napier v. ickes - supremecourt.ohio.gov · licking county, case no. 2018 ca 00081 2 delaney, j....

[Cite as Napier v. Ickes, 2019-Ohio-2700.]

COURT OF APPEALS LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

KATHERINE NAPIER, ET AL. : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 2018 CA 00081 : TERRY D. ICKES, ET AL. : : : Defendants-Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of

Common Pleas, Case No. 2013 CV 00217

JUDGMENT: AFFIRMED DATE OF JUDGMENT ENTRY: June 27, 2019 APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: SCOTT ELLIOT SMITH WILLIAM SCOTT LAVELLE BRIAN R. NOETHLICH JOHN A. FIOCCA, JR. 5003 Horizons Dr., Suite 100 41 S. High St., Suite 2300 Columbus, OH 43220 Columbus, OH 43215 BARRY W. LITTRELL 471 East Broad St., 19th Floor Columbus, OH 43215-3872 JOHN F. MCLAUGHLIN 600 Vine Street, Suite 2650 Cincinnati, OH 45202 TODD M. ZIMMERMAN 405 Madison Ave., 8th Floor Toledo, OH 43604-1243

Licking County, Case No. 2018 CA 00081 2

Delaney, J.

{¶1} Plaintiff-Appellant Frederick Alex Napier appeals various judgment entries

issued by the Licking County Court of Common Pleas in Case No. 2013 CV 00217.

Defendants-Appellees are Terry Ickes, State Farm Fire and Casualty Company, and

Hunter Gray.

FACTS AND PROCEDURAL HISTORY

The Incident

{¶2} On March 3, 2012, a group of teenagers were gathered at the home of

Defendant-Appellee/Third-Party Plaintiff Terry Ickes. The group included Plaintiff-

Appellant Frederick Napier and Defendant-Appellee Hunter Gray. Ickes owned shotguns

and shotgun shells. One of the boys, Third-Party Defendant Brady Watters, removed the

metal shot from one of the 12-gauge shotgun shells so that the shell would fire with only

the plastic wad for a projectile. With the metal shot removed, all that remained in the

shotgun shell casing was the wad, primer, and gunpowder. The group of boys

occasionally removed the metal shot from shotgun shells for the purpose of shooting the

wads at each other.

{¶3} Watters gave the altered shotgun shell to Gray and Gray loaded the

shotgun shell into one of Ickes’s 12-gauge shotguns. To avoid being shot, Napier ran

from Ickes’s house and locked himself in Ickes’s truck. The group of boys followed Napier

outside. Austin Phillips unlocked the passenger door to the truck. Gray, standing ten to

fifteen yards away, shot Napier in the leg with the altered shotgun shell. The plastic wad

from the altered shotgun shell embedded in Napier’s leg and caused a bleeding wound.


{¶4} Napier was taken to the emergency room. His injury required admission to

the hospital and two surgeries.

The Pleadings

{¶5} On February 28, 2003, Katherine Napier, individually and as guardian of

Frederick Alex Napier, and Steve Napier filed a complaint against Terry Ickes, Jerry Ickes

(Terry’s father), and Gray in the Licking County Court of Common Pleas.

{¶6} On July 23, 2013, Napier filed his First Amended Complaint. The First

Amended Complaint added additional defendants Rose Ickes (Terry’s mother); Elizabeth

and Barry Phillips, individually and as mother and father and legal guardians of Austin

Phillips, a minor; and Suzanne Peters, mother and legal guardian of Brady Watters.

{¶7} Napier dismissed Suzanne Peters on November 21, 2013.

{¶8} On April 4, 2014, Napier dismissed Rose Ickes pursuant to Civ.R. 41(A).

{¶9} On April 25, 2014, Napier filed his Second Amended Complaint naming

Frederick Alex Napier as the sole plaintiff and removed Suzanne Peters as a defendant.

{¶10} Ickes filed a motion for leave to file a third-party complaint on April 30, 2014,

which the trial court granted. Ickes named Watters as a third-party defendant.

{¶11} On May 28, 2014, Napier filed a notice of dismissal without prejudice

dismissing Jerry Ickes.

State Farm and Hunter Gray – The Homeowners Insurance Policy

{¶12} On April 4, 2014, State Farm Fire and Casualty Company filed a Motion to

Intervene. State Farm provided homeowners insurance to the parents of Hunter Gray.

The trial court granted State Farm’s motion to intervene on April 7, 2014.


{¶13} On May 22, 2014, State Farm, as Intervening Plaintiff, filed an intervening

complaint seeking declaratory judgment that, under the terms of the homeowners

insurance policy issued to the parents of Gray, it owed no duty to defend or indemnify

Gray. Gray answered the intervening complaint on June 3, 2014.

{¶14} State Farm filed its Motion for Summary Judgment on July 20, 2014, arguing

there was no genuine issue of material fact that under the terms of the homeowners

insurance policy issued to the parents of Hunter Gray, State Farm had no duty to defend

or indemnify Gray for the incident. State Farm contended the policy excluded coverage

for “bodily injury or property damage: (1) which is either expected or intended by the

insured; or (2) which is the result of willful and malicious acts of the insured.” Based on

the deposition testimony of Gray, State Farm argued Gray intended to injure Napier and

his act was therefore excluded under the expected or intended injury exception found

within the policy. Napier filed his own motion for summary judgment on July 30, 2014.

