R I ^° IN THE SUPREME COURT OF OHIO DENNIS BIGLER, et al., Plaintiffs-Appellees, Case No. 14-0792 V. PERSONAL SERVICE INSURANCE COMPANY, Defendant-Appellant. Appeal from the Court of Appeals for the Seventh Appellate District Court of Appeals Case No. 12-BE-10 JOINT MEMORANDUM OF PLAINTIFFS/APPELLEES OPPOSING JURISDICTION OVER APPEAL Harry W. White, Esq. (#0015398) Banker & White 151 West Main Street St. Clairsville, OH 43950 Telephone: (740) 695-8881 Fax: (740) 695-8954 [email protected]Counsel for Plainti fs-Appellees Dennis Biglei°, Executor of the Estate of Brian Bigler, Deceased, Howard Bigler and Jean Bigler as Assignees of Donald Cox and James G. Bordas, III, Esq. (#0074071) Bordas & Bordas, PLLC 1358 National Road Wheeling, WV 26003 Telephone: (304) 242-8410 Fax: (304) 242-3936 jbordasIllabordaslaw.com Counsel for Defendant/Third Partv "l^ " - Donald J. Cox and ^^^ ti , Kathi yn G. Cox 120 111 ^d^^^^ MA^^^ ^^ ^^^RT ^^rW'Sou OF ON John W. Zeiger, Esq. (#0010707) Stuart G. Parsell, Esq. (#0063510) Zeiger, Tigges & Little, LLP 41 South High Street, Suite 3500 Columbus, OH 43215 Telephone: (614) 365-9900 Fax: (614) 365-7900 zei er ,litohio.com parsellra `^litohio,com Counsel for- Defendant Appellant Personal Service Insurance Company i ! •' -... _..._N ! : ^ U ^ s <,,,
Transcript
R I ^°
IN THE SUPREME COURT OF OHIO
DENNIS BIGLER, et al.,
Plaintiffs-Appellees, Case No. 14-0792
V.
PERSONAL SERVICE INSURANCE COMPANY,
Defendant-Appellant.
Appeal from the Court of Appealsfor the Seventh Appellate District
Court of AppealsCase No. 12-BE-10
JOINT MEMORANDUM OF PLAINTIFFS/APPELLEES OPPOSINGJURISDICTION OVER APPEAL
Harry W. White, Esq. (#0015398)Banker & White151 West Main StreetSt. Clairsville, OH 43950Telephone: (740) 695-8881Fax: (740) [email protected] for Plainti fs-AppelleesDennis Biglei°, Executor of the Estateof Brian Bigler, Deceased, HowardBigler and Jean Bigler as Assignees ofDonald Cox
and
James G. Bordas, III, Esq. (#0074071)Bordas & Bordas, PLLC1358 National RoadWheeling, WV 26003Telephone: (304) 242-8410Fax: (304) 242-3936jbordasIllabordaslaw.comCounsel for Defendant/Third Partv"l^ " - Donald J. Cox and
^^^ ti , Kathi yn G. Cox
120 111^d^^^^
MA^^^ ^^ ^^^RT^^rW'Sou OF ON
John W. Zeiger, Esq. (#0010707)Stuart G. Parsell, Esq. (#0063510)Zeiger, Tigges & Little, LLP41 South High Street, Suite 3500Columbus, OH 43215Telephone: (614) 365-9900Fax: (614) 365-7900zei er ,litohio.comparsellra litohio,comCounsel for- Defendant AppellantPersonal Service Insurance Company
i ! •' -... _..._N ! : ^
U
^ s <,,,
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .....................................................:....................................... ii
EXPLANATION OF WHY THIS CASE IS NOT OF PUBLIC
OR GREAT GENERAL INTEREST ......................................................................1
STATEMENT OF THE CASE AND FACTS ................................................. ...................3
ARGUMEN"I' IN OPPOSITION TO PSI'S PROPOSITIONS OF LAW ...........................8
Proposition of Law No. I: A judgment awarding noneconomic damages inexcess of the limits set forth in R.C. 2315.18(B)(2) is void for lack ofjurisdiction pursuant to R.C. 2315.18(F), and thus the statutory caps onnoneconomic dainages cannot be waived and may be raised on appeal ..................8
Proposition of Law No. II: A trial court's authority under Civ. R. 51(B)to "acquaint the jury generally with the nature of the case" does not permitthe court to contravene the common-law prohibition against including aparty's recitation of material facts injury instructions so as to give undueprominence to one side of the case . ...................................................... .................11
