[Cite as Jontony v. Colegrove,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98295

HENRY JONTONY, ET AL. PLAINTIFFS-APPELLEES/ CROSS-APPELLANTS

vs.

LEE J. COLEGROVE, ET AL. DEFENDANT

[APPEAL BY CITY OF STRONGSVILLE] DEFENDANT-APPELLANT/ CROSS-APPELLEE

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-677987 BEFORE: Keough, J., Stewart, P.J., and Cooney, J. RELEASED AND JOURNALIZED: December 10, 2012 ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Christina J. Marshall Brian Dodez James M. Popson Sutter, O’Connell & Farchione Co., LPA 3600 Erieview Tower 1301 East 9th Street Cleveland, OH 44114

ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS

Mark J. Obral Thomas J. Silk Alexander L. Pal Obral, Silk & Associates 1370 Ontario Street 1520 Standard Building Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant/cross-appellee, city of Strongsville (“the City”), appeals

various rulings made by the trial court during the course of litigation with

plaintiffs-appellees/cross-appellants, Henry Jontony, Patricia Jontony, Dominic Jontony,

and Kara Jontony (collectively the “Jontonys”). The Jontonys filed a cross-appeal

challenging the trial court’s decision denying prejudgment interest. For the reasons that

follow, we affirm in part, reverse in part, and remand.

{¶2} This case arises from a traffic accident involving Henry Jontony and city of

Strongsville police sergeant, Lee Colegrove. It is undisputed that Colegrove, while on

duty, turned in front of Mr. Jontony’s vehicle, causing Mr. Jontony’s vehicle to strike

Colegrove’s SUV police cruiser. It is also undisputed that Colegrove was operating his

police cruiser without the use of his police lights and sirens. As a result of the accident,

it is alleged that Mr. Jontony suffered serious brain injury.

{¶3} On December 3, 2009, the Jontonys filed an action against Colegrove and the

city of Strongsville alleging negligence. On January 7, 2009, the city of Strongsville and

Colegrove jointly filed an answer generically denying various allegations in the

complaint, and asserting several affirmative defenses. Specifically for Colegrove, the

defense of immunity pursuant to R.C. Chapter 2744 was asserted, whereas the affirmative

defense of immunity was not asserted on behalf of the City.

{¶4} On the same day that the joint answer was filed, Colegrove moved for judgment on the pleadings, contending he was immune from liability pursuant to R.C.

2744.03(A)(6). The motion concluded that “* * * Defendant Colegrove is entitled to

judgment as a matter of law and the lawsuit should proceed against remaining Defendant

City of Strongsville.” Thereafter, the Jontonys voluntarily dismissed Colegrove from the

lawsuit and proceeded solely against the City.

{¶5} The record reflects that discovery was ongoing, primarily on the issue of

damages. On May 22, 2009, the Jontonys deposed Colegrove who testified that at the

time of the accident he was not responding to an emergency call. In June, counsel for the

Jontonys and the City exchanged correspondences regarding the issue of immunity, where

the City (1) admitted negligence, (2) assumed “100% responsibility for the accident,” and

(3) identified the only remaining issues in the case to be damages and setoffs.

{¶6} With the issue of proving liability removed from the case, the matter was

scheduled for trial to commence on September 28, 2009. Less than seven weeks before

trial, the City attempted to raise the affirmative defense of immunity, which the City

initially agreed had no application to the case. On August 11, 2009, the City filed its

instanter motion for leave to file summary judgment asserting that it is was entitled to

judgment as a matter of law because the City is immune from liability under the

“emergency call” doctrine. On August 31, the trial court in denying the City’s instanter

motion, stated “Defendant failed to raise immunity on behalf of defendant City of

Strongsville as an affirmative defense in its answer and has thus waived the defense.”

Additionally, on August 31, the trial court rescheduled the trial to December 28, 2009, and new counsel for the City entered an appearance on the record.

{¶7} Three months later on November 20, 2009, the City requested leave to file its

amended answer to assert the affirmative defense of governmental immunity. The trial

court allowed both sides ample opportunity to present its arguments for and against the

motion to amend. In January 2010, the trial court denied the City’s request for leave to

file its answer, specifically finding:

Defendant City of Strongsville’s motion for leave to amend answer is

denied. Pursuant to Civil Rule 15(A), amendments to pleadings shall be

freely granted when justice so requires; however, leave is denied if there is

a showing of bad faith, undue delay, or undue prejudice to the opposing

party. Hoover v. Sumlin (1984),

. Defendant assured

plaintiff that “the City of Strongsville does not intend to assert an immunity

defense because Officer Colegrove was not on an ‘emergency call’ as that

phrase has been defined by R.C. § 2744(B)(1) and the case law interpreting

the same.” This assurance was made on or about June 22, 2009. Allowing

defendant to amend its answer would be prejudicial. All dates remain as

previously set.

{¶8} The matter ultimately proceeded to a jury trial on the issue of damages, and

the jury awarded a total judgment to the Jontonys in the amount of $1,106,608.87. After

applying statutory set-offs and caps, the trial court entered a final judgment in favor of the

Jontonys in the amount of $796,891.07; however, it denied the Jontonys’ request for prejudgment interest.

I. Amended Answer

{¶9} In its first assignment of error, the City contends that the trial court abused its

discretion in denying its motion for leave to amend its answer to assert the defense of

immunity.

{¶10} Civ.R. 8(C) requires that in a responsive pleading, a party must “set forth

affirmatively * * * any other matter constituting an avoidance or affirmative defense.”

