s negligence less 50%
Case No. 2013-00452JD                       -22-                                DECISION


                        attributable to joint tortfeasor’s negligence)
         - $1,135,000
             $354,261
         +        $25 (filing fee)
             $354,286 (total damages attributable to ODOT’s negligence, less collateral
                      recovery, plus $25 filing fee)

The court overrules in part and sustains in part Zavinski’s fourth objection.

   III. Conclusion
       {¶38} Accordingly, for reasons set forth above, the court determines that
Zavinski’s first objection should be overruled, that Zavinski’s second objection should be
sustained, that Zavinski’s third objection should be sustained, that Zavinski’s fourth
objection should be overruled in part and sustained in part, and that Zavinski’s fifth
objection should be overruled. The court also determines that ODOT’s objection should
be overruled. The court further determines that the magistrate’s decision should be
modified, that the magistrate’s findings of fact contained in the decision should be
adopted, and that the magistrate’s conclusions of law should be modified, as set forth
above.




                                            PATRICK M. MCGRATH
                                            Judge
[Cite as Zavinski v. Dept. of Transp., 2018-Ohio-1503.]



MONIQUE ZAVINSKI                                          Case No. 2013-00452JD

        Plaintiff                                         Judge Patrick M. McGrath

        v.                                                JUDGMENT ENTRY

OHIO DEPARTMENT OF
TRANSPORTATION

        Defendant



        {¶39} For the reasons set forth in the decision filed concurrently herewith, and
upon independent review, the court MODIFIES Magistrate Renick’s decision of January
4, 2018, ADOPTS Magistrate Renick’s findings of fact contained in his decision, and
MODIFIES Magistrate Renick’s conclusions of law contained in the decision. Zavinski
is entitled to monetary damages for her wrongful death claim in the amount of $354,286,
which represents total damages in the amount of $1,489,261 less collateral recovery in
the amount of $1,135.000, plus the $25 filing fee.
        {¶40} The court OVERRULES plaintiff Monique Zavinski’s first objection,
SUSTAINS Zavinski’s second and third objections, OVERRULES IN PART and
SUSTAINS IN PART Zavinski’s fourth objection, and OVERRULES Zavinski’s fifth
objection.     The court OVERRULES defendant Ohio Department of Transportation’s
objection. Judgment is rendered in favor of plaintiff Monique Zavinski. Court costs are
assessed against defendant Ohio Department of Transportation. The clerk shall serve
upon all parties notice of this judgment and its date of entry upon the journal.




                                                     PATRICK M. MCGRATH
                                                     Judge
Case No. 2013-00452JD             -24-                     DECISION


cc:

William C Becker                     Orville L Reed III
Stacy L Hannan                       3475 Ridgewood Road
Assistant Attorneys General          Akron OH 44333
150 East Gay Street 18th Floor
Columbus OH 43215-3130

Dennis J Bartek
Natalie M Niese
2300 East Market Street Suite E
Akron OH 44312
Filed March 27, 2018
Sent to S.C. Reporter 4/19/18