Proposition of Law No. III: When determining attorney fees to award toa prevailing party, Ohio should follow the United States Supreme Court'slodestar standard in Peydue, which prohibits double counting the factorsset forth in Rule 1.5(a) of the Ohio Rules of Professional Conduct incalculating both a reasonable attorney fee and a multiplier to enhanceattorney fees. (Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662 (2010),foll«we.d,• Bittner v. Tri-CountNy T®yota. Inc., 58 Ohio St.3d 143, 569N.E.2d 464 (1991), anodified.) ...............................................................................13
EXPLANATION OF WHY THIS CASE IS NOT OF PUBLICOR GREAT GENERAL INTEREST
According to the defendant,I Personal Service Insurance Company (PSI), its appeal
presents three questions that are essential to "assure the fair administration of civil justice in
Ohio." Memorandum in Support, at 1. The reality, however, is that none of the questions
presented by PSI were raised previously-not in the trial court in the first instance or in the court
of appeals. In short, PSI is asking this court to accept an appeal where the questions presented
have never been raised, briefed or argued, and where a lower court has never had occasion to
address them. Thus, there is simply no reason for this court to exercise its discretionary
jurisdiction to hear any of these questions.
We may briefly address each of the propositions of law raised in PSI's jurisdictional
memorandum.
PSI's first proposition of law suggests that the trial court lacked jurisdiction to enter a
judgment in excess of the cap on noneconomic damages established by R.C. 2315.18. But this
argument fails for multiple reasons. First, the damage cap does not even apply to this case.
Second, PSI affirmatively waived the issue when it specifically agreed. to the verdict form which
contained a single line for all compensatory damages--economic and noneconomic. Indeed, the
form PSI itself submitted to the court also contained a single line. In short, PSI got exactly what
it asked for. In a related vein, it is impossible to determine if, in fact, the statutory cap was
exceeded because the PSI-approved verdict form did not require the jury to specify the amount
Technically, PSI was joined by Mr. Cox as a third party defendant. Mrs. Cox was anintervening plaintiff in the third party case. For simplicity, we will refer to PSI as the defendantand all other parties as plaintiffs.
1
of noneconomic damages.2 Finally, PSI is wrong in suggesting that any alleged error involving
the cap is a matter of subject matter jurisdiction. The court of common pleas had subject-matter
jurisdiction over this case.
In its second proposition of law, PSI argues that the trial court's instructions setting forth
certain undisputed facts of the case violated a "common law prohibition" and that such
instructions implicate its constitutional right to trial by jury. However, as before, these specific
arguments were raised previously by PSI.3 Trial courts in Ohio have broad discretion under Civ.
R. 51(B) to acquaint the jury with "the nature of the case:" Because PSI does not and, indeed,
camiot legitimately allege that any of the facts recited in the instructions were disputed or false,
the trial court clearly acted within its broad discretion to instruct the jury.
The third proposition of law argues that Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d
143, 569 N.E.2d 464 (1991) should be revised so that, in awarding attorney fees, a trial cour-t
may not use the same factors when calculating the lodestar and enhancing the fee. Like the other
two issues, however, this issue was not raised below. Furthermore, the court of appeals
explicitly found that the fee enhancement here was justified using factors other than those
considered in connection with the lodestar.