{¶15} By judgment entry issued on October 1, 2014, the trial court granted State

Farm’s motion for summary judgment. The trial court reviewed the relevant case law

analyzing the expected or intended injury exception. It found the Civ.R. 56 evidence

demonstrated Gray did not intend Napier to suffer the exact injury that occurred, but Gray

intended to harm Napier. Gray knew if he shot Napier with the plastic wad, he would get

a rise out of Napier and cause a sting or welt. The trial court found the expected or

intended injury exclusion applied if the insured intended to do some harm, even if the

harm is different than intended. The trial court found the harm to Napier was not accidental

and was therefore not an “occurrence” as defined by the policy. The exclusion for bodily


injury that is expected or intended precluded coverage for Gray under the State Farm

policy.

Napier and Gray – The Consent Judgment

{¶16} On April 3, 2018, Napier and Gray entered into a Consent Judgment. The

agreement constituted the full resolution of Napier’s claims against Gray as a result of the

injuries Napier suffered on March 3, 2012. Gray agreed to pay Napier $750,000.00 plus

interest.

{¶17} Napier dismissed his claims against Gray with prejudice.

Napier and Austin Phillips – The Motion to Amend Complaint

{¶18} On March 6, 2017, Napier filed a Motion for Leave to File a Third Amended

Complaint. He requested the trial court leave to amend his complaint to remove Elizabeth

and Barry Phillips as defendants because Austin Phillips had reached the age of majority.

He argued pursuant to Civ.R. 15(A) and (C) he should be permitted to amend his

complaint to substitute Austin Phillips.

{¶19} The trial court denied Napier’s motion for leave to file a third amended

complaint on April 10, 2017. The trial court found that Napier’s reliance on Civ.R. 15(C)

for support of his motion was misplaced. Civ.R. 15(C) states the plaintiff knew or should

have known, but for a mistake concerning the identity of the proper party, the action would

have been brought against him. In this case, Napier knew the identity of Austin Phillips

and failed to name or serve him as a defendant in the action.

{¶20} Elizabeth and Barry Phillips filed a Motion for Clarification on May 22, 2017,

requesting the trial court clarify whether Austin Phillips was a defendant in the action. On

July 5, 2017, the trial court ruled that Austin Phillips was not a defendant.


{¶21} On September 11, 2017, Napier dismissed Elizabeth and Barry Phillips from

the action, without prejudice.

Napier and Ickes – The Jury Trial

{¶22} Napier went forward with a jury trial against Ickes from April 3, 2018 to April

6, 2018. The jury awarded a judgment in favor of Napier and against Ickes in the amount

of $1,250,000 in noneconomic damages, $1000 in punitive damages, and reasonable

attorney fees. The jury apportioned the liability: 55% as to Ickes; 35% as to Gray; and

10% as to Phillips. The trial court memorialized the verdict via judgment entry on April 10,

2018.

{¶23} Ickes filed a Motion for New Trial, Motion for Remittitur, Judgment

Notwithstanding the Verdict, and application of R.C. 2315.18(B). An oral hearing was held

on the motions. The trial court granted Ickes’s motion to reduce the verdict pursuant to

R.C. 2315.18. It found there was no finding by the jury that Napier suffered from a

permanent or substantial physical deformity, loss of use of a limb, or loss of a bodily organ

system or permanent physical functional injury that permanently prevents the injured

person from being able to independently care for self and perform life sustaining activities.

The trial court found the evidence demonstrated Ickes had recovered from his injury and

suffered from restless leg syndrome and some persistent pain from nerve damage. The

trial court applied the cap on compensatory damages under R.C. 2315.18 and reduced

the verdict or capped the amount to $250,000. Because the jury found Ickes 55%

responsible for the cause of Napier’s injury, the award in favor of Napier was $137,500.


Napier and Ickes – The Mutual Release of Claims

{¶24} On May 29, 2018, Napier, Ickes, and Nationwide Mutual Insurance

Company entered into a Mutual Release of Claims. The Mutual Release of Claims stated

as follows:

For and in consideration of the payment to me, Frederick Alex Napier * * *

herein, of ($300,000) three hundred thousand dollars, plus court costs as

outlined in R.C. 2303.21 and Civ.R. 54(D) that pertain to prosecuting the

claim against Terry Ickes, up to ($10,000) ten thousand dollars, the receipt

and sufficiency of which is acknowledged in exchange for the executed

release, Frederick Alex Napier * * *, does hereby release and discharge,

Terry Ickes and Nationwide Mutual Insurance Company, * * *

{¶25} On June 8, 2018, Napier filed a Motion to Enforce Settlement between

Napier, Ickes, and Nationwide Mutual Insurance Company. Napier stated Ickes and his

insurer failed to pay him $10,000 in court costs. As part of the court costs, Napier

demanded $5,000 in costs for paralegal services during the jury trial, including video

deposition playback at trial. On August 8, 2018, the trial court considered the evidence

presented as to costs and awarded Napier $5,043.07. Included in that award was $600

for paralegal costs. The trial court issued a judgment entry on August 27, 2018 making

the August 8, 2018 judgment entry a final, appealable judgment.

{¶26} On September 7, 2018, Napier filed an appeal of the October 1, 2014; April

10, 2017; July 5, 2017; May 11, 2018; August 8, 2018; and August 27, 2018 judgment

entries.