Accordingly, the affirmative defense of political subdivision immunity is required to be

asserted in a responsive pleading. Spence v. Liberty Twp. Trustees,

,

(4th Dist. 1996). Although failure to adhere to this

requirement exposes the party to forfeiture of the defense, “[i]n the real world * * *

failure to plead an affirmative defense will rarely result in [forfeiture]” because of the

protection of Civ.R. 15(A). Hoover v. Sumlin,

,

(1984), quoting Bobbitt v. Victorian House, Inc.,

(N.D.Ill. 1982)

{¶11} Civ.R. 15(A) allows for amendment of pleadings by leave of court or by

written consent of the other party after a responsive pleading has been made. As the trial

court noted, Civ.R. 15(A) expressly provides that “[l]eave of court shall be freely given

when justice so requires.”

{¶12} An appellate court applies an abuse of discretion standard of review to a

trial court’s decision to grant or deny a party leave to amend a pleading. Wilmington Steel

Prods. Inc. v. Cleveland Elec. Illum. Co.,

,

(1991). “This court’s role is to determine whether the trial judge’s decision was an abuse of

discretion, not whether it was the same decision we might have made.”

An abuse of

discretion connotes more than an error of law or of judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983), citing State v. Adams,

,

(1980).

{¶13} This court has previously acknowledged that the abuse of discretion

standard is a very high standard and “‘evidences not the exercise of will but perversity of

will, not the exercise of judgment but defiance thereof * * *.’” Aponte v. Aponte, 8th

Dist. Nos. 77394 and 78090,

(Feb. 15, 2001), quoting State

v. Jenkins,

,

(1984).

{¶14} Although the grant or denial of a leave to amend a pleading is within the

sound discretion of the trial court, this discretion is not unfettered. “A motion for leave

to amend should be granted absent a finding of bad faith, undue delay or undue prejudice

to the opposing party.”

.

{¶15} In this case, the trial court determined that allowing the City leave to amend

its answer would be prejudicial to the Jontonys; thus, it denied the City leave. The trial

court based its decision, in part, on the assertion contained in the June 22, 2009 letter that

the City was not pursuing an immunity defense in this case.

This letter will confirm that the City of Strongsville does not intend to assert an immunity defense because Officer Colegrove was not on an “emergency call” as that phrase has been defined by R.C. [Section] 2744.02(B)(1) and the case law interpreting the same. Additionally, as Officer Colegrove did during this deposition, the City is admitting he was negligent. Additionally, I do not see any colorable basis for asserting comparative negligence or assumption of the risk and, therefore, will not do so. Since Officer Colegrove did not see your client, the City is assuming 100% responsibility for the accident.

As I see it, the only remaining issues are what damages were proximately cause by this accident and whether the City is entitled to setoff under R.C. [Section] 2744.05(B).

{¶16} According to the jointly filed answer where immunity was not asserted on

behalf of the City and this letter from the City, the Jontonys relied on the City’s

admissions and concessions and only prepared for trial concerning damages. We find

this reliance reasonable considering that the June 22, 2009 letter was in response to the

Jontonys’ counsel asking for a “stipulation” regarding liability. See Reed v. Multi-Cty.

Juvenile Sys., 7th Dist. No.

,

(“even in a jointly filed

answer, if only one of the defendants is named regarding a particular defense, it is

reasonable to assume that the unnamed defendant did not intend to raise the defense”);

O’Brien v. Olmsted Falls, 8th Dist. Nos. 89966 and 90336,

(pursuant to Civ.R. 8(C), defendant required to set forth affirmative defenses that would

effectively preclude liability, and failure to do so waives the defense, including

immunity).

{¶17} The City maintains that the trial court abused its discretion in finding

prejudice because (1) discovery was still ongoing and trial was three months away, (2) the

defense was raised only eight months after the action commenced, and (3) the Jontonys

would not be faced with any different obstacles that would have been present if the immunity defense had been asserted in the City’s original answer. The City cites

Hoover,

,

and McGlone v. Spade, 3d Dist. No. 3-01-26,

, in support of its arguments.

{¶18} In Hoover, the defendant moved for leave to amend its answer to assert the

affirmative defense of notice more than two years after commencement of litigation and

after a trial date had been set. The Ohio Supreme Court, in finding the trial court abused

its discretion in denying leave, held that “where [an affirmative] defense is tendered

timely and in good faith, and no reason is apparent or disclosed for denying leave, the

denial of leave to file such an amended pleading or the subsequent striking of a defense

from an amended pleading is an abuse of discretion.” Id. at 5, citing Peterson v.

Teodosio,

,

(1973). Additionally, the court noted

that the plaintiffs were not prejudiced by the addition of the affirmative defense “as they

faced no obstacles by the amendment which they would have faced had the original

pleading raised the defense.” Id. at 6.

{¶19} In McGlone, the Third District concluded that the trial court did not abuse

its discretion in granting the defendant’s motion to amend its answer to assert the

affirmative defense of immunity. Id. at ¶ 56. The defendant did not discover that the

defense of immunity existed until after the plaintiff was deposed and it was discovered

that due to an allowable workers’ compensation claim the plaintiff filed, the defendant

had an immunity defense. Id. at ¶ 53. The defendant immediately moved the trial court

for leave to amend her answer, explaining the rationale and basis for the amendment. The court, citing Hoover, held that the plaintiff would not be faced with any additional

obstacles in proving liability because the defendant always denied she acted negligently.

The court also distinguished the Ohio Supreme Court’s decision of Turner v. Cent. Local

School Dist.,

,

,

, noting that there was

not a complete lack of rationale for the defendant’s failure to assert the defense earlier.

{¶20} We find both Hoover and McGlone distinguishable from the facts in this

case. Unlike in Hoover, where the trial court failed to indicate any basis for denying the

defendant leave to amend, the trial court in this case clearly stated that the Jontonys would

be prejudiced due to the assurances the City made in its June 22, 2009 letter.

{¶21} Moreover, unlike in McGlone, where the applicability of the immunity

defense was discovered in depositions, the affirmative defense of immunity was “an

obvious defense” from the face of the complaint, yet the City failed to assert it on its own

behalf. See Turner at 99 (defendant failed to give any rationale or explanation for its

failure to assert obvious defense in answer).

{¶22} In both Hoover and McGlone, the courts identified that the plaintiffs would

not be prejudiced by the addition of the affirmative defense as they faced no additional

obstacle that would not have been present if the original pleading raised the defense. In

Hoover, the affirmative defense to be added was the statute of limitations defense, which

by its nature did not place any additional obstacle before the plaintiff — the issue is

whether the cause of action was timely filed within the limitations period. In McGlone,

where the immunity defense was allowed to be asserted through an amended answer, the defendant denied any liability from the outset of the case, thus, liability needed to be

proven by plaintiff at trial. Accordingly, whether the plaintiff had to prove liability at

trial or in response to an immunity defense, the McGlone plaintiff was faced with no

additional obstacle with the defendant amending her answer to assert immunity.

{¶23} In the case before this court, however, the City admitted its negligence and

assumed 100% responsibility for the accident. Therefore, the Jontonys would be faced

with the additional obstacle of proving that the City was not immune from liability if the

City was allowed to amend its answer — an obstacle that was nonexistent for eight

months into litigation. See Hayden v. Ford Motor Co.,

(6th Cir. 1974)

(where plaintiff takes action in reliance on defendant’s failure to assert an affirmative

defense, plaintiff is prejudiced if leave to amend the answer is subsequently granted to

assert the affirmative defense).

{¶24} Additionally, unlike in McGlone and more akin to Turner, the City gave no

logical rationale or explanation for its failure to assert the obvious defense. The City

contended that the case law supporting an “emergency call” defense was not discovered

until after the answer was filed. However, the newly discovered case law cited by the

City, Longley v. Thailing, 8th Dist. No. 91661,

, did not establish a new

rule of law applicable to the case. This case merely reiterated a longstanding line of

cases concerning the “emergency call” doctrine. See, e.g., Colbert v. Cleveland,

,

,

. Moreover, these cases were in existence

when the City sent its June 22, 2009 letter maintaining that it was not asserting immunity because Colegrove “was not on an ‘emergency call’ as that phrase has been defined by

R.C. [Section] 2744.02(B)(1) and the case law interpreting the same.” Much like in

Turner, no rationale or explanation for its failure to assert the obvious affirmative defense

was given by the City.

{¶25} We also find that when the City first raised the issue of immunity in its

instanter motion for summary judgment, the trial was not three months away as the City

argues, rather it was scheduled to commence in less than seven weeks. And even though

the trial was rescheduled, when the City finally requested leave to amend its answer, in

November, trial was less than five weeks away.

{¶26} Finally, we note that in the Jontonys’ trial brief, which was filed one week

after the City requested leave to file its motion for summary judgment, the Jontonys

identify a portion of their brief as “Stipulations,” where it is stated that “Defendants have

stipulated to negligence, waived immunity, and stipulate to liability.” The record does

not reflect that the City has ever challenged this statement with the trial court.

{¶27} The Jontonys argued they would be prejudiced if the City was allowed to

amend its answer and presented the trial court with documentation evidencing the amount

of money they expended in preparation for trial on damages — the only issue remaining

to litigate. While the issue of whether the City would prevail on its immunity defense is

not before this court, we note that the City’s immunity from liability would negate the

trial on damages. Accordingly, the time and resources spent for trial would be for

naught. This scenario is precisely what this court envisioned when it stated in Supportive Solutions Training Academy v. Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022

and 95287,

, that “a political subdivision should timely assert its

immunity defense so that the other litigant does not devote its time and resources in

litigating a lawsuit that could be barred by immunity.” See also Hubbell v. Xenia,

,

,

, quoting Burger v. Cleveland Hts.,

,

,

(1999) (Lundberg Stratton,

J., dissenting) (“‘As the General Assembly envisioned, the determination of immunity

could be made prior to investing the time, effort, and expense of the courts, attorneys,

parties, and witnesses * * *’”).

{¶28} Accordingly, the trial court’s decision finding that it would be prejudicial to

the Jontonys is neither unreasonable nor arbitrary. Furthermore, after the trial court

denied the City’s instanter motion for leave to file summary judgment, the City hired an

independent medical examiner and participated in mediation. Finally, the City’s new

trial counsel who entered an appearance in August, waited three months to request leave

to amend its answer to assert immunity. These subsequent actions by the City in

preparing for trial on damages and the delay in seeking to amend its answer further

evidence that the Jontonys reasonably relied on the City’s initial position that immunity

was not an issue.

{¶29} The trial court did not find that the City acted in bad faith, but found that the

City’s failure to timely assert the immunity defense was prejudicial to the Jontonys. In

light of the foregoing discussion and reasons, we cannot say that the trial court abused its discretion in denying the City leave to amend its answer to assert the immunity defense.

The City’s first assignment of error is overruled.

II. Nunc Pro Tunc

{¶30} The City argues in its second assignment of error that the trial court erred in

granting plaintiff’s motion for a nunc pro tunc entry to clarify a previous order by entry of

March 28, 2012. We agree.

{¶31} This court reiterated the longstanding rule of the use of nunc pro tunc in Scaglione v. Saridakis, 8th Dist. No. 91490,

.

A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth. It is used to record that which the trial court did, but which has not been recorded. It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued. Thus, the office of a nunc pro tunc order is limited to memorializing what the trial court actually did at an earlier point in time. It can be used to supply information which existed but was not recorded, to correct mathematical calculations, and to correct typographical or clerical errors.

A nunc pro tunc order cannot be used to supply omitted action, or to

indicate what the court might or should have decided, or what the trial court

intended to decide. Its proper use is limited to what the trial court actually

did decide. That, of course, may include the addition of matters omitted

from the record by inadvertence or mistake of action taken. Therefore, a

nunc pro tunc order is a vehicle used to correct an order previously issued

which fails to reflect the trial court’s true action. (Internal citations

omitted).

Id. at ¶ 9, quoting State v. Greulich,

,

(9th Dist. 1988).

{¶32} Moreover, “the function of a nunc pro tunc entry is not to correct or modify

an existing judgment but rather to make the record conform to what has already

occurred.” Pepera v. Pepera, 8th Dist. No. 51989,

(Mar.

26, 1987).

{¶33} The trial court initially denied the City’s instanter motion for leave to file a

motion for summary judgment because the motion was based on the assertion of political

immunity, which was an affirmative defense not raised by the City in its answer. An

affirmative defense raised for the first time on summary judgment is not proper.

Supportive Solutions, 8th Dist. No. 95287,

, citing Mossa v. W.

Credit Union, Inc.,

,

(10th Dist. 1992).

{¶34} However, the trial court attempted to expand its rationale for denying the

City’s motion by way of nunc pro tunc. The trial court was not correcting a mistake,

rather it was expanding on its decision, at the request of the Jontonys. Reviewing the

Jontonys’ motion for a nunc pro tunc entry to clarify a previous order, its stated purpose

was to prevent the City from making a certain argument on appeal. The entry modifies

the court’s prior decision to reflect the additional information and rationale the Jontonys

wished the trial court would have included when it initially ruled on the City’s motion.

This is not the proper purpose of a nunc pro tunc.

{¶35} In this case, the trial court’s true action was to deny the instanter motion for

leave to file a motion for summary judgment, which is what it initially did. The nunc pro tunc served no other purpose than to further explain an order of the court that needed no

further explanation to reflect the truth of the record. Accordingly, the City’s second

assignment of error is sustained. On remand, the trial court is instructed to vacate the

March 27, 2012 nunc pro tunc order.

III. Directed Verdict/Immunity

{¶36} In its third and fourth assignments of error, the City contends that the trial

court erred in denying the City’s motion for directed verdict because it is immune from

liability. However, as previously noted, the City failed to assert the defense of immunity

in its responsive pleading, accordingly, the defense of immunity was waived and could

not be used as an argument in favor of a directed verdict. See, e.g., Spence,

,

.

{¶37} Moreover, although the City did file a motion for judgment notwithstanding

the verdict and a post-trial motion to amend its answer to conform to the evidence

pursuant to Civ.R. 15(B), the City has failed to argue or assign any error on appeal

regarding the trial court’s denial of these motions. The City’s third and fourth

assignments of error are overruled.

IV. Damages

{¶38} In its final assignment of error, the City argues that the trial court erred in

partially denying its motion to enforce setoffs and non-economic damages cap pursuant to

R.C. 2744.05.

{¶39} Following the jury verdict, the City moved the court to apply and enforce setoffs and non-economic damages cap. Included in the motion, the City argued that it is

entitled to a setoff of the full amount of the jury’s award of $250,000 for “lost wages and

loss of services” pursuant to R.C. 2744.05(B)(1). The trial court determined that Mr.

Jontony’s union pension benefits are not considered “benefits” under R.C. 2744.05; thus,

not subject to setoff. The trial court also determined that it was left to speculate how

much of the jury verdict was for lost wages and how much was for loss of services, but

from the evidence, it apportioned that $48,859 was subject to setoff because the evidence

was clear that this portion would necessarily be from lost wages.

{¶40} The City contends on appeal that the disability benefits received by Mr.

Jontony through social security and his union pension plan exceed the $250,000 jury

award and, therefore, the entire award should be set off pursuant to R.C. 2744.05(B).

Within this argument the City raises three issues: (1) whether the benefits paid to Mr.

Jontony through his union pension plan, classified as retirement disability benefits, are

subject to setoff under R.C. 2744.05(B); (2) whether the Jontonys should benefit from the

deficient jury interrogatories when the interrogatories used were submitted by the

Jontonys; and (3) whether “loss of services” is subject to setoff under R.C. 2744.05(B).

{¶41} Because this court is asked to interpret R.C. 2744.05, we review this matter

de novo.

A. Union Pension Benefits

{¶42} The gravamen of the City’s argument is that the benefits paid to Mr. Jontony

pursuant to his Ohio Carpenters’ Pension Union Fund are collateral source benefits to be setoff under R.C. 2744.05.

{¶43} R.C. 2744.05(B) provides for setoff in an action against a political

subdivision to recover damages for injury caused by an act in connection with a

governmental function.

(B)(1) If a claimant receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against a political subdivision recovered by that claimant.

Accordingly, the City is entitled to certain setoff amounts that Mr. Jontony received or

would receive from collateral source benefits.

{¶44} “Benefits” under R.C. 2744.05(B), has been defined as “financial assistance

received in time of sickness, disability, unemployment, etc. either from insurance or

public programs such as social security.” Vogel v. Wells,

,

, quoting Black’s Law Dictionary 158 (6th Ed. 1990). The Ohio Supreme

Court has also included Medicare and Medicaid as the “type of collateral source benefits

contemplated by R.C. 2744.05(B).” Galanos v. Cleveland,

,

(1994), and Buchman v. Bd. of Edn. of the Wayne Trace Local School Dist.,

,

,

, paragraph two of the syllabus. This

classification has never been expanded to include monies received from self-funded

pensions, and we decline to broaden this classification today.

{¶45} The Carpenters’ Pension Fund is a self-funded pension plan, which Mr.

Jontony contributed to for his retirement. According to the terms of the plan, Mr. Jontony was permitted to take an early retirement due to his disability. Moreover, and

per the terms of the plan, the amount of his monthly benefit was his fully accrued pension

benefit under the Plan. The benefits he received were retirement benefits, which he was

permitted to access early due to his disability. Accordingly, we find Mr. Jontony’s union

pension plan is not a “public program” as defined by the Ohio Supreme Court; thus, not

subject to the setoff provisions of R.C. 2744.05(B).

B. Jury Interrogatories and “Loss of Services”

{¶46} The jury interrogatories submitted requested the jury to apportion its general

verdict into six categories: (1) Past Medical Expenses, (2) Economic Compensatory

Damages for Henry Jontony, (3) Non-economic Compensatory Damages for Henry

Jontony, (4) Loss of Consortium for Patricia Jontony, (5) Loss of Consortium for Kara

Jontony, and (6) Loss of Consortium for Dominic Jontony. The interrogatories separated

“Economic Compensatory Damages” into two subsections: (A) Lost wages and loss of

services and (B) Future medical care and treatment. Pertinent to the issue raised by the

City, the jury awarded Mr. Jontony $250,000 for “lost wages and loss of services.”

{¶47} The City contends that it is entitled to setoff the full amount of the jury’s

award for “lost wages and loss of services” because the amount of Social Security

disability benefits Mr. Jontony received or is entitled to receive exceeds the jury award.

{¶48} In so far as the City is not entitled to any setoff of the union pension benefits

Mr. Jontony received or is entitled to receive, the City is entitled to a setoff of the Social

Security disability benefits Mr. Jontony received or is entitled to receive, but only to the extent the benefits were actually included in the jury award.

A political subdivision is entitled to an offset for collateral benefits only to the extent that such benefits are actually included in the jury’s award, and is entitled to an offset for future collateral benefits only to the extent that they can be determined with a reasonable degree of certainty. Thus, it is the defendant’s burden to prove the extent to which it is entitled to an offset under R.C. 2744.05(B).

Buchman,

,

,

.

{¶49} Determining whether a jury “actually included” in its award a benefit to be

setoff can be difficult.

Although R.C. 2744.05(B) does not require the submission of jury interrogatories to quantify the categories of damages that make up the general verdict * * * such interrogatories are the most efficient and effective method, if not the only method, by which to determine whether the collateral benefits to be deducted are within the damages actually found by the jury.

citing Sorrell v. Thevenir,

,

,

.

{¶50} In this case, the jury interrogatories fail to sufficiently separate lost wages

and loss of services to determine what amount the jury apportioned for “lost wages” and

“loss of services.” The City asserts that this deficiency in the jury interrogatories was

created by the Jontonys; thus, they should not benefit from the invited error. However,

the burden is on the City “to prove the extent to which it is entitled to an offset under R.C.

2744.05.” Buchman at paragraph five of the syllabus.

{¶51} While there is evidence in the record that the City requested that the jury

interrogatory for “lost wages” be divided as “past lost wages” and “future lost wages,” the

City did not object to any inclusion of “loss of services” in the jury interrogatory. We further note that the City did not assign as error the trial court’s decision denying the use

of the City’s proposed jury interrogatories, the inclusion of “loss of services” within “lost

wages,” or the inclusion of “loss of services” under the “economic compensatory

damages” category of the jury interrogatories. “To the extent that the failure to propose

such interrogatories caused the trial court to speculate as to the amount of benefits to be

deducted from the jury’s verdict, the City failed in its burden.” See

.

{¶52} In so far as the City maintains that “loss of services” are subject to setoff

under R.C. 2744.05(B), this court has not been provided with, nor are we able to locate,

any case law that supports the City’s proposition that Social Security disability benefits

are designed to compensate for loss of services. Accordingly, we find that the City is not

entitled to setoff for “loss of services.”

{¶53} However, we agree with the trial court that while the jury interrogatories

do leave this court to speculate how much of the $250,000 was apportioned for “lost

wages” and “loss of services,” we can readily determine that some amount can be

attributed to lost wages, to which the City would be entitled to a setoff.

{¶54} Based on the evidence at trial, the total amount the jury could have awarded

to Mr. Jontony for “loss of services” is $201,141 — the value of Mr. Jontony’s loss of

services as testified by Dr. John Burke. Accordingly, the remaining $48,859 can only

then be apportioned to Mr. Jontony’s lost wages.

{¶55} Testimony was provided at trial that Mr. Jontony was completely disabled

as a result of the accident. Because any jury award for lost wages would be based on Mr. Jontony being determined to be disabled, and he has in fact received Social Security

disability payments, the City would be entitled to a setoff of Social Security disability

payments. The trial court did not err in finding that the City was entitled to a setoff of

Social Security disability payments up to $48,859.

{¶56} Accordingly, the City’s final assignment of error is overruled.

V. Cross appeal — Prejudgment Interest

{¶57} The Jontonys raise one assignment of error in their cross-appeal challenging

the trial court’s denial of prejudgment interest.

{¶58} R.C. 1343.03(C) governs the award of prejudgment interest and provides in

pertinent part:

(1) If, upon motion of any party to a civil action that is based on tortious conduct, that has not been settled by agreement of the parties, and in which the court has rendered a judgment, decree, or order for the payment of money, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case, interest on the judgment, decree, or order shall be computed as follows: * * *.

{¶59} The Ohio Supreme Court has set forth four factors a trial court should

consider in determining whether a party has made a good faith effort to settle a case:

(1) whether the party has fully cooperated in discovery proceedings, (2) whether the party has rationally evaluated his or her risk and potential liability, (3) whether the party has attempted to unnecessarily delay any of the proceedings, and (4) whether a good faith monetary offer was made, or responded to in good faith if made by the other party.

Kalain v. Smith,

,

, syllabus. The moving party bears the burden of demonstrating that the other party failed to make a good faith effort to settle

the case. Moskovitz v. Mt. Sinai Med. Ctr.,

,

,

.

{¶60} The decision whether a party’s settlement efforts indicate good faith is

within the discretion of the trial court. This court will not disturb the trial court’s

findings absent an abuse of discretion.

.

{¶61} In this case, the trial court found that the City had a reasonable expectation

that any jury award would likely be subject to setoffs and noneconomic damages caps

pursuant to R.C. 2744.05. The trial court found these impositions would have likely

factored into the City’s calculus in evaluating its risks and potential liability.

Accordingly, the trial court ultimately concluded that the City made a good faith monetary

settlement offer and responded in good faith to settlement offers made by the Jontonys.

{¶62} The Jontonys contend that the trial court abused its discretion when it issued

its decision without providing any analysis about whether the City made a good faith

effort to settle the case considering the facts and evidence contained in the record. The

Jontonys argue that the City failed to make a good faith effort to settle the case because

(1) the record shows that the City’s settlement authority was substantially higher than the

City’s settlement offers and (2) the jury verdict was substantially disparate to the amount

of the City’s settlement offer.

{¶63} The Jontonys ask this court to establish a rule of law that good faith is

evidenced by comparing the offers made by one party to the settlement authority it possesses — if an offer to settle is substantially disparate to actual settlement authority,

then the offering party has not exercised good faith in settlement. While this may be a

factor, it cannot be the sole basis for finding lack of good faith.

{¶64} The record reflects that the City’s settlement authority was higher than the

City’s settlement offers. However, this factor alone does not establish that the City did

not act in good faith. Although an insurance company may arm its attorneys with

settlement authority, the attorneys evaluate the case, the risks, the potential liability, and

any defenses, setoffs, or caps that may preclude or limit such risk or liability.

Accordingly, the difference in settlement authority and offer should not, in and of itself,

determine that a party did not act in good faith in settlement efforts. See, e.g., Kalain (no

duty to disclose settlement authority when a reasonable, good faith belief exists of no

liability).

{¶65} Moreover, a

lack of good-faith effort to settle is not demonstrated simply by comparing the amount of a settlement offer to the verdict actually returned by a jury[,] although a substantial disparity between an offer and a verdict is one factor circumstantially demonstrating whether a party made a good-faith offer to settle or the adverse party failed to do so * * *.

Andre v. Case Design, Inc.,

,

,

(1st Dist.).

{¶66} The City’s highest offer to settle the case was $175,000, and the Jontonys’

lowest offer was $2.9 million. The jury returned a total verdict of $1.1 million, however,

after setoffs (which are at issue on appeal) and a non-economic damages cap, the amount awarded to the Jontonys was reduced to $796,891.07. Accordingly, while the initial jury

verdict was substantially higher than the City’s offer to settle the case, we cannot fail to

recognize that the initial jury verdict and final amount of judgment is also substantially

lower than the Jontonys’ final settlement offer.

{¶67} The record is abundantly clear that the trial court was actively involved in all

aspects of this case including settlement negotiations, and was in the best position to

evaluate whether good faith was exercised by both parties in settling this case. We find

the trial court’s decision denying prejudgment interest was based on competent, credible

evidence; thus, not an abuse of discretion. The Jontonys’ assignment of error raised in

its cross-appeal is overruled.

{¶68} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.

It is ordered that the parties share equally the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., CONCURS; COLLEEN CONWAY COONEY, J., DISSENTS WITH SEPARATE OPINION. COLLEEN CONWAY COONEY, J., DISSENTING:

{¶69} I respectfully dissent. I would reverse the trial court’s judgment based on

Strongsville’s arguments in the first assignment of error relating to the court’s denial of

its motion to amend its answer.

{¶70} Civ.R. 15(A) provides:

A party may amend his pleading once as a matter of course at any time

before a responsive pleading is served or, if the pleading is one to which no

responsive pleading is permitted and the action has not been placed upon

the trial calendar, he may so amend it at any time within twenty-eight days

after it is served. Otherwise a party may amend his pleading only by leave

of court or by written consent of the adverse party. Leave of court shall be

freely given when justice so requires.

{¶71} In Wilmington Steel Prods., Inc. v. Cleve. Elec. Illum. Co.,

,

(1991), the Ohio Supreme Court explained:

The language of Civ. R. 15(A) favors a liberal policy when the trial judge is

confronted with a motion to amend a pleading beyond the time limit when

such amendments are automatically allowed. “*** Leave of court shall be

freely given when justice so requires ***,” the rule states. This court’s

role is too determine whether the trial judge’s decision was an abuse of

discretion, not whether it was the same decision we might have made.

(Citation omitted.) Furthermore, a motion for leave to amend should be granted to a party absent a finding of

bad faith, undue delay or prejudice to the opposing party. CommuniCare, Inc. v. Wood

Cty. Bd. of Commrs.,

,

,

.

{¶72} In the instant case, the trial court gave a single reason for its denial of

Strongsville’s motion to amend — prejudice to Jontony. Strongsville argues that the

trial court abused its discretion because there is no evidence of bad faith, undue delay, or

prejudice. Jontony argues that the motion was properly denied, although not stated in

the record, due to bad faith, undue delay, and prejudice, as well as defense counsel’s

alleged stipulation.

Stipulation

{¶73} First, the letter that Jontony points to as evidence of Strongsville’s

“stipulation,” does not constitute a stipulation. In Karwowska v. St. Michael Hosp., 8th

Dist. No. 90041,

, this court addressed a similar argument that a

statement made in a letter constituted a stipulation.

UES claims that they relied on this statement, forgoing any attempt to

establish at trial that the hospital was liable on a Clark claim. We do not

find, however, that the statement constitutes a stipulation or judicial

admission that the hospital was “liable in tort.” As recognized by the First

Appellate District in Beneficial Ohio Inc. v. Primero, L.L.C.,

,

,

, judicial admissions

generally constitute either “a distinct statement of fact which is material and competent and which is contained in a pleading[,]” or “admissions of facts

made by attorneys during the progress of a trial[,]” or “admissions of

counsel in motions or other papers filed by them[.]” Here, we cannot say

that a counsel’s single statement in a letter, not filed with the court or

responded to by opposing counsel, satisfies the definition of a judicial

admission or a stipulation. And given the context of the statement, we do

not find that it was reasonable for UES’s counsel to rely on the statement to

his purported detriment.

{¶74} Similarly, in the instant case, the original attorney’s statement in a letter, not

filed with the court or termed a stipulation, does not satisfy the definition of a judicial

admission or stipulation. Therefore, it would not be reasonable to deny Strongsville’s

motion to amend based on an assumption that Jontony relied on this statement.

Waiver of Affirmative Defense

{¶75} Second, Strongsville did not waive the affirmative defense of immunity by

not raising it in its answer.

{¶76} Per Civ.R. 12(H), Strongsville would have waived the defense, had it not

moved to amend its answer pursuant to Civ.R. 15(A), which specifically provides the

opportunity for a party to amend his pleading by leave of court or by written consent of

the adverse party. As stated above, a trial court shall freely give the party leave to

amend when “justice so requires.” I would find justice required granting the motion to

amend. Failure to Appeal Denial of Summary Judgment

{¶77} Third, Strongsville did not waive the affirmative defense of immunity by

failing to appeal the trial court’s denial of its motion for leave to file summary judgment.

[A] summary judgment motion is not the proper format in which to raise an

affirmative defense for the first time in a case. Mossa v. W. Credit Union,

Inc.,

,

(10th Dist. 1992).

Affirmative defenses cannot be asserted for the first time in a motion for

summary judgment. Carmen v. Link (1997),

,

.

Supportive Solutions Training Academy v. Electronic Classroom of Tomorrow, 8th Dist.

Nos. 95022 and 95287,

(“ECOT”).1

{¶78} Jontony attempts to frame this issue in terms of case law regarding the

denial of a motion for summary judgment, in which defendants raised immunity for the

first time. However, in the instant case, Strongsville did not file a motion for summary

judgment but only sought leave to file such a motion to assert the affirmative defense of

immunity. The trial court denied the City leave to file, and summary judgment was not

revisited. Thus, case law regarding motions for summary judgment are not applicable

here because the City could not appeal a motion they were not permitted to file.

{¶79} This court recently dealt with a similar question of first impression in

ECOT, where we stated:

Appeal pending in the Ohio Supreme Court, Case No. 2012-0790. 1 In Hubbell, the Ohio Supreme Court held that “when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C).”

at syllabus.

As this court recognized in the en banc decision in Digiorgio v. City of Cleveland, 8th Dist. No. 95945, [

,]

,

, “although decided in the context of a motion for summary judgment, the Hubbell court made clear that its holding was not limited to only motions for summary judgment.”

. The Ohio Supreme Court held,

We conclude that the use of the words “benefit” and “alleged” illustrates that the scope of this provision is not limited to orders delineating a “final” denial of immunity. R.C. 2744.02(C) defines as final a denial of the “benefit” of an “alleged” immunity, not merely a denial of immunity. Therefore, the plain language of R.C. 2744.02(C) does not require a final denial of immunity before the political subdivision has the right to an interlocutory appeal.

***

Accordingly, we hold that when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C). Hubbell at ¶ 12, 27.

The Hubbell court explained the policy reasons for its broad interpretation of R.C. 2744.02(C) as follows: “As the General Assembly envisioned, the determination of immunity [should] be made prior to investing the time, effort, and expense of the courts, attorneys, parties, and witnesses * * * .” Id. at ¶ 26, quoting Burger v. Cleveland Hts.,

, [

,]

(1999).

However, the question before this court is whether this broad interpretation encompasses motions for leave to file amended responsive pleadings. We find that it does not. We find most significant the cases wherein Hubbell and its progeny are cited and relied on for authority involve dispositional-type motions, i.e., Civ.R. 12(B)(6) motions to dismiss, Civ.R. 12(C) motions for judgment on the pleadings, and Civ.R. 56 motions for summary judgment. See, e.g., Digiorgio; Rucker v. Newburg Hts., 8th Dist. No. 89487,

; Summerville v. Forest Park,

,

,

. To expand Hubbell to include orders such as denial of leave to file amended pleadings or motions would open the door for political subdivisions to challenge all adverse rulings potentially affecting its immunity defense with an immediate appeal. We do not believe Hubbell was intended to be read this broadly.

Id. at ¶ 12-16. The denial of a motion for leave to file summary judgment falls squarely

in line with ECOT. I would argue that, consistent with ECOT, Hubbell cannot be read

so broadly as to encompass the denial of a motion for leave to file summary judgment.

{¶80} Thus, the City has not waived the affirmative defense by failing to appeal

the court’s denial of its motion for leave to file summary judgment.

Untimeliness

{¶81} Fourth, Strongsville’s motion was neither untimely nor was it made with

undue delay.

{¶82} In Turner v. Cent. Local School Dist.,

,

,

, the Ohio Supreme Court ruled that the trial court had abused its

discretion in allowing Central to amend its answer two years and ten months after

litigation had commenced and after discovery was complete.

{¶83} In the instant case, Strongsville filed its motion to amend the answer 11

months after the complaint was filed, ten months after the joint answer was filed, and

within three months of attempting to raise immunity in a motion for summary judgment. The motion to amend was filed five weeks prior to the scheduled trial date of December

28, 2009.2 At the time Strongsville filed the motion to amend, discovery was not yet

complete. Strongsville’s motion for enlargement of time for discovery had been

granted, and discovery was ongoing.

{¶84} I would find the facts in the instant case are clearly distinguishable from

those in Turner, and more similar to those in Midstate Educators Credit Union, Inc. v.

Werner,

,

,

(10th Dist.), in which the

appellate court found no abuse of discretion in granting Midstate’s motion to amend its

answer eight months after litigation began and after a failed attempt at arguing immunity

on summary judgment, similar to the instant case. Id. at ¶ 19.

Unduly Prejudicial

{¶85} Fifth, Strongsville’s motion was not unduly prejudicial.

{¶86} Jontony argues that allowing the City to amend its answer would have

created undue prejudice due to Jontony’s reliance on counsel’s statements that immunity

was not an issue. Jontony argues that they would have been prejudiced based on the

thousands of dollars and hours spent on the case, under the assumption that immunity was

not an issue.

{¶87} Jontony also argues that they would not have dismissed Officer Colegrove

from the action had they known of immunity. This argument is without merit because

he was dismissed voluntarily by Jontony only a month after the complaint was filed,

Trial was ultimately held in June 2011. 2 giving the City a wide window in which to amend their answer and assert immunity for

the City. And immunity was raised in the answer on the officer’s behalf.

{¶88} While it is true that Jontony spent time and money on the case, these alone

are insufficient reasons to deny the City’s motion to amend early in litigation.

Fed.R.Civ.P. 15 reflects two of the most important policies of the federal rules. See 6

Wright & Miller, Federal Practice and Procedure, Section 471, at 359 (1971). First, a

liberal amendment policy provides the maximum opportunity for each claim to be decided

on the merits rather than on procedural deficiencies. Id. (Emphasis added.) Second, the

rule reflects the fact that pleadings are assigned the limited role of providing the parties to

a lawsuit with notice of the nature of the pleader’s claim or defense.

{¶89} Moreover, the merits of the affirmative defense of immunity based on the

“emergency call” doctrine are not clearly established in the instant case. The officer’s

deposition is not dispositive regarding whether his actions would afford the City

immunity. Therefore, the time and money spent by Jontony was not wasted, because the

case might potentially require a trial despite allowing the City to amend its answer. An

amendment to the answer would not necessarily have been dispositive of the City’s

liability.

{¶90} Having argued immunity for Officer Colegrove and other affirmative

defenses for the City, Jontony cannot argue that it was prejudiced by the City’s desire to

amend its answer. Questions to Colegrove in his deposition regarding the call and

whether it was an emergency call support the City’s argument that Jontony suffered no prejudice.

{¶91} It is clear from the record that mistakes were made by Strongsville’s counsel

in its initial handling of this case. However, these mistakes did not prejudice Jontony to

such an extent that the court was within its discretion to deny the City’s motion to amend

its answer. I would find that Jontony was “not prejudiced by the addition of the

[affirmative] defense as [he] faced no obstacles by the amendment which [he] would not

have faced had the original pleading raised the defense.” Hoover v. Sumlin,

,

(1984).

Bad Faith

{¶92} Sixth, there is simply no evidence in the record to support a claim of bad

faith. This is not a case in which the City was hiding facts or defenses from Jontony.

Immunity, as well as numerous other affirmative defenses were raised in Strongsville’s

joint answer. The motion to amend the answer was filed soon after new counsel was

retained. The failure to raise the affirmative defense in the original answer was clearly

not made with malice or purpose to confuse or delay the proceedings.

{¶93} Furthermore, Strongsville’s motion to amend contained its reason for the

original counsel’s failure to argue the affirmative defense, and explained that once the

mistake was discovered, new counsel attempted to correct the matter. Failing to raise

the issue in the original answer was clearly not tactical. {¶94} Thus, due to the lack of delay, bad faith, or prejudice, I would reverse the

trial court for its abuse of discretion in denying Strongsville’s motion to amend its

answer, as justice so requires.