[Cite as State Farm Mut. Auto. Ins. Co. v. Williams, 2013-Ohio-3884.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE FARM MUTUAL                                     :    JUDGES:
AUTOMOBILE INSURANCE                                  :
COMPANY                                               :
                                                      :    Hon. W. Scott Gwin, P.J.
                                                      :    Hon. Patricia A. Delaney, J.
       Plaintiff-Appellee                             :    Hon. Craig R. Baldwin, J.
                                                      :
-vs-                                                  :
                                                      :    Case No. 13-CA-04
                                                      :
BERNARD R. WILLIAMS                                   :
                                                      :
                                                      :
       Defendant-Appellant                            :    OPINION


CHARACTER OF PROCEEDING:                                   Appeal from the Licking County Court of
                                                           Common Pleas, Case No. 2010 CV
                                                           01160



JUDGMENT:                                                  AFFIRMED



DATE OF JUDGMENT ENTRY:                                    September 4, 2013



APPEARANCES:

For Plaintiff-Appellant:                                   For Defendant-Appellee:

ROGER H. WILLIAMS                                          STEPHEN J. ZEEHANDELAR
425 W. Schrock Rd., Suite 201                              ALESSANDRO SABATINO, JR.
Westerville, OH 43081                                      BRITTANY M. HENSLEY
                                                           471 E. Broad St., Suite 1500
                                                           Columbus, OH 43215
Licking County, Case No. 13-CA-04                                                       2

Delaney, J.

       {¶1} Defendant-Appellant Bernard R. Williams appeals the December 11, 2012

judgment entry of the Licking County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On August 13, 2008, Janet Starner was involved in a motor vehicle

accident with Defendant-Appellant Bernard R. Williams in Licking County, Ohio.

Williams rear-ended Starner’s vehicle while Starner’s vehicle was stopped in traffic. At

the time of the accident, Starner was the named insured under an automobile insurance

policy issued by Plaintiff-Appellee State Farm Mutual Automobile Insurance Company.

Starner filed a claim through her uninsured/underinsured motorists coverage for her

medical bills, pain and suffering, and other related damages from the automobile

accident. State Farm paid Starner’s UM/UIM claim in the amount of $100,000.00.

       {¶3} State Farm filed a complaint for subrogation in the Licking County Court of

Common Pleas on July 26, 2010.         In its complaint, State Farm sought to recover

$100,000.00 from Williams for payments made by State Farm to and/or on Starner’s

behalf pursuant to the UM/UIM provision of Starner’s automobile insurance policy.

       {¶4} The matter was tried before a jury on November 27 and 28, 2012.

       {¶5} During State Farm’s case, State Farm moved for a mistrial based on

references made by Williams’s counsel as to Williams’s insurance coverage and his

exposure. The trial court agreed the issue of Williams’s insurance coverage should not

be raised, but also found State Farm had failed to object to the mention of Williams’s

insurance coverage. It denied the motion for mistrial. The trial court instructed the jury
Licking County, Case No. 13-CA-04                                                        3


to disregard any questions, evidence, or testimony it may have heard regarding any

insurance of Williams.

       {¶6} At the close of State Farm’s case in chief, Williams moved for directed

verdict. Williams argued State Farm failed to establish it had standing to pursue the

claim because the evidence did not show Starner assigned her rights or claim to State

Farm. The trial court denied the motion. Williams renewed his motion at the close of all

evidence. The trial court again denied William’s motion for directed verdict.

       {¶7} At the close of evidence, State Farm moved for a directed verdict on the

issue of William’s negligence. The trial court granted the motion.

       {¶8} The trial court read the jury instructions to the jury. Two verdict forms and

two interrogatories were given to the jury. One verdict form stated, “WE, THE JURY,

DO HEREBY FIND IN FAVOR OF DEFENDANT. (at least six (6) jurors must sign).”

The second verdict form read, “WE, THE JURY, DO HEREBY FIND IN FAVOR OF

PLAINTIFF, and we find the total amount of compensatory damages Plaintiff is entitled

to recover is $ _______. (at least six (6) jurors must sign).” Interrogatory A stated:

       Was the Defendant’s negligence a direct and proximate cause of any

       injury to Plaintiff’s insured?

       Circle your answer in ink: YES or NO

       (1) If the answer of (six) (three-fourths) or more jurors to (A) is “yes,” move

       to Interrogatory (B).

       (2) If the answer of (six) (three-fourths) or more jurors to (A) is “no,” sign

       the general verdict for the Defendant and report to the court that you have

       completed your deliberations.
Licking County, Case No. 13-CA-04                                                            4


       (3) If (six) (three-fourths) jurors cannot agree on an answer to

       Interrogatory (A), report this to the court.