2 Thus, PSI's assertion that the verdict exceeded the cap "by at least $3.385 million,"Memorandum in Support, at 2, is pure conjecture because the amount of noneconomic damageswas never determined by the jury as factfinder. In fact, PSI makes no effort to explain how iteven arrived at this figure.
3 PSI complained generally about the instructions. However, at no time did PSI offer anyargument that the instructions violated any common law prohibition or that its constitutionalright to a jury trial was affected.
2
STATEMENT OF THE CASE AND FACTS
On April 10, 2003, a tragic car wreck devastated the Bigler family, taking the life of
Brian Bigler and causing serious, permanent injuries to Howard Bigler. The defendant, Personal
Service Insurance Company (PSI), insured the driver who caused the wreck, Donald Cox and his
wife, Kathryn. But PSI refused to honor its insurance policy with the Coxes, abandoning them
when they were sued over the wreck and subjecting them to a $3,000,000 judgment. The Biglers
obtained a partial assignment of Mr. Cox's claim for bad faitll against PSI and both fatnilies sued
PSI. After a seven-day trial, the jury concluded that PSI's denial of coverage to the Coxes not
only lacked reasonable justification, but was also willful, warranting an award of both
compensatory and punitive damages.
Prior to the April 10, 2003 collision, Donald Cox's driver's license had been suspended
as a result of having twelve or more "points." Mr. Cox paid his fines, completed a driver-safety
class, and then approached Boyle Insurance Agency (Boyle) in St. Clairsville, Ohio, seeking
liability insurance. This was the final step necessary in order to have his driver's license
reinstated. The agent then completed an application. The Coxes fully disclosed Mr. Cox's
license suspension, including his prior traffic violations. The agent acknowledged that the Coxes
were forthcoming and that it was his decision to write "zero" violations on the application-
knowing that PSI would generate a driving report in the near ftiture and calculate the premiums
accordingly. PSI did, in fact, generate a driving report, accepted the Coxes' premiums, and
issued a policy.
After completing the application process, the agent also completed a certificate of
liability insurance coverage known as an SR-22 form. Under Ohio law, an SR-22 is a
certification by an insurer that liability coverage is in effect. R.C. 4509.46. The SR-22 issued to
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Mr. Cox stated that coverage was effective from February 5, 2003, and would continue "until
cancelled or terminated in accordance with the financial responsibility laws and regulations of
this state."
The agent gave one copy of the SR-22 to Mr. Cox which he, in turn, hand-delivered to
the Bureau of Motor Vehicles. The agent also forwarded a copy to PSI. Upon receipt, PSI
mailed this second copy of the form to the BMV for filing. Having completed all of the steps
required by Ohio law, Mr. Cox's driver's license was reinstated. PSI then issued a. policy and a
declarations page.
Sometime in early March, 2003, the Coxes received a notice of cancellation from PSIC
due to an "ineligible risk." Mrs. Cox promptly paid the $5 appeal fee and sent a written appeal
letter to PSI. Both Mr. and Mrs. Cox contacted Boyle regarding the notice and they were assured
that the policy would remain in effect until PSI refunded all of the premiums that had already
been paid. Most importantly, PSI never issued an SR-26 form-a statutorily required form
indicating that it was no longer insuring Mr. Cox. A.ccordingly, as Judge Sargus later found, M.
Cox remained insured as a matter of law.
On April 10, 2003, before PSI refunded Mr. and Mrs. Cox their premium and before
ruling on their appeal, Donald Cox was involved in a head-on collision in rural Belmont County,
Ohio. While on his way to pick up his wife from her job as secretary to the Dean of Belmont
College, and blinded by the sun, Mr. Cox crossed the center line and collided with a car driven
by Brian Bigler, who was killed. Howard Bigler, a passenger in the car, received permanent,
life-altering injuries. Mr. Cox himself received severe injuries as a result of the wreck, including
a brain injury and a resulting coma.
