[Cite as Brummitt v. Seeholzer, 2015-Ohio-71.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


Bobby Brummitt, et al.                               Court of Appeals No. E-13-035

        Appellants                                   Trial Court No. 2011-CV-0626

v.

Dylan Seeholzer, et al.                              DECISION AND JUDGMENT

        Appellees                                    Decided: January 9, 2015


                                                 *****

        Florence J. Murray, and Dennis E. Murray, Sr., for appellants.

        Craig G. Pelini, for appellee, Ohio Mutual Insurance Group.

                                                 *****

        PIETRYKOWSKI, J.

        {¶ 1} Plaintiff-appellant, Bobby Brummitt, individually and as executor of the

Estate of Faye Brummitt (collectively referred to as appellants), appeal the May 23, 2013

judgment of the Erie County Court of Common Pleas which, following a jury trial,
entered judgment in favor of appellants for $316,108.82, plus interest and costs, as

damages following an auto collision. Appellants also appeal the trial court’s June 3, 2013

judgment denying their motion for a new trial or additur. For the reasons set forth herein,

we affirm.

         {¶ 2} On September 25, 2010, appellants and Bobby’s brother and sister-in-law,

Willard and Vicky Brummitt, were travelling northeast on State Route 412 in Sandusky

County, Ohio, when a vehicle operated by Dylan Seeholzer failed to stop at a stop sign

and collided with appellants’ vehicle. The vehicle flipped end over end coming to rest in

a bean field. The occupants all suffered serious injuries with Vicky’s being fatal.

         {¶ 3} Appellants’ injuries caused them to be transferred by air ambulance,

hospitalized for approximately three weeks, and then undergo months of rehabilitation.

Both wore cervical collars and Faye had surgery on her shoulder. Bobby had several

broken teeth and suffered from stress-induced severe hives for months. Six months

following the accident Faye was diagnosed with pancreatic cancer; she died one month

later.

         {¶ 4} On the date of the accident, Seeholzer was insured with an auto policy limit

of $25,000. Appellants had uninsured/underinsured (“UIM”) benefits through appellee,

Ohio Mutual Insurance Group (“OMIG’), with a $500,000 limit. This action commenced

on September 11, 2011, with appellants filing a complaint against the driver, Dylan

Seeholzer, for negligence, and a negligent entrustment claim against the owner of the

vehicle, Lorraine Keegan. Appellant Bobby also asserted a claim for loss of consortium



2.
against Seeholzer and Keegan. As to OMIG, appellants sought a declaratory judgment

that they were entitled to UIM and medical benefits and for recovery of such benefits as

determined by a jury. Appellants also alleged that OMIG failed to negotiate the payment

of UIM and medical benefits to appellants in good faith. Keegan was later voluntarily

dismissed from the action.

       {¶ 5} On December 4, 2012, appellants filed an amended complaint adding a

breach of contract claim against OMIG. In the interim, on November 2, 2012, OMIG

filed a motion to bifurcate and stay discovery as to the bad faith claim. Specifically,

OMIG requested that the issue of compensatory damages against Seeholzer be tried

separately from the bad faith claim because it would be prejudiced by the release of

privileged information, discoverable in the bad faith claim, while the underlying claim

was still pending. Appellants opposed the motion and filed a motion to compel the

discovery relating to the claims file. Appellants argued that OMIG failed to show how it

would be prejudiced by the production of the discovery and that, if bifurcation was

ordered, appellants desired that the bad faith claim be tried first. OMIG later argued that

the success of appellants’ bad faith claim was dependent on the success of their breach of

contract claim which, too, was required to be tried first.

       {¶ 6} On February 12, 2013, the court granted OMIG’s motion to bifurcate and

ordered that the damages issues be tried first with the bad faith claim “being tried shortly

thereafter.” As to the claims file, the court ordered that non-privileged items could be




3.
produced and that the determination as to which documents were discoverable would be

determined through an in camera inspection. Following the trial on damages, the

remaining documents could be produced.