Interrogatory B stated:

       State the total amount of compensatory damages to the Plaintiff’s insured.

       Wages, salaries, or other compensation (economic loss) $ ____

       Expenses for medical care or treatment (economic loss) $ ____

       Pain and suffering, disfigurement, mental anguish, or

       Other intangible loss (non-economic loss) $_____

When the trial court read the jury instructions, the trial court did not give directions to the

jury as to the verdict forms or interrogatories.

       {¶9} After deliberation, the jury signaled it had reached a verdict. The trial

court discovered the jury filled out one verdict form for a party, but did not fill out the

interrogatories. The trial court stated, “You need to answer the interrogatories in order.

Interrogatory A will then instruct you how to fill out your verdict forms. So follow that

and you’ll be set.” (T. 281).

       {¶10} The jury returned to deliberation and then signaled they reached a verdict.

In open court, the trial court read the verdict. On Interrogatory A, the jury circled “yes”

to find that Williams’s negligence was a direct and proximate cause of any injury to

State Farm’s insured. Six jurors signed Interrogatory A. On Interrogatory B, the jurors

stated they awarded State Farm zero dollars of compensatory damages and six jurors

signed Interrogatory B. The six jurors who signed Interrogatory A were not the same six

jurors who signed Interrogatory B.
Licking County, Case No. 13-CA-04                                                       5


       {¶11} The two verdict forms were also signed by six jurors. In so signing both

verdict forms, the jury found in favor of Williams and found in favor of State Farm, but

awarded State Farm zero dollars in compensatory damages. However, the same six

jurors did not sign both verdict forms -- one different juror signed each verdict form.

After reading the verdicts, the judge sent the jurors to the jury room. (T. 282-284).

       {¶12} In open court, the judge and counsel discussed the verdict forms and

interrogatories:

       THE COURT: Do you want to look at the verdict forms? I didn’t check to

       see who signed which or try to figure out if –

       MR. WILLIAMS [Defense Counsel]: Yeah. That’s what I was thinking.

       THE COURT: -- the same people signed each one or not.

       MR. WILLIAMS: Six out of eight on one of them.

       THE COURT: Yeah, just looks like six, but I don’t know if it was the same

       six or anything. It doesn’t look like they followed the instructions on the

       first interrogatory very well.

       ***

       THE COURT: My question to you is what do you want to do with this right

       now? I’m open to suggestion.

       MR. KAPLAN [Plaintiff Counsel]: Obviously, Your Honor, we didn’t see the

       first set of forms that came out.

       THE COURT: Right

       MR. KAPLAN: I don’t know how consistent these are with the first set of

       forms.
Licking County, Case No. 13-CA-04                                                    6


      THE COURT: Well, they had only signed one the first time, so they’ve

      signed three more now.

      ***

      MR. KAPLAN: I hate to say it, but it almost seems a mistrial. We’ve got

      jurors signing –

      THE COURT: You can certainly make that argument, there’s no doubt

      about it.

      MR. KAPLAN: We’ve got jurors signing in favor of Plaintiff, and then on

      the same jury form signing in favor of Defendant.

      THE COURT: I agree.

      MR. KAPLAN: I’m sorry. I’ll have to move for a mistrial; conflicting verdict

      forms after Round 2.

(T. 284-286).

      {¶13} The judge and counsel then held a discussion off the record. The judge

went back on the record:

       We’re here present in open court. Present is counsel. This is Case No.

      2010 CV 1160. The jury has returned verdicts which are, as the Court

      read, in favor of Plaintiff, in favor of Defendant, awarding no damages or

      finding no damages due.

      The Court will file stamp and journalize those at least to show that they –

      what were returned and keep them in the file, provide copies to counsel.

      I’ll expect counsel to file an appropriate motion within the correct time on
Licking County, Case No. 13-CA-04                                                         7


       what they’re – how they wish to proceed in light of the various findings the

       jury has made or not made.

       MR. WILLIAMS: Okay

       THE COURT: And then I’m going to go release the jurors and thank them,

       tell them they did the right thing somehow. Okay. With that, I think we’re

       done for today. Thank you, gentlemen.

(T. 286-287).

       {¶14} On December 5, 2012, Williams filed a Motion for Journalization of

Defense Verdict. State Farm filed a Motion for New Trial on December 10, 2012.

       {¶15} The trial court denied the motion for journalization of the defense verdict

and granted the motion for new trial. The trial court stated the basis for its decision as:

(1) the references to the insurance coverage of Williams during the trial; (2) the jury’s

verdict that the actions of Williams were the proximate cause of Starner’s injuries, but

the jury awarded no damages, leading the trial court to believe the jury decision was

done under the influence of prejudice due to references to Williams’s insurance

coverage; (3) the parties stipulated to Starner’s treatment at the hospital and the jury did

not award damages for treatment; and (4) the trial court failed to read the interrogatories

to the jury.

       {¶16} It is from this decision Williams now appeals.

                              ASSIGNMENTS OF ERROR

       {¶17} Williams raises three Assignments of Error:

       {¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

APPELLEE A NEW TRIAL CITING THE BASIS AS INCONSISTENT VERDICT FORMS
Licking County, Case No. 13-CA-04                                                     8


AND JURY INTERROGATORIES WHERE COUNSEL FOR PLAINTIFF FAILED TO

OBJECT PRIOR TO THE DISCHARGE OF THE JURY.

       {¶19} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN THE

DENIAL OF DEFENDANT’S MOTION FOR JOURNALIZATION OF DEFENSE

VERDICT.

       {¶20} “III. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S

MOTION FOR DIRECTED VERDICT BECAUSE PLAINTIFF STATE FARM FAILED TO

PRODUCE EVIDENCE THAT THEY HAD STANDING TO SEEK REIMBURSEMENT

FOR ALLEGED PAYMENTS MADE.”

                                       ANALYSIS

                                            I.

       {¶21} Williams argues in his first assignment of error the trial court abused its

discretion in granting State Farm’s motion for new trial because State Farm failed to

object to the inconsistent verdict forms and interrogatories before the trial court

discharged the jury. We disagree.

       {¶22} Our standard of review on a motion for new trial is abuse of discretion.

Civ.R. 59. In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary, or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). We

must look at the totality of the circumstances in the case sub judice, and determine

whether the trial court acted unreasonably, arbitrarily or unconscionably.

       {¶23} As partial basis for the motion for new trial, State Farm raised the

inconsistent verdict forms and interrogatories.
Licking County, Case No. 13-CA-04                                                       9


       {¶24} The underlying purpose of jury interrogatories is to “test the correctness of

a general verdict by eliciting from the jury its assessment of the determinative issues

presented by a given controversy in the context of evidence presented at trial.” Winegar

v. Creekside Crossing Homes Sales, 5th Dist. Coshocton No. 08CA001, 2008-Ohio-

5835, ¶ 27 citing Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 28 Ohio St.3d 333,

337, 504 N.E.2d 415 (1986). Civ.R. 49(B) provides, in relevant part: “When the general

verdict and the answers are consistent, the appropriate judgment upon the verdict and

answers [to written interrogatories] shall be entered pursuant to Rule 58. When one or

more of the answers is inconsistent with the general verdict, judgment may be entered

pursuant to Rule 58 in accordance with the answers, notwithstanding the general

verdict, or the court may return the jury for further consideration of its answers and

verdict or may order a new trial.”

       {¶25} An objection to inconsistent answers to jury interrogatories is waived

unless the objection is raised prior to the jury's discharge. Winegar, 2008-Ohio-5835, ¶

28 citing Cooper v. Metal Sales Mfg. Corp., 104 Ohio App.3d 34, 42, 660 N.E.2d 1245

(11th Dist.1995). See also, Napierala v. Szczublewski, 6th Dist. Lucas No. L-02-1025,

2002-Ohio-7109, at ¶ 17. This not only promotes the efficiency of trials, by permitting

an opportunity for the inconsistencies to be reconciled without the need for another trial

before a new trier of fact, but also prevents jury shopping by those who wait to object to

an alleged inconsistency until after the jury is discharged. Greynolds v. Kurman, 91

Ohio App.3d 389, 395, 632 N.E.2d 946 (9th Dist.1993); Napierala at ¶ 17. See Avondet

v. Blankstein, 118 Ohio App.3d 357, 369, 692 N.E.2d 1063 (8th Dist. 1997); Romp v.

Haig, 110 Ohio App.3d 643, 647, 675 N.E.2d 10 (1st Dist.1995). If an objection is timely
Licking County, Case No. 13-CA-04                                                    10


made, “then the trial judge has an opportunity to correct such inconsistency by: ‘1.

returning the jury for further consideration of its answer; 2. entering judgment in

accordance with the answer; or 3. ordering a new trial’.” Cooper, 104 Ohio App.3d at 42,

660 N.E.2d 1245, quoting Haehnlein v. Henry, 41 Ohio App.3d 233, 535 N.E.2d 343

(9th Dist.1987), paragraph one of the syllabus. See also Civ.R. 49(B).

      {¶26} In the present case, the judge read the general verdict and interrogatories

in open court. Once the verdicts were read, the judge sent the jurors back to the jury

room. Outside the presence of the jury and in open court, the parties then discussed

the implications of the general verdicts and interrogatories.    Relevant to Williams’s

assignment of error, counsel for State Farm stated:

      MR. KAPLAN: I hate to say it, but it almost seems a mistrial. We’ve got

      jurors signing –

      THE COURT: You can certainly make that argument, there’s no doubt

      about it.

      MR. KAPLAN: We’ve got jurors signing in favor of Plaintiff, and then on

      the same jury form signing in favor of Defendant.

      THE COURT: I agree.

      MR. KAPLAN: I’m sorry. I’ll have to move for a mistrial; conflicting verdict

      forms after Round 2.

(T. 284-286).

      {¶27} The judge and counsel then held a discussion off the record. The judge

went back on the record:
Licking County, Case No. 13-CA-04                                                           11


       We’re here present in open court. Present is counsel. This is Case No.

       2010 CV 1160. The jury has returned verdicts which are, as the Court

       read, in favor of Plaintiff, in favor of Defendant, awarding no damages or

       finding no damages due.

       The Court will file stamp and journalize those at least to show that they –

       what were returned and keep them in the file, provide copies to counsel.

       I’ll expect counsel to file an appropriate motion within the correct time on

       what they’re – how they wish to proceed in light of the various findings the

       jury has made or not made.

       MR. WILLIAMS: Okay

       THE COURT: And then I’m going to go release the jurors and thank them,

       tell them they did the right thing somehow. Okay. With that, I think we’re

       done for today. Thank you, gentlemen.

(T. 286-287).

       {¶28} In his response to the motion for new trial, Williams argued State Farm

failed to object to the verdict forms and interrogatories before the jury was discharged.

The trial court addressed Williams’s argument in its judgment entry granting the motion

for new trial, finding State Farm objected on the record and requested a mistrial before

the jury was discharged. Upon our review of the record, we agree with the trial court’s

finding. State Farm raised the issue to the trial court before the discharge of the jury.

       {¶29} The trial court had three options to reconcile the inconsistent verdict.

Instead of returning the jury for further consideration or entering judgment, the trial court
Licking County, Case No. 13-CA-04                                                        12


instructed the parties to file motions within the correct time on how the parties wished to

proceed based on the jury’s inconsistent findings.

       {¶30} Williams’s first assignment of error is overruled.

                                             II.

       {¶31} Williams argues in his second assignment of error the trial court erred

when it denied his motion for journalization of the defense verdict.         In his second

assignment of error, Williams raises the same arguments as in his first assignment of

error. He states that because State Farm failed to object to the inconsistent verdicts,

State Farm waived its arguments, thereby requiring the trial court to grant Williams’s

motion for journalization of the defense verdict.

       {¶32} Based on our findings in the first assignment of error, we overrule

Williams’s second assignment of error.

                                             III.

       {¶33} In his third assignment of error, Williams argues the trial court erred in

denying his motion for directed verdict. At the close of State Farm’s case in chief,

Williams moved for directed verdict. Williams argued State Farm failed to establish it

had standing to pursue the claim because the evidence did not show Starner assigned

her rights or claim to State Farm. The trial court denied the motion. It stated:

                The defense has moved for a directed verdict on the grounds that

       the Plaintiff has not established the right to subrogation, basically that they

       haven’t entered into the – haven’t shown a written contract, haven’t

       entered into evidence the policy, no written evidence of any subrogation

       right.
Licking County, Case No. 13-CA-04                                                      13


              Civil Rule 50, which deals with directed verdict, requires the Court

       to decide those issues construing the evidence in the light most favorable

       to the opposing party. On the basis of the testimony that the Starners

       were insured and the insurance policy granted them the right of

       subrogation under which they provided that payment and brought this suit,

       and only on that basis, I will overrule the motion for directed verdict made

       at the close of Plaintiff’s case.

(T. 220-221). Williams renewed his motion at the close of all evidence. The trial court

again denied William’s motion for directed verdict.

       {¶34} A trial court's decision on a motion for directed verdict presents a question

of law, which an appellate court reviews de novo. Groob v. Keybank, 108 Ohio St.3d

348, 2006–Ohio–1189, 843 N.E.2d 1170, ¶ 14. Civ. R. 50 provides for a motion for

directed verdict, which may be made at the opening statement of the opponent, at the

close of the opponent's evidence, or at the close of all the evidence. Upon receiving a

motion for directed verdict, the trial court must construe the evidence most strongly in

favor of the party against whom the motion is directed. See Civ. R. 50(A)(4). If the trial

court finds on any determinative issue reasonable minds could come but to one

conclusion on the evidence submitted, then the court shall sustain the motion and direct

the verdict as to that issue. A directed verdict is appropriate where a plaintiff fails to

present evidence from which reasonable minds could find in the plaintiff's favor. See

Hargrove v. Tanner, 66 Ohio App.3d 693, 586 N.E.2d 141 (9th Dist.1990).

       {¶35} State Farm brought its claim against Williams pursuant to a right of

subrogation under the terms of the automobile insurance policy issued by State Farm to
Licking County, Case No. 13-CA-04                                                        14


the Starners. At trial, Kirsten Elliot, a claim representative with State Farm, testified on

behalf of State Farm. She testified at the time of the accident, Janet Starner was a

named insured under an automobile insurance policy issued by State Farm. (T. 203).

The automobile insurance policy included uninsured/underinsured motorist coverage.

(T. 204).    State Farm paid Janet Starner $100,000.00 under the terms of the

uninsured/underinsured motorists coverage based on the August 13, 2008 automobile

accident. (T. 205). Plaintiff’s Exhibit 8, admitted into evidence, listed the payments

made to Janet Starner under the State Farm policy. (T. 205). Elliot testified the State

Farm policy under which the payments were made to Starner provided for a right of

subrogation. Id.

       {¶36} An insurer's right to be subrogated to the right of its insured arises either

from the right of conventional subrogation, that is subrogation by agreement of the

parties, or equitable subrogation by operation of law.       Conventional subrogation is

based on the contractual obligations of the parties. Blue Cross & Blue Shield Mut. of

Ohio v. Hrenko, 72 Ohio St.3d 120, 121, 647 N.E.2d 1358 (1995).                   Equitable

subrogation applies when one person is subrogated to certain rights of another so that

the person is substituted in the place of the other and succeeds to the rights of the

other. Ohio Dept. of Taxation v. Jones, 61 Ohio St.2d 99, 100–101, 15 O.O.3d 132, 399

N.E.2d 1215 (1980).

       {¶37} It has been held, pursuant to the doctrine of equitable subrogation, the

right of subrogation does not depend upon a subrogation agreement but upon the

relations of the parties. Travelers Indemn. Co. v. Brooks, 60 Ohio App.2d 37, 38-39,

395 N.E.2d 494 (1977). “It follows that an insurance company need not prove the
Licking County, Case No. 13-CA-04                                                     15


existence of a subrogation agreement in an action brought by the insurer and the

insured against a defendant wrongdoer for damages suffered by the insurer and

insured, and recovery may be had despite the lack of such proof, since the wrongdoer is

not prejudiced thereby.’” Warmack v. Arnold, 195 Ohio App.3d 760, 2011-Ohio-5463,

961 N.E.2d 1165, ¶ 17 (1st Dist.) quoting Brooks at 38–39, 395 N.E.2d 494.

       {¶38} Further, in Grange Mut. Cas. Co. v. King, 10th Dist. Franklin No. 82AP–

569, 1982 WL 4541 (Nov. 30, 1982), the court found Grange did not have to introduce

into evidence an insurance policy, an assignment, or a subrogation agreement to

demonstrate its right to recover from a tortfeasor who had damaged its insured's car.

Id. at 4. The court held that sufficient evidence of subrogation had been presented

through the testimony of its insured that he was insured by Grange, which had paid him

for the repair of his car, and through the testimony of a Grange representative as to the

existence of the policy and the amount of the repair bill. Id. at 3–4.

       {¶39} In this case, Starner testified she was insured by State Farm, to which she

submitted her claim. (T. 131). A State Farm representative testified the Starners were

named insureds under an automobile liability policy providing UM/UIM coverage.

Payments were made by State Farm to Janet Starner pursuant to the UM/UIM

coverage. The UM/UIM coverage provided a right of subrogation to State Farm. We

find the evidence in the present case supports the trial court’s decision to deny the

motion for directed verdict.

       {¶40} Williams’s third assignment of error is overruled.
Licking County, Case No. 13-CA-04                                                    16


                                    CONCLUSION

       {¶41} The three assignments of error of Defendant-Appellant Bernard R.

Williams are overruled.

       {¶42} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.



                                      HON. PATRICIA A. DELANEY




                                      HON. W. SCOTT GWIN



                                      HON. CRAIG R. BALDWIN


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