4
The next day Boyle took it upon himself to fax PSI a copy of a newspaper story reporting
the wreck. Boyle also wrote a letter advising the Coxes that they did not have coverage under
their policy-despite all of his agency's prior representations to the contrary. Even though PSI
received prompt notice of the car wreck, no investigation was done. Instead, in an obvious
attempt to avoid liability, PSI returned the Coxes' unearned premiums the next business day after
receiving Boyle's fax.
The Biglers' insurer, Nationwide, paid for the total loss of their vehicle and then filed a
complaint against Mr. and Mrs. Cox alleging that it was subrogated to the Biglers' rights and was
owed over $13,000. In December, 2003, the Coxes' attorney asked PSI to reexamine the
coverage issue and provide a full explanation of why coverage was being denied. PSI again did
no investigation. On December 29, PSIC wrote a short letter repeating its denial of coverage and
closing its file. The attorney wrote again in January, 2004, pointing out that the Coxes had
already been sued by Nationwide and, of course, were also facing a future claim by the Bigler
family. Therefore, a full and prompt investigation of coverage was imperative. As before,
however, PSI did no investigation. In the meantime, Attorney Harry White wrote to PSI on
October 18, 2004, presenting a formal claim on behalf of the Bigler family and demanding
payment of the full policy limits. In return for a policy limits payment, the Biglers were
prepared to give a full and complete release to Mr. Cox. Again, however, PSI refiised to
investigate or take any steps to protect its insured.
On April 1, 2005, the Biglers filed suit against Donald Cox. PSI once again denied
coverage. Therefore, the Coxes proceeded to sue PSI because it failed to extend coverage and
indemnity. The Biglers' claims against Mr. Cox were tried in November, 2007. Judge Sargus
issued an order on January 25, 2008 awarding $3,000,000 in damages to the Bigler family. In
5
February, 2008, Donald Cox assigned a portion of his bad faith claims to the Bigler family in
exchange for their promise to forbear any attempts to enforce the judgment until the bad faith
case was concluded.
The bad faith case then proceeded through discovery and motion practice. The plaintiffs
moved for summary judgment. Judge Sargus granted the plaintiffs' motion, in part, in a May 2,
2011 order. Specifically, Judge Sargus concluded that because the SR-22 was delivered to the
BMV and accepted for filing, it was "filed" within the meaning of the law. Therefore, the policy
could not be cancelled without providing an SR-26 to the BMV. See R.C. 4509.57 ("the
insurance so certified shall not be cancelled or terminated until at least ten days after notice of
cancellation or termination is filed in the office of the Registrar of Motor Vehicles"). Indeed,
Judge Sargus noted that "[i]t has been the law in the State of Ohio since 1953 that insurers who
provide financial responsibility certificates must notify the BMV when cancelling them." From
all of this, a finding was made that "Donald Cox was insured at the time of the accident giving
rise to this claim."
With the coverage issues resolved in the plaintiffs' favor, the bad-faith claims against PSI
proceeded to trial in January, 2012.
At no point did PSI raise any issues involving tort reform or the application of R.C.
2315.18. The trial court prepared a verdict form and interrogatories that included a single line
for compensatory damages. In this regard, the verdict form was the same as the one actually
submitted by PSI. Accordingly, PSI did not object.
The parties also participated in a lengthy conference regarding jury instructions. The
court included a limited number of factual statements that were offered by both parties. PSI
made a general objection to the plaintiffs facts, but did not allege--then or now--that any of the
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facts incorporated into the jury instructions were disputed or inaccurate. PSI offered multiple
suggestions for revising the language of these factual statements which were adopted by the trial
court almost without exception.
The case was submitted to the jury on January 26, 2012. The jury found that PSI acted
without reasonable justification, awarding $8,000,000 in compensatory damages and $2,000,000
in punitive damages. In addition, the jury found that the plaintiffs were entitled to an award of
attorney fees. The court then entered judgment according to the percentages set forth in Mr.