       {¶ 7} Leading up to trial, various motions in limine were filed by the parties.

Appellants sought to prohibit OMIG’s introduction of expert evidence regarding the

reasonable value of medical services while OMIG sought to exclude evidence regarding

the unrelated losses of the other two occupants in the vehicle, testimony regarding the

causal relationship between the accident and Bobby’s diabetes and Faye’s ability to fight

pancreatic cancer, and evidence of contractual reductions. On April 24, 2013, the court

denied three of the motions and held in abeyance ruling on OMIG’s motion regarding

contractual reductions, or the amount accepted as full payment for the medical expenses.

The court noted that its decision would depend on OMIG’s approach (especially

regarding the use of expert testimony) at trial.

       {¶ 8} The six-day jury trial commenced on April 16, 2013. Testimony was

presented from EMS, treating physicians and surgeons, therapists, their dentist, family

members, appellant Bobby, and experts regarding the value of appellants’ damages.

Testimony was presented that the non-reduced medical expenses for both totaled

$286,279.59. In dispute was the amount of noneconomic, or pain and suffering and

consortium damages. The jury awarded Bobby $63,222.64 for medical expenses,

$130,500 for non-economic damages, $5,000 for future economic damages, and $15,000

for future non-economic damages. As to Faye, the jury awarded $70,719.50 for medical



4.
expenses and $65,000 for past non-economic damages. These amounts, totaling

$349,442.14, were reduced by the $16,666.66 credit for each plaintiff received from

Seeholzer’s insurer.

       {¶ 9} On May 3, 2013, appellants filed a motion for a new trial or, alternatively,

for additur. In their motion, appellants argued that as to Faye, the jury’s verdict was

against the weight of the evidence which established that her damages were $229,456.04,

not the $135,719.50 that was awarded. Appellants contend that OMIG admitted in its

answer to their amended complaint that Faye’s damages were $229,456.04. Appellants

further alleged misconduct by the prevailing party. In opposition, OMIG contended that

its settlement offer was not evidence; rather, under Evid.R. 408, was an inadmissible

offer to compromise. Further, in its answer to appellants’ amended complaint, OMIG

“admitted” that they made the settlement offer. OMIG claims its admission was not an

admission to the amount of the damages sustained by appellants.

       {¶ 10} On May 29, 2013, journalized on June 3, 2013, the trial court denied

appellants’ motion for a new trial finding that the jury simply rejected the appellants’

adjustor’s assessment of the damages and that, as the trier of fact, it was within their

province to do so. The court further noted that there was no cause to believe that the jury

ignored evidence.

       {¶ 11} On May 31, 2103, appellants filed a notice of appeal and now raise the

following six assignments of error for our consideration:




5.
            Assignment of Error No. 1: The trial court erred by bifurcating the

     issue of the tortfeasor’s liability from the plaintiffs-appellants’ claim of bad

     faith against their underinsured motorist carrier.

            Assignment of Error No. 2: The trial court erred by denying

     plaintiffs-appellants’ motion for new trial or, alternative motion for additur.

            Assignment of Error No. 3: The trial court erred by arbitrarily

     denying production of defendants-appellees’ claims file immediately

     following the first trial in contravention of its pretrial order.

            Assignment of Error No. 4: The trial court erred by disregarding its

     order that a second jury trial on plaintiffs-appellants’ claim of bad faith

     against their underinsured motorist carrier would commence shortly after

     the first jury trial as to the tortfeasor’s liability even if the first verdict did

     not exceed the UIM policy limits.

            Assignment of Error No. 5: The trial court erred by journalizing a

     final order in contravention of Civ.R. 54(B).

            Assignment of Error No. 6: The trial court erred by entering a final

     order because such order prejudiced plaintiffs’ ability to timely prosecute

     their second jury trial on plaintiffs’ claim of bad faith against their

     underinsured motorist carrier and causing piecemeal litigation and appeals

     in contravention of judicial economy.