ASSIGNMENTS OF ERROR

{¶27} Napier raises five Assignments of Error:

{¶28} “I. THE TRIAL COURT ERRED IN FINDING THAT STATE FARM'S

POLICY DID NOT COVER HUNTER GRAY'S ACT OF SHOOTING NAPIER WITH A

SHOTGUN LOADED WITH A BLANK SHELL, ACCIDENTLY CAUSING SEVERE

INJURIES THAT GRAY DID NOT INTEND OR EXPECT.

{¶29} “II. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT AUSTIN

PHILLIPS WAS NOT A DEFENDANT IN THE CASE, OR IN THE ALTERNATIVE,

ERRED WHEN IT DENIED NAPIER'S MOTION TO SUBSTITUTE AUSTIN PHILLIPS

AS A DEFENDANT.

{¶30} “III. THE TRIAL COURT ERRED IN APPLYING R.C. 2315.18(B)'S CAP ON

NONECONOMIC DAMAGES TO THE JURY VERDICT.

{¶31} “IV. EVEN IF APPLICATION OF R.C. 2315.18(B)'S CAP ON

NONECONOMIC DAMAGES WERE PROPER, THE TRIAL COURT ERRED IN

APPLYING THE CAP PRIOR TO APPORTIONING LIABILITY UNDER R.C. 2315.25 IN

ACCORDANCE WITH THE JURY'S VERDICT.

{¶32} “V. THE TRIAL COURT ERRED WHEN IT ARBITRARILY REDUCED THE

AMOUNT OF COSTS ICKES OWED NAPIER UNDER THE PARTIES' MUTUAL

RELEASE OF CLAIMS.”


ANALYSIS

I. State Farm’s Motion for Summary Judgment

{¶33} Napier argues in his first Assignment of Error that the trial court erred when

it granted State Farm’s Motion for Summary Judgment, finding that pursuant to the terms

of the homeowner’s insurance policy, the policy precluded liability coverage for the

incident. We disagree.

Standard of Review

{¶34} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case and written stipulations of fact, if any, timely

filed in the action, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law. * *

* A summary judgment shall not be rendered unless it appears from such

evidence or stipulation and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is

made, such party being entitled to have the evidence or stipulation

construed most strongly in the party's favor.

{¶35} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element of


the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest

on the allegations or denials in the pleadings, but must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶36} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

{¶37} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

General Insurance Contract Principles

{¶38} An insurance policy is a contract between the insurer and the insured. G &

K Mgt. Servs., Inc. v. Owners Ins. Co., 2014-Ohio-5497, 24 N.E.3d 1230 (5th Dist.), ¶ 19

citing Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 482, 2006-

Ohio-6551, 861 N.E.2d 121, ¶ 23. Whether a claim is covered under the terms of the

insurance policy, it is a question of law for the court to decide. Generally, courts interpret

insurance policies in accordance with the same rules applied in interpreting other types

of contracts. Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665,

597 N.E.2d 1096 (1992).


{¶39} In interpreting the contract, a court is to give effect to the intent of the parties

to the agreement. Steinborn v. Farmers Ins. of Columbus, Inc., 5th Dist. Stark No.

2018CA00128, 2019-Ohio-1745, 2019 WL 2027216, ¶ 39 citing Erie Ins. Exchange v.

Bullock, 2015-Ohio-5406, 55 N.E.3d 460 (5th Dist.), ¶ 24, citing Chicago Title Ins. Co. v.

Huntington Nat'l Bank, 87 Ohio St.3d 270, 719 N.E.2d 955 (1999), citing Westfield Ins.

Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. In doing so, “[w]e

examine the insurance contract as a whole and presume that the intent of the parties is

reflected in the language used in the policy. We look to the plain and ordinary meaning of

language used in the policy unless another meaning is clearly apparent from the contents

of the policy. When the language of a written contract is clear, a court may look no further

than the writing itself to find the intent of the parties.” Id. The general rule of liberal

construction cannot be employed to create an ambiguity where there is none. Progressive

Max Ins. Co. v. Grange Mut. Cas. Co., 8th Dist. Cuyahoga No. 81656, 2003-Ohio-4564,

2003 WL 22019604, ¶ 16. “Only where a contract of insurance is ambiguous and,

therefore, reasonably susceptible to more than one meaning must the policy language be

construed liberally in favor of the insured who seeks coverage and strictly against the

insurer who drafts the instrument.” Id at ¶ 17.

State Farm’s Homeowners Policy Language

{¶40} The Ohio Supreme Court has held, “[i]t is axiomatic that an insurance

company is under no obligation to its insured, or to others harmed by the actions of an

insured, unless the conduct alleged of the insured falls within the coverage of the policy.”

Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312, 942 N.E.2d 1090, ¶

8 quoting Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34, 36, 665 N.E.2d 1115 (1996).


“Coverage is provided if the conduct falls within the scope of the coverage defined in the

policy, and not within an exception thereto.” Id.

{¶41} State Farm issued a homeowners insurance policy to Julie and Jimmy Gray,

the mother and father of Hunter Gray. The policy was effective on the date of the incident,

March 3, 2012. The policy covered Hunter Gray because he was a member of his parents’

household.

{¶42} The State Farm homeowners policy provides liability coverage “[i]f a claim

is made or a suit is brought against any insured for damages because of bodily injury or

property damage to which this coverage applies, caused by an occurrence.” The State

Farm homeowner’s insurance policy contains an “intentional injury exclusion” and a

“willful and malicious acts exclusion.” The policy states:

Section II – LIABILITY COVERAGES

Section II – EXCLUSIONS

1. Coverage L and Coverage M do not apply to:

a. bodily injury or property damage:

(1) which is either expected or intended by the insured; or

(2) which is the result of willful and malicious acts of the

insured;

* * *

{¶43} The policy provides the following definitions:

1. “bodily injury” means physical injury, sickness, or disease to a person.