Cox's assignment. Thus, judgment was entered in the following amounts: $4,500,000 to the
Bigler family; $3,000,000 to Mr. Cox; and $2,500,000 to Mrs. Cox. Thereafter, the court
conducted an attorney-fee hearing. On July 6, 2012, the court entered an order awarding fees
and costs in the total amount of $1,339,651.53.
PSI appealed to the Seventh Appellate District. PSI's appellate brief raised twelve
discrete assignments of error. Again, however, no tort reform issues were raised. PSI objected
generally to the recitation of facts in the jury instructions, but made no argumeints citing the
constitutional right to a jury or any common law prohibition. With regard to the award of
attorney fees, PSI complained that the award was too high but made no objection regarding the
trial court's methodology. In a 58-page opinion, the court of appeals unanimously affirmed each
and every ruling of the trial court.
PSI then moved for reconsideration. Again, PSI did not make any of the arguments it
now urges in appealing to this court. In a five-page order, the court of appeals unanimously
denied PSI's reconsideration motion.
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ARGUMENT IN OPPOSITION T® PSI'S PROPOSITIONS OF LAW
Proposition of Law No. I: A judgment awarding noneconomic damages in excessof the limits set forth in R.C. 2315.18(B)(2) is void for lack of jurisdictionpursuant to R.C. 2315.18(F), and thus the statutory caps on noneconomicdamages cannot be waived and may be raised on appeal.
PSI's first proposition of law relates to the cap on noneconomic damages found in R.C.
2315.18. Because PSI has never raised this issue previously, it has never explained its rationale
for applying the cap. The fact of the matter is that R.C. 2315.18 does not apply for at least two
reasons.
First, under settled law, R.C. 2315.18 can only be applied prospectively. R.C. 1.48; see
also Van Fossen v. Babcock and Wilcox Co., 36 Ohio St.3d 100, 105, 522 N.E.2d 489 (1988)("it
is well settled law that statutes are presumed to apply prospectively unless expressly declared to
be retroactive"). Even PSI concedes that the cap would apply only to "tort actions filed after
[the] effective date" of the new legislation, i.e., April 7, 2005. Memorandum in Support, at 10.
In this case, there was only one "action" that was ever filed--the underlying action brought by the
Biglers against the defendant, Donald Cox. All of the other claims, including the bad faith
claims, were asserted within the context of the Bigler "action." It is undisputed that the Biglers
filed their action in advance of April 7, 2005. Court of Common Pleas, Docket No. 1.
Accordingly, the damage cap does not apply.
Second, by its express terms R.C. 2315.18 only applies to "tort actions." There are cases
recognizing as a general matter that bad faith cases lie in tort, e.g., Hoskins vs. Aetna Life Ins.
Co., 6 Ohio St.3d 272, 452 N.E.2d 1315 (1983), but for purposes of the damage cap the General
Assembly has drawn a distinction between cases arising out of tort and cases arising out of
contract. R.C. 2315.18(A)(7)(explaining that tort actions do not include any actions "for damages
for breach of contract or another agreement between persons"). Any claim for bad faith has its
8
genesis in the underlying insurance policy. Indeed, the entire claim is premised on the breach of
a covenant itnplied by law in the policy itself. See, e.g., Eastham v. Nationwide Mut. Ins. Co., 66
Ohio App.3d 843, 586 N.E.2d 1131, 1133 (Ohio App.Ct.1.990)("We believe that liability for bad
faith must be strictly tied to the implied-in-law covenant of good faith and fair dealing arising out
of the underlying contractual relationship"). Here, the allegations in the pleadings confirm that
PSI issued a policy of insurance and by its conduct breached the implied covenant of good faith
and fair dealing. Third Party Complaint, at 8, 18 Accordingly, the bad faith claim is a breach-
of-contract claim for purposes of R.C. 2315.18.
But beyond the threshold issue of whether the cap applies in this particular case stands
another, niore iinposing hurdle for PSI--i.e., waiver. Not surprisingly, it is longstanding law in
Ohio that appellate courts will not consider an error that a party "could have called, but did not
call, to the trial court's attention at a time when such error could havebeen avoided or
corrected." State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960). So, too, this court will
not consider legal issues that have not been properly raised and addressed by the court of
appeals. See, e.g., State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977)("the Supreme
Court will not ordinarily consider a claim or error that was not raised in any `vay in the court of
appeals and was not considered or decided by that court"); State v. Carroll, 74 Ohio St.3d 229,
658 N.E.2d 269 (1996).
The verdict form and interrogatories used by the trial court did not require the jury to
specify the amount of noneconomic damages pursuant to R.C.2315.18(D). Instead, there was a
single line for all compensatory damages. Importantly, PSI did not object to the verdict form.
Indeed, PSI approved this portion of the verdict form as to content and format and offered a form
of its own that was substantially the same. Tr. 1221. Not only did PSI fail to object at the trial
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stage, it also failed to raise the issue in its posttrial motions, in its appeal to the Seventh
Appellate District, or in its motion for reconsideration. It was not until PSI retained new counsel
to prepare an appeal to this court that the issue was ever raised. Under fundamental, bedrock
Ohio law, the effect of PSI's failure to properly preserve this issue is a waiver of any alleged
error.
Citing the language of the R.C. 2315.18(F)(1), PSI tries to avoid waiver by claiming that
the trial court's error was jurisdictional in nature. Indeed, PSI goes so far as to say that the
judgment was actually void ab initio. Memorandum in Support, at 11-12. But PSI grossly
inisstates the law. To be sure, the very case PSI cites in its brief makes it abundantly clear that
the error, if any, was not "jurisdictional" at all in any proper sense of the word. Pr•atts v. Hurley,
102 Ohio St.3d 81, 806 N.E.2d 992 (2004).
Pratts says that subject matter jurisdiction "is a court's power over a type of case. It is
determined as a matter of law and, once conferred, it remains." 102 Ohio St.3d at 88, 806
N.E.2d at 1000. Where a trial court lacks subject matter jurisdiction, it is powerless to proceed.
As Pratts itself says, vvhere subject matter jurisdiction is lacking a trial court "lacks the authority
to do anything but announce its lack of jurisdiction and dismiss." 102 Ohio St.3d at 85-86, 806
N.E.2d at 998.
It is also possible for a trial court to err in the exercise of its jurisdiction over a particular
case. From time to time this is referred to as "jurisdiction," but this is a misnomer. The
distinction is critical: "It is only when the trial court lacks subject matter jurisdiction that its
judgnient is void; lack of jurisdiction over the particular case merely renders the judgment
voicdczble." 102 Ohio St.3d at 84, 806 N.E.2d at 996 (emphasis added). When the judgment is
voidable, "there is an adequate remedy at law by way of direct appeal." Id. In other words,
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where the error is not one affecting the court's subject matter jurisdiction, it remains the
obligation of the affected party to preserve the error in a proper and timely manner and to raise it
through the appellate process. The failure to do so constitutes a waiver. See, e,g., In Re J.J., 111
Ohio St.3d 205, 208, 855 N.E.2d 851 (2006)(where a judgment is merely voidable, RNatts
"establish[es] the duty of a complaining party seeking review to object in the trial court and
timely preserve the error for appeal").
PSI has no credible argument that the trial court lacks subject matter jurisdiction. There
is no doubt that the common pleas courts of Ohio have jurisdiction over breach of the implied
covenant cases. PSI's complaint, instead, is that the trial court erred in exercising its jurisdiction
in this particular case--specifically, by failing to impose the cap under R.C. 2315.18. But this
error, at most, rendered the trial court's judgment voidable. Therefore, PSI's remedy was to
preserve the alleged error and seek review through the ordinary channels of appeal. In short,
Pratts does nothing to help PSI's cause and, instead, seals its fate. By failing to timely object to
the trial court's verdict form and by failing to asset this alleged error through the appellate
process, any error has been waived. For any or all of these reasons, this court should refuse to
exercise its discretionary jurisdiction
Proposition of Law No. II: A trial court's authority under Civ.R. 51(B) to"acquaint the jury generally with the nature of the case" does not permit the courtto contravene the common-law prohibition against including a party's recitationof material facts in jury instructions so as to give undue prominence to one side ofthe case.
In its next proposition of law, PSI alleges that Civ. R. 51(B) is effectively trumped by
what it characterizes as a "common law prohibition against including a party's recitation of
material facts in jury instructions so as to give undue prominence to one side of the case."
11
Memorandum in Support, at 12. PSI then suggests a wholly novel contention that the alleged
instructional errors violated its right to trial by jury, all the while conceding that the instructions
were accurate. Id., at 14.
As before, however, neither of these arguments was raised in the proceedings below. PSI
merely objected generally to the trial court's instructions without ever citing any "common law
prohibition." Moreover, PSI most certainly never raised any issue of constitutional proportions.
For that matter, the two cases that provide foundational support for PSI's newfound argument
were never cited in any of its prior briefs. Thus, under Glaros, Williams and Carol, the alleged
error is waived.
In any event, PSI misconstrues the nature of the instructions themselves and of the
appeals court's rulings. Importantly, the factual recitation consisted of only three cnrt of twenty-
one pages of instructions. Furthermore, the facts were prefaced with a statement that they were
facts "rel[ied] upon" by the plaintiff and they were balanced with a similar statement of facts by
the defendant, PSI.
But the most important thing omitted from PSI's brief is this--i.e., PSI has never argued
that the facts set forth in the instructions "were disputed or were incorrect." Op, at ¶¶142, 147.
Instead, PSI's complaint to the court of appeals was simply that the instructions were written in a
way that favored the plaintiffs. It is difficult to imagine how PSI could possibly have been
prejudiced by reciting, in a complex case, facts that were truthfiil on their face. Furthermore, as
the appeals court noted, trial courts in. Ohio have broad discretion regarding the wording of their
instructions and "acquainting the jury with the nature of the case." Op., at T146.
T'he court of appeals also took note of PSI's "significant...participation" in redrafting the
instructions. Op., at ^147. Nearly ten pages of the trial transcript are devoted to this portion of
12
the jury instructions. PSI offered a host of language changes which were adopted, almost
without exception, by the trial court. Even though this did not amount to a waiver, the appeals
court was unanimously convinced that PSI's "significant...participation" in the drafting process
was sufficient to "temper any prejudice which could have arisen." Thus, the trial court acted
appropriately and within the discretion provided by the Civil Rules. There is no issue presented
that would have any statewide interest or impact.
Proposition of Law No. III: When determining attorney fees to award to aprevailing party, Ohio should follow the United States Supreme Court's lodestarstandard in Perdue, which prohibits double counting the factors set forth in Rule1.5(a) of the Ohio Rules of Professional Conduct in calculating both a reasonableattorney fee and a multiplier to enhance attorney fees. (Perdue v. Kenny A., 559U.S. 542, 130 S.Ct. 1662 (2010), followed; Bittner v. Tri-County Toyota, Inc., 58Ohio St.3d 143, 569 N.E.2d 464 (1991), rnodified.)
PSI's third proposition of law relates to the calculation of attorney fees. According to
PSI, Ohio's case law permits a trial court to enhance a fee award by considering the same factors
that were used in calculating the lodestar. This, it claims, results in a potential for "double
recovery." See generally Bittner v. Tri-County Tayota, Inc., 58 Ohio St.3d 143, 569 N.E.2d 464
(1991)a PSI asks this court to follow Perdue v. Kenny, A., 559 U.S. 542 (2010), which requires a
fee enhancement to be based on other factors.
True to form, however, PSI did not raise this issue below. In fact, PSI never even cited
Perdue in any of its prior briefing--a case which, of course, it now cites liberally. PSI challenged
many aspects of the plaintiff's fee request below, including the number of hours, hourly rate, etc.
But it never argued that Ohio's method for enhancing an attorney fee was improper or that it
should be revised to correspond with federal law.
13
Even if PSI had preserved this issue for a review, it is wrong to suggest that there was
any double recovery of fees in this particular case.4 In fact, the appeals court used two
alternative methods for reviewing the fee enhancement--one that used the lodestar factors and
one, like Pei°due, that specifically omitted those factors. In this regard, the appeals court noted:
"[E]ven if we refrain from focusing on items that were likely used to construct the initial lodestar
(as suggested by the United States Supreme Court), other important factors remain to justify the
multiplier." Op., at ¶214. The court then proceeded to spend a page and a half addressing other,
non-lodestar factors that supported the fee enhancement. Op., at ¶¶214-18. Thus, PSI is simply
wrong in saying that the Seventh Appellate District "relied on Bittner as the basis for considering
[the] same factors to justifv a 100% multiplier to the lodestar." Memorandum in Support, at 1.5.
Instead, the appeals court unanimously affirmed the enhancement of the fee using Perdue 's
methodology. Because the appeals court reviewed the fee award consistently with Perdue, any
conflict between Bittner and Perdue is simply illusory. I,herefore, no issue is presented
waiTanting this court's exercise of its discretionary jurisdiction.
4 PSI also suggests that the lodestar used by the trial court was "double the market rate inBelmont County" and that by using a 2.0 enhancement the fee "was actually jbur times the goingrate in that locality." Memorandum in Support, at 14-15. PSI cites nothing to support thisoutrageous argument. As the appeals court noted, the $400 hourly rate "was corroborated by theplaintiff's expert, especially in view of the complexity of the case, and was also consistent withother fee awards in the locality." Op., at ¶¶208-09.
14
CONCLUSION
For the foregoing reasons, PSI's appeal raises no issue of public or great general interest.
Accordingly, this court should refuse to exercise its discretionary jurisdiction.
Re.
By:
151 W. Main StreetSt. Clairsville, OH 43950Counsel for Plaintiffs-Appellees,Dennis Bigler, Executor of theEstate oj'Brian BigleN, Deceased,and Howard Bigler and Jean Biglerand.
James G. Bordas III #0074071Scott S. Blass #0062556BORDAS & BORDAS, PLLC1358 National RoadWheeling, WV 26003'Telephone: (304) 242-8410Counsel foN Defendant/Third PartyPlaintiffs-Appellees Donald J. Cox andIntervening Plaintiff Kathryn C. Cox
15
CERTIFICATE OF SERVICE
Service of the foregoing JOIN'T MEMORANDUM OF PLAINTIFFS/APPELLEES
OPPOSING JURISDICTION OVER APPEAL was had upon counsel of record herein by
mailing a true copy thereof, by regular United States Mail, postage prepaid, this 12th day of
June, 2014, as follows:
John W. Zeiger, Esq. (#0010707)Stuart G. Parsell, Esq. (#0063510)Zeiger, Tigges & Little, LLP41 South High Street, Suite 3500Columbus, OH 43215Telephone: (614) 365-9900Fax: (614) 365-7900zei era,litohio.comarsellglitoliio.com
Counsel for Defendant-AppellantPersonal Service Insurance Company
By:
Harry W. White, Esquire151 W. Main StreetSt. Clairsville, OH 43950Counsel for Plaintiffs-Appellees,Dennis Bigler, Executor of f theEstate of Br°ian Bigler, Deceased,and Howard Biglev° and Jean Bigler
and
James G. Bordas III #0074071Scott S. Blass #0062556BORDAS & BORDAS, PLLC1358 National RoadWheeling, WV 26003Telephone: (304) 242-8410Counsel for Defendant/Third PaqyPlaintiffs -Appellees Donald J. Cox andIntervening Plaintiff Kathryn G. Cox