6.
       {¶ 12} We will first address appellants’ fifth and sixth assignments of error.

Appellants contend that the trial court erred in journalizing its May 23, 2013 judgment

entry on the jury trial as a final order and stating that there was “no just reason for delay”

because their bad faith claim remained pending. Appellants further contend that the

court, depriving them of their fundamental “opportunity to be heard” refused to hear

arguments before entering the Civ.R. 54(B) language. Appellants further argue that they

will be prejudiced by the delay between trials.

       {¶ 13} In a case involving multiple claims and multiple parties, an order is final

and appealable if it disposes of at least one full claim by one party against another and

includes an express determination that “there is no just reason for delay” pursuant to

Civ.R. 54(B). Horner v. Toledo Hosp., 94 Ohio App.3d 282, 288, 640 N.E.2d 857 (6th

Dist.1993). Here, the trial court’s order disposed of appellants’ contract action against

OMIG and included the appropriate Civ.R. 54(B) language that there was no just reason

for delay.

       {¶ 14} Appellants first contend that the court’s failure to hear their objections prior

to its finding of “no just reason for delay” denied them of their due process rights to be

heard. In support, appellants cite an Ohio Supreme Court case regarding a putative

father’s constitutionally protected rights prior to an adoption. In re Adoption of Zschach,

75 Ohio St.3d 648, 665 N.E.2d 1070 (1996). The court noted that because the

relationship between a parent and a child is constitutionally protected, the relationship




7.
between a potential father and child is protected and the proceedings must comply with

the Due Process Clause. Id. at 653. We find that this case has no application to present

facts.

         {¶ 15} Appellants argue that by inserting the Civ.R. 54(B) language the court

made it “impossible” for the case to be tried before the same jury. We find that following

the verdict, and based upon the trial court’s ruling on OMIG’s motion to bifurcate, the

case was already concluded and would not have been tried before the same jury. Thus,

appellants’ argument fails.

         {¶ 16} Next, appellants assert that they will suffer prejudice in the delay between

trials. Appellants further argue that judicial economy was not served by ordering

separate trials. The decision to bifurcate claims or issues is within the trial court’s

discretion. Civ.R. 42(B). In deciding to bifurcate, absent evidence to the contrary, it is

presumed that the court considered the expenditure of time and its resources in

conducting separate trials and allowing an interlocutory appeal. We find no error.

         {¶ 17} Accordingly, we find that the trial court did not abuse its discretion when it

inserted the Civ.R. 54(B) language making the May 23, 2013 judgment entry a final and

appealable order. Appellants’ fifth and sixth assignments of error are not well-taken.

         {¶ 18} In appellants’ first assignment of error, they argue that the trial court erred

when it bifurcated the damages portion of their case from the bad faith claim against

OMIG. Appellants contend that the trial court should have bifurcated the issues, breach

of contract and bad faith claims, into two phases before the same jury rather than two



8.
separate trials. In support, appellants distinguish Civ.R. 42(B) which OMIG used as a

basis for separating the trial and R.C. 2315.21(B) which addresses the bifurcation of

evidence. Civ.R. 42 (B) provides:

              The court, after a hearing, in furtherance of convenience or to avoid

       prejudice, or when separate trials will be conducive to expedition and

       economy, may order a separate trial of any claim, cross-claim,

       counterclaim, or third-party claim, or of any separate issue or of any

       number of claims, cross-claims, counterclaims, or third-party claims, or

       issues, always preserving inviolate the right to trial by jury.

R.C. 2315.21(B) states that in a tort action that is tried to a jury and has claims for

compensatory are well as punitive or exemplary damages the court, upon a motion by any

party, may bifurcate the trial into two stages: first the compensatory damages, then any

additional damages.

       {¶ 19} A trial court’s ruling on whether to bifurcate claims or issues is reviewed

for an abuse of discretion. Thomas v. Nationwide Mut. Ins. Co., 177 Ohio App.3d 502,

2008-Ohio-3662, 895 N.E.2d 217, ¶ 124 (8th Dist.). In Thomas, the court noted the trial

court’s decision to bifurcate the coverage and bad faith claims was in reliance on a

Second District case finding that “not bifurcating the claims would be ‘grossly

prejudicial’ to the insurance company.” Id. at ¶ 126, citing Garg v. State Auto Mut. Ins.

Co., 155 Ohio App.3d 258, 2003-Ohio-5960, 800 N.E.2d 757 (2d Dist.). The court

concluded that this was not an abuse of discretion. Id.



9.
      {¶ 20} In granting OMIG’s motion to bifurcate, the court found:

             [I]t [is] prudent and advisable to first try the issue of damages and

      then try the Bad Faith claim. The scope of the Bad Faith claim will be

      determined by first trying the damages issue. Plaintiff essentially argues

      that the damages clearly exceed OMIG’s UIM policy limits; but this is

      quintessentially a question of fact for the jury to decide. Counsel’s mere

      say so, doesn’t make it the case. In the event a jury determines that

      Plaintiff’s damages are equal to or less than OMIG’s offer, the Bad Faith

      claim to be tried would relate to matters other than the lack of reasonable

      justification for not paying limits (i.e. the Bad Faith claim could still

      involve delay in payment, etc.) The insuring agreement of the OMIG

      policy (likely most, if not all, UIM policies) provides:

             “We will pay compensatory damages which an ‘insured’ is legally

      entitled to recover from the owner or operator of * * * an ‘underinsured

      motor vehicle.’”

             So, even though OMIG is liable contractually up to the $500,000

      limit of the UIM coverage, it is so liable only because Plaintiff is legally

      entitled to recover from Seeholzer. So the contractual obligation should be

      fixed and determined before the scope and extent of OMIG’s alleged tort of

      Bad Faith can be assessed and tried; * * *.




10.
       {¶ 21} Reviewing the court’s reasoning and relevant case law, we find that the

court did not abuse its discretion when it bifurcated for trial the breach of contract and

bad faith claims. Appellants’ first assignment of error is not well-taken.

       {¶ 22} In their second assignment of error, appellants contend that the trial court

erred when it denied their motion for a new trial or, alternatively, additur. Appellants

argue that the jury erroneously failed to consider OMIG’s admission as to damages as

well as the testimony of OMIG’s claims adjuster and appellants’ undisputed expert

testimony.

       {¶ 23} In determining whether to grant new trial, “the court must weigh the

evidence and pass upon the credibility of the witnesses, not in the substantially unlimited

sense that such weight and credibility are passed on originally by the jury but in the more

restricted sense of whether it appears to the trial court that manifest injustice has been

done and that the verdict is against the manifest weight of the evidence.” Rohde v.

Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph three of the syllabus.

       {¶ 24} An appellate court reviews a court’s ruling on a motion for a new trial

under an abuse of discretion standard. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139,

2007-Ohio-5587, 876 N.E.2d 1201, ¶ 35; Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d

307, 312, 649 N.E.2d 1219 (1995). That is, we will not reverse the court’s decision

unless it is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).




11.
      {¶ 25} Appellants requested a new trial under Civ.R. 59(A)(2), (4), (5), (6) and (9)

which provide:

             (A) Grounds

             A new trial may be granted to all or any of the parties and on all or

      part of the issues upon any of the following grounds:

             ***

             (2) Misconduct of the jury or prevailing party;

             ***

             (4) Excessive or inadequate damages, appearing to have been given

      under the influence of passion or prejudice;

             (5) Error in the amount of recovery, whether too large or too small,

      when the action is upon a contract or for the injury or detention of property;

             (6) The judgment is not sustained by the weight of the evidence;

      however, only one new trial may be granted on the weight of the evidence

      in the same case;

             ***

             (9) Error of law occurring at the trial and brought to the attention of

      the trial court by the party making the application.

             In addition to the above grounds, a new trial may also be granted in

      the sound discretion of the court for good cause shown.




12.
       {¶ 26} Appellants’ argument centers on the testimony of OMIG claims adjuster,

Charles Weinman, who testified, over objection, regarding OMIG’s answer to appellants’

amended complaint. In its answer, OMIG admitted to offering $396,322.96 for both

claims. Weinman agreed that, at some point, OMIG determined that this was a proper

amount of damages. In its answer to the amended complaint, OMIG further provided

that, as to Faye, it offered $229,456.04, as settlement of the claims relating to her injuries.

OMIG counters that the jury was not required to accept the testimony of any one witness,

expert or not, and was not required to agree with either parties’ assessment of damages.

       {¶ 27} We first note that OMIG’s offer of settlement was not admissible evidence

of the value of appellants’ damages. Evid.R. 408 provides that evidence of “furnishing or

offering or promising to furnish * * * a valuable consideration in compromising or

attempting to compromise a claim which was disputed as to either validity or amount, is

not admissible to prove liability for or invalidity of the claim or its amount.” (Emphasis

added.)

       {¶ 28} Contrary to appellants’ argument, the evidence was not a judicial

admission; OMIG admitted that the offer was made and the amount of the offer. Such

evidence would likely be admissible during the bad faith claim proceedings. Generally

settlement offers consider more than economic and non-economic damages; they include

other factors including the costs of additional litigation. See Z Interior Decorations, Inc.




13.
v. Westport Home of Ohio, Inc., 5th Dist. Delaware No. 11CAE020017, 2011-Ohio-4113,

¶ 37, citing Schafer v. RMS Realty, 138 Ohio App.3d at 295, 741 N.E.2d 155 (2d Dist.

2000).

         {¶ 29} Based on the foregoing, we find that appellants failed to demonstrate that

the jury’s verdict was inadequate. Thus, the trial court’s decision denying their motion

for a new trial or additur was not in error. Appellants’ second assignment of error is not

well-taken.

         {¶ 30} Appellants’ third assignment of error challenges the trial court’s ruling

regarding discovery of the claims file. Appellants contend that the court initially stated

that the materials would be discoverable at the conclusion of the breach of contract trial

but then did not allow discovery to proceed. Appellants further argued that they were not

aware that the issues were to be bifurcated into two separate jury trials, not just stages of

a single trial.

         {¶ 31} We first note that the contention that appellants did not realize that the

issues in the case would be tried before two juries is not credible. The court specifically

stated that it would try the issue of damages first and then the bad faith claim. This was

the basis of prohibiting discovery of the privileged portions of the claims file until after

the trial on damages. Appellants then commenced this appeal which, understandably,

would further delay discovery.

         {¶ 32} Appellants also argue that OMIG failed to delineate the reason that it

would be prejudiced by the disclosure of the requested documents. We disagree. In its



14.
response to appellants’ motion to compel, OMIG specifically stated that it would be

prejudiced by discovery of the claims file because it contains defense theories and

strategies including documentation and evaluations.

       {¶ 33} Based on our review of the record, we find that the trial court did not err

when it denied appellants’ motion to compel discovery of the claims file. Appellants’

third assignment of error is not well-taken.

       {¶ 34} In appellants’ fourth assignment of error, they argue that the trial court

erred when, in contravention of its order that a second jury trial would commence

“shortly” after the first jury trial, it found “no just reason for delay” and that such finding

“prevents judicial economy and prejudiced Plaintiffs.” Based on our disposition of

appellants’ fifth and sixth assignments of error, we find that the trial court did not abuse

its discretion by certifying the judgment as final and appealable. Appellants’ fourth

assignment of error is not well-taken.

       {¶ 35} On consideration whereof, we find that substantial justice was done the

parties complaining and the judgment of the Erie County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellants are ordered to pay the costs of this appeal.



                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




15.
                                                              E-13-035
                                                              Brummitt, et al. v.
                                                              Seeholzer, et al.




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
James D. Jensen, J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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