This includes required care, loss of services and death resulting therefrom.

Bodily Injury does not include:


a. any of the following which are communicable: disease, bacteria,

parasite, virus, or other organism, any of which are transmitted by an

insured to any other person;

b. the exposure to any such disease, bacteria, parasite, virus, or

other organism by an insured to any other person; or

c. emotional distress, mental anguish, humiliation, mental distress,

mental injury, or any similar injury unless it arises out of actual

physical injury to some person.

7. “occurrence”, when used in Section II of this policy, means an accident,

including exposure to conditions, which results in:

a. bodily injury; or

b. property damage;

during the policy period. Repeated or continuous exposure to the same

general conditions is considered to be one occurrence.

8. “property damage” means physical damage to or destruction of tangible

property, including loss of use of this property. Theft or conversion of

property by any insured is not property damage.

* * *

The Deposition of Hunter Gray

{¶44} On December 3, 2012, State Farm informed Gray it was not liable for the

incident on March 3, 2012 because the incident would be considered bodily injury that is

expected or intended by the insured. State Farm’s motion for summary judgment also

argued that based on its exclusionary policy language, it would not cover harm expected


or intended by the insured. In support of its motion for summary judgment, State Farm

provided the deposition testimony of Hunter Gray to demonstrate bodily injury to Napier

was expected or intended by Gray.

{¶45} Gray testified he had prior experience with shotguns, including a hunter

safety course. (Depo. 41). He had been warned not to point or shoot guns at anyone

because of the risk that someone could get hurt. (Depo. 42). Gray described the wad he

shot at Napier:

Q. If you could, the wad that Brady made, can you describe the dimensions

of it for me?

A. It was about – I’d say about inch, inch and a half long. Probably about –

I don’t know. I don’t know how big around it was.

Q. How about using your thumb as a – Your thumb or a little bit larger than

your thumb in diameter?

A. I’d say probably about the size of your pointer finger.

Q. Was the base of the wad, was that made of brass?

A. No, sir. That’s the outside of the casing. The wad is just the plastic piece

that’s inside of the casing.

* * *

Q. So the projectile that was shot, the wad itself, is all hard plastic?

A. Yes, sir.

(Depo. 43-44).

{¶46} Gray described his personal experience when he was shot with a 12-gauge

shotgun loaded with a wad from ten to fifteen yards away:


Q. * * * Have you ever been shot by a wad?

A. Yes, sir.

Q. When were you shot by a wad?

A. Before this incident.

* * *

Q. Where were you shot?

A. In the lower body, legs, leg area.

Q. Did it sting?

A. Yes, sir.

Q. Did it cause a welt?

A. Yes, sir.

Q. How long did it take the welt to subside?

A. Just a day.

(Depo. 46-47).

{¶47} A few months before he shot Napier, Gray had used a 12-gauge shotgun

to shoot a wad at another person. (Depo. 23). Gray was approximately 15 yards away

from the person and shot them in the leg. (Depo. 23-24). After he shot the person with

the wad, he saw it caused a welt and it stung the person. (Depo. 24). The wad did not

break the person’s skin. (Depo. 24).

{¶48} Gray described shooting Napier on March 3, 2012:

Q. And then Austin was successful in unlocking the door, opening the

passenger door, and that’s when you shot the gun?

A. Yes, that is when I fired.


Q. And what part of Alex did you shoot at?

A. The leg.

Q. Okay. Why the leg?

A. Because I didn’t want to hurt him.

Q. All right. So the fact that he was hurt and injured was a surprise to you.

Is that accurate?

A. Yes, sir.

* * *

Q. Is it my understanding – or is it your testimony that you didn’t think you

would harm him as a result of shooting the wad?

A. Yes, sir. I did not think I would – I didn’t think I would harm him in any

way other than just a sting.

Q. Was it your understanding that you didn’t intend any bodily injury to him

other than a sting?

A. Yes, sir. Yes, sir.

Q. And you didn’t expect Alex to be injured. Is that accurate?

A. Yes, sir. I did not – I didn’t expect him to have anything on him other than

maybe a welt at the most.

Q. The fact that he actually had an injury and the skin broke, that was not

your intention. Is that accurate?

A. That’s correct. I didn’t intend to do any of that.

Q. Okay. Would you believe this was an accident?

A. Yes, sir.


Q. If the wad had acted as you expected, Alex would not have been injured.

Is this right?

A. That’s correct.

(Depo. 33-35).

{¶49} Gray knew Napier did not want to be shot because Napier locked himself in

the truck, but Gray shot him anyway. (Depo. 51). Gray testified:

A. * * * But not an intent to hurt him or harm him in any way. Just to joke

around and that’s it.

Q. And I think you described it earlier. Your intent was to cause a sting, to

get a rise out of him, which would result in a welt on him?

A. Yes, sir.

(Depo. 51-52).

The Intent to Cause Bodily Injury

{¶50} Pursuant to the terms of the State Farm policy, only if the injury was

expected or intended, is coverage precluded on the basis that the incident was not an

accident. This term is similar to many insurance policies that contain an “intentional-act

exclusion,” which states the insurance company will not be liable for harm intentionally

caused by the insured. State Farm Mut. Auto. Ins. Co. v. Schalk, 2016-Ohio-732, 47

N.E.3d 926, ¶ 20 (2nd Dist.). The question before the trial court was whether bodily injury

was intended or expected by Gray when he shot Napier with the plastic wad.

The Doctrine of Inferred Intent

{¶51} When there is no direct evidence of an intent by the insured to cause a

bodily injury, the insured’s intent may be inferred as a matter of law. State Farm Mut.


Auto. Ins. Co., supra ¶ 20 citing Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-

Ohio-6312, 942 N.E.2d 1090, ¶ 9 citing Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34,

665 N.E.2d 1115 (1996), paragraph one of the syllabus. In Allstate Ins. Co. v. Campbell,

the Ohio Supreme Court clarified the doctrine of inferred intent to hold that it applied only

in cases in which the insured’s intentional act and the harm caused were intrinsically tied

so that the act necessarily resulted in the harm. 2010-Ohio-6312, paragraph two of

syllabus.

{¶52} The doctrine of inferred intent was developed through a line of cases

starting with Preferred Risk Ins. Co. v. Gill, 30 Ohio St.3d 108, 507 N.E.2d 1118 (1987).

In Gill, the Court found an insurance company had no duty to defend or indemnify a

wrongful death claim because the insured’s act of murdering a child was intentional and

outside coverage. Id. at 113, 115.

{¶53} The next leading case on the doctrine of inferred intent was Physician Ins.

Co. of Ohio v. Swanson, 58 Ohio St.3d 189, 569 N.E.2d 906 (1991). The Court considered

whether an insurance company had the duty to defend and indemnify its insureds, whose

son fired a BB gun three times towards a group of teenagers sitting at a picnic table,

striking one boy in the eye. According to the son’s testimony, he was aiming at a sign on

a tree about 10-15 feet from the picnic table and his purpose in shooting at the sign was

to scare the group of teenagers. He testified he did not believe he would hit any of the

teenagers at the picnic table.

{¶54} The insurance company had an intentional injury exclusion and denied the

claim for coverage. The trial court found the act was intentional, but the injury was

accidental, so that the intentional injury exclusion did not apply. The appellate court


reversed, finding the insurers were not obligated to defend and indemnify its insureds.

The Supreme Court reversed the court of appeals and held, “In order to avoid coverage

on the basis of an exclusion for expected or intentional injuries, the insurer must

demonstrate that the injury itself was expected or intended.” Id. at syllabus. The Court’s

rationale was (1) the plain language of the policy was in terms of an intentional or

expected injury, not an intentional or expected act and (2) that many unintended injuries

result from intentional acts. Campbell, 2010-Ohio-6312, ¶ 38 citing Swanson, 58 Ohio

St.3d 189, 193.

{¶55} The Supreme Court explicitly adopted the doctrine of inferred intent in

Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34, 665 N.E.2d 1115. In Gearing, the

insured sought a declaration that his insurance company was obligated to defend him in

a civil suit arising from his sexual molestation of three girls. Id. at 34-35. The insurance

policy contained an intentional injury exclusion. The Court held that in cases “where an

intentional act is substantially certain to cause injury, determination of an insured’s

subjective intent, or lack of subjective intent, is not conclusive of the issue of coverage.”

Id. at 39. “[A]n insured’s protestations that he ‘didn’t mean to hurt anyone’ are only

relevant where the intentional act at issue is not substantially certain to result in injury.”

Id.

{¶56} The Supreme Court expanded the doctrine of inferred intent in Allstate Ins.

Co. v. Campbell, supra, In Campbell, a group of teenage boys placed a Styrofoam deer

used for target practice just below the crest of a hill on a hilly and curvy two-lane road

with a speed limit of 55 miles per hour. 2010-Ohio-6312, ¶ 2. They put the target on the

road after dark in a place where drivers would be unable to see it until they were 15 to 30


yards away. Id. The boys stayed to watch the reactions of motorists. A motorist drive over

the hill and lost control of his vehicle, causing him serious injuries. Id. The boys’ insurance

companies filed declaratory judgment actions seeking declarations that they were under

no duty to defend or indemnify their insureds based on the intentional-act exclusions

found within their policies. The appellate court found the boys acted intentionally but there

was a genuine issue of material fact whether the boys intended to cause harm when they

placed the deer target in the road and whether harm was substantially certain to result

from their actions. Id. at ¶ 6. The Supreme Court affirmed the court of appeals, finding the

doctrine of inferred intent did not apply to the circumstances of the case. The doctrine

applied only in cases in which the insured’s intentional act and the harm caused by that

act were intrinsically tied so that the harm necessarily resulted from the act. Id. at ¶ 62.

Specific Injury

{¶57} Napier contends the trial court failed to apply and/or misapplied the doctrine

of inferred intent as stated in Swanson and Campbell. The doctrine of inferred intent

applies only when the insureds’ intentional act and the harm caused by that act are

intrinsically tied so that the harm necessarily resulted from the act. Napier notes the case

law does not state “any harm,” but states “the harm” (emphasis added). Napier contends

the exclusionary language relating to expected and intended injuries is applicable only

when the insured intends to inflict the specific harm suffered by the victim. In this case,

he states the intentional injury exclusion does not apply because Gray only intended to

cause a sting or a welt when he shot Napier with the wad. Gray did not intend or expect

to cause the injury suffered by Napier, a penetrating leg wound.


{¶58} We decline to extend Swanson and Campbell to find the insured must

intend the specific bodily injury suffered by the victim before the exclusion will apply, as

argued by Napier. The issue for the finder of fact is whether the act and the harm are

intrinsically tied so that the harm necessarily resulted from the act. In Swanson, the

shooter intentionally fired the BB gun at the group of teenagers, but he did not intend to

harm anyone; therefore, the injury itself was neither intended not substantially certain to

occur. In Campbell, the Court could not say as a matter of law whether the placement of

the target deer in the roadway would necessarily result in harm. In Gill and Gearing, the

Court found with respect to the intentional acts of aggravated murder and sexual

molestation, the intent to injure may be inferred as a matter of law because the harm from

those acts are intrinsically tied. There was no analysis in any of those cases requiring the

insured to intend a specific bodily injury. The Twelfth District Court of Appeals stated in

United Ohio Ins. Co. v. Vanosdol, 12th Dist. Warren No. CA92-08-073, 1993 WL 185612,

*3 (June 1, 1993):

In our view, Physicians Ins. Co., supra, does not stand for the proposition

that exclusionary language relating to intended and expected injuries is

applicable only when the insured intends to inflict a precise, specific bodily

injury on a victim and thereafter inflicts that particular injury. It would be the

rare occasion, if ever, where an insured would admit that he or she intended

all the injuries that his or her actions caused a victim.

Instead, this court is of the belief that Physicians Ins. Co., supra, holds that

the insured must not only intend the act, but further intend that the act will

cause a bodily injury, before the “intended or expected injury” exclusion


clause in an insurance policy becomes applicable. The factual scenario

found in Physicians Ins. Co., supra, supports this interpretation. There, the

insured admitted that his act of firing the BB gun was intentional, but denied

that he intended to injure anyone. He thus did not intend to cause a bodily

injury when he fired the gun and the exclusion clauses in his insurance

policies were deemed inapplicable by the supreme court.

The Eighth District Court of Appeals stated, “[t]he Swanson court did not state that the

insured had to intend the extent of injury, only that the insured had to intend or expect to

cause an injury.” Aetna Cas. & Sur. Co. v. Cigany, 8th Dist. Cuyahoga No. 73230, 1998

WL 655495, *3 (Sept. 24, 1998), appeal not accepted, 84 Ohio St.3d 1505, 705 N.E.2d

1244 (1999).

Direct Evidence of Intent to Cause Bodily Injury

{¶59} In its ruling on motion for summary judgment, the trial court found Gray’s

deposition testimony as to his intent when he fired the shotgun at Napier obviated the

application of the doctrine of inferred intent. Gray testified he intended to cause Napier

bodily injury when he shot him with a 12-gauge shotgun loaded with a plastic wad. The

State Farm policy defines a “bodily injury” as a “physical injury, sickness, or disease to a

person. This includes required care, loss of services and death resulting therefrom.” Gray

knew that when a person was shot in the leg with a 12-gauge shotgun loaded with a

plastic wad, the victim could suffer a sting or a welt. A sting or welt is a trauma to the body

caused by an outside force. Gray testified when he was shot with a plastic wad, it caused

a welt on his leg that took a day to heal.


{¶60} Gray testified on March 3, 2012, he intended to cause Napier a sting or a

welt when he shot him in the leg with a 12-gauge shotgun loaded with a plastic wad. The

trial court found the facts of Swanson and Campbell were not applicable because in those

cases, the insured did not intend to cause bodily injury or there was a genuine issue of

material fact whether the act was intrinsically tied to the bodily injury that occurred. In this

case, the trial court found the object of firing the shotgun at Napier was to hit him with a

projectile and cause a bodily injury, a sting or a welt.

{¶61} As stated above, when there is no direct evidence of an intent by the insured

to cause a bodily injury, the insured’s intent may be inferred as a matter of law. State

Farm Mut. Auto. Ins. Co., supra ¶ 20 citing Allstate Ins. Co. v. Campbell, 128 Ohio St.3d

186, 2010-Ohio-6312, 942 N.E.2d 1090, ¶ 9 citing Gearing v. Nationwide Ins. Co., 76

Ohio St.3d 34, 665 N.E.2d 1115 (1996), paragraph one of the syllabus. In this case, there

is direct evidence of intent by the insured to cause a bodily injury. Under the

circumstances of this case, we agree with the trial court that there is no genuine issue of

material fact that Gray intended or expected to cause bodily injury to Napier when he shot

him in the leg with a 12-gauge shotgun loaded with a plastic wad. We decline to extend

Swanson or Campbell to state that Gray must have intended that Napier suffer a specific

bodily injury for the intentional injury exclusion to apply. The language of the State Farm

policy thereby precludes coverage for Gray for the incident on March 3, 2012.

{¶62} Napier’s first Assignment of Error is overruled.


II. Austin Phillips as Defendant

{¶63} Napier argues in his second Assignment of Error the trial court erred when

it denied his motion for leave to file a third amended complaint and granted the motion for

clarification filed by Defendants-Appellees Elizabeth and Barry Phillips that stated Austin

Phillips was not a party defendant.

Napier’s Complaints

{¶64} Napier’s original complaint did not name Austin Phillips, Elizabeth Phillips,

or Barry Phillips as party defendants.

{¶65} Austin Phillips turned 16 years old on August 27, 2012.

{¶66} On July 23, 2013, Napier filed his first amended complaint naming the

following parties as defendants:

Elizabeth E. Phillips, Individually and as Mother and Legal Guardian of

Austin Phillips, a minor (date of birth 08/27/96) and Barry J. Phillips,

Individually and as Father and Legal Guardian of Austin Phillips, a minor

(date of birth 08/27/96).

Austin Phillips was not independently listed in the complaint caption. On April 25, 2014,

Napier filed a second amended complaint that included the same language referencing

Elizabeth and Barry Phillips and did not name Austin Phillips in the complaint caption. In

the body of the first and second amended complaints, Napier referred to Austin Phillips

as “Defendant Austin Phillips.”

{¶67} Austin Phillips turned 18 years old on August 27, 2014.

{¶68} On March 6, 2017, Napier filed a motion for leave to file a third amended

complaint. He moved pursuant to Civ.R. 15(A) and (C) to amend his complaint to


substitute “Defendant Austin Phillips” for Elizabeth and Barry Phillips because Austin

Phillips was no longer a minor. Napier argued the amendment related back to the filing of

the original complaint. Napier stated the third amended complaint did not seek to add

Austin Phillips as a party but instead substitute him because he was an adult. “Defendant

Austin Phillips” would be substituted for “Defendant Elizabeth E. Phillips, as mother and

legal guardian of Austin Phillips” and “Defendant Barry J. Phillips, as father and legal

guardian of Austin Phillips,” who stood for him when he was a minor. Defendants

Elizabeth and Barry Phillips would remain, as they were still defendants in their individual

capacities.

{¶69} Elizabeth and Barry Phillips opposed the motion to amend the complaint

because Napier did not seek to substitute Austin Phillips as a defendant, but was adding

Austin Phillips as an additional defendant after the statute of limitations expired, in

contravention of Civ.R. 15(C).

{¶70} The trial court denied the motion to amend the complaint on April 10, 2017.

It found that Napier did not meet the elements of Civ.R. 15(C) in that there was never a

mistake concerning the identity of the proper party. If Austin Phillips had been named a

defendant, the trial court reasoned, there would be no need to substitute him as a party.

{¶71} On May 22, 2017, Elizabeth and Barry Phillips filed a motion for clarification

to determine if Austin Phillips was a party in the case. The trial court found Austin Phillips

was not named as a defendant. The trial court first found that Napier failed to separately

name Austin Phillips as a defendant in the caption of the complaint pursuant to Civ.R.

10(A). Second, the trial court noted Napier served Elizabeth and Barry Phillips, but did

make service of process on Austin Phillips pursuant to Civ.R. 4.2.


{¶72} Napier dismissed Elizabeth and Barry Phillips as party defendants without

prejudice on September 11, 2017.

Civ.R. 15

{¶73} Napier argued his motion to amend his complaint was proper pursuant to

Civ.R. 15(A) and (C). The rules state:

Civ.R. 15(A) Amendments. A party may amend its pleading once as a

matter of course within twenty-eight days after serving it or, if the pleading

is one to which a responsive pleading is required within twenty-eight days

after service of a responsive pleading or twenty-eight days after service of

a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other

cases, a party may amend its pleading only with the opposing party's written

consent or the court's leave. The court shall freely give leave when justice

so requires. Unless the court orders otherwise, any required response to an

amended pleading must be made within the time remaining to respond to

the original pleading or within fourteen days after service of the amended

pleading, whichever is later.

* * *

Civ.R. 15(C) Relation Back of Amendments. Whenever the claim or

defense asserted in the amended pleading arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the

original pleading, the amendment relates back to the date of the original

pleading. An amendment changing the party against whom a claim is

asserted relates back if the foregoing provision is satisfied and, within the


period provided by law for commencing the action against him, the party to

be brought in by amendment (1) has received such notice of the institution

of the action that he will not be prejudiced in maintaining his defense on the

merits, and (2) knew or should have known that, but for a mistake

concerning the identity of the proper party, the action would have been

brought against him.

{¶74} Civ.R. 15(C) sets forth three requirements that must be met before an

amendment “changing the party” can relate back to the original pleading. Caterpillar

Financial Services Corp. v. Tatman, 4th Dist. Ross No. 18CA3646, 2019-Ohio-2110, 2019

WL 2295395, ¶ 49. “First, the claim in the amended complaint must arise ‘out of the

conduct, transaction, or occurrence set forth or attempted to be set forth in the original

pleading.’ Second, the party sought to be substituted by the amendment must have

received notice of the action ‘within the period provided by law for commencing the action,’

so that the party is not prejudiced in maintaining a defense. Third, the new party, ‘within

the period provided by law for commencing the action,’ knew or should have known that,

but for a mistake concerning the proper party's identity, the action would have been

brought against the new party.” Id. “The primary purpose of Civ.R. 15(C) is to preserve

actions that, through mistaken identity or misnomer, have been filed against the wrong

person.” Id. at ¶ 50 quoting Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d

86, 101, 529 N.E.2d 449 (1988).

{¶75} Civ.R. 15 governs a motion for leave to amend the pleadings, and we review

the trial court's decision for an abuse of discretion. Kent State Univ. v. Bradley Univ., 11th

Dist. Portage No. 2017-P-0056, 2019-Ohio-2088, 2019 WL 2269154, ¶ 109 citing Merrill


Lynch Mtge. Lending, Inc. v. 1867 W. Mkt., L.L.C., 9th Dist. Summit No. 23443, 2007-

Ohio-2198, 2007 WL 1345817, ¶ 8.

{¶76} The trial court found Napier’s third amended complaint did not substitute

Austin Phillips as a new defendant in the place of an original defendant. Elizabeth and

Barry Phillips remained as party defendants in the amended complaint. Further, the failure

to name Austin Phillips as a defendant was not the result of mistaken identity or misnomer

of the proper party. Caterpillar Financial Services Corp. v. Tatman, 4th Dist. Ross No.

18CA3646, 2019-Ohio-2110, 2019 WL 2295395, ¶ 5 citing Pottorf v. Sell, 3rd Dist. Shelby

No. 17-08-30, 2009-Ohio-2819, 2009 WL 1664778, ¶ 20 (the “relations back” theory

under Civ.R. 15(C) fails where the original complaint does not contain an actual misnomer

or mistake); Andre v. Chillicothe Jeep Sales, Inc., 10th Dist. Franklin No. 83AP-780, 1983

WL 3814, *2 (Civ. R. 15(C) “covers cases of misnomer as well as cases of misdescription”

and is not to be used where plaintiff was well aware of defendant's status prior to the

institution of the lawsuit.) “A mistake of party does not exist merely because a ‘party who

may be liable for conduct alleged in the original complaint was omitted as a party

defendant.’ ” Beavercreek Local Schools, v. Basic, Inc., 71 Ohio App.3d 669, 595 N.E.2d

360 (2nd Dist. 1991).

{¶77} Because Napier’s failure to name the Austin Phillips in the original complaint

was not the result of some mistake concerning the identity of the proper party as required

by the plain language of Civ.R. 15(C), the amended third-party complaint does not relate

back to the original. We stated in McInerney v. Harvey, 5th Dist. Licking No. 01CA29,

2001 WL 1000992, *2 (Aug. 24 2001):


The plain language of the rule relates to the substitution of a proper party

for one previously misidentified in the original complaint. The concluding

clause of Civ.R. 15(C) provides further support for this view in as much as

it refers to a mistake regarding the identity of the proper party in the original

pleading.

{¶78} We find no abuse of discretion for the trial court to deny Napier’s motion to

amend his complaint based on the plain reading of Civ.R. 15(C).

{¶79} Napier’s second Assignment of Error is overruled.

III. R.C. 2315.18(B) – Noneconomic Damages Cap

IV. Apportionment of Liability & Damages Cap

{¶80} Napier contends in his third Assignment of Error that the trial court erred

when it applied R.C. 2315.18(B) and reduced Napier’s noneconomic damages award to

$250,000. In his fourth Assignment of Error, Napier states the trial court erred when it

applied the statutory damages cap prior to apportioning liability in accordance with the

jury’s verdict. We consider Napier’s third and fourth Assignments of Error together

because their resolution requires similar analysis.

{¶81} Napier went forward with a jury trial against Ickes as the sole defendant.

The jury awarded a judgment in favor of Napier and against Ickes in the amount of

$1,250,000 in noneconomic damages, $1000 in punitive damages, and reasonable

attorney fees. The jury apportioned their verdict: 55% as to Ickes; 35% as to Gray; and

10% as to Phillips. The trial court memorialized the verdict via judgment entry on April 10,

2018.


{¶82} On April 11, 2018, Ickes filed a motion for remittitur, judgment

notwithstanding the verdict, and application of R.C. 2315.18. The trial court found the

motion to be well taken and on May 11, 2018, it reduced the jury verdict from $1,250,000

to $250,000 pursuant to the statutory compensatory damages cap found in R.C.

2315.18(B). Because the jury found Ickes to be 55% responsible for Napier’s injuries, the

trial court awarded Napier $137,500.

{¶83} On May 29, 2018, Napier, Ickes, and Nationwide Mutual Insurance

Company entered into a Mutual Release of Claims. The Mutual Release of Claims stated

as follows:




claim against Terry Ickes, up to ($10,000) ten thousand dollars, the receipt

and sufficiency of which is acknowledged in exchange for the executed

release, Frederick Alex Napier * * *, does hereby release and discharge,

Terry Ickes and Nationwide Mutual Insurance Company, * * *

The Mootness Doctrine

{¶84} Appellee Austin Phillips raises the issue that this Court does have

jurisdiction to consider Napier’s third and fourth Assignments of Error because they are

moot based on the Mutual Release of Claims between Napier and Ickes. We agree.

{¶85} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.” State v. Feister, 5th Dist. Tuscarawas

No. 2018 AP 01 0005, 2018-Ohio-2336, ¶ 28 quoting United States v. Alaska S.S. Co.,


253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San

Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Accord,

North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 92, 30 L.Ed.2d 244(1971). Because

mootness is a jurisdictional question, the question of mootness is one that must be

addressed even if the parties do not raise it. North Carolina v. Rice, 404 U.S. at 246, 92

S.Ct. 92, 30 L.Ed.2d 244.

{¶86} Ohio courts have long exercised judicial restraint in cases that are not actual

controversies. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372(1970). No

actual controversy exists where a case has been rendered moot by an outside event. “It

is not the duty of the court to answer moot questions, and when, pending proceedings in

error in this court, an event occurs without the fault of either party, which renders it

impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v.

Witt, 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson, 57 Ohio St.3d

131, 133, 566 N.E.2d 655(1991).

{¶87} In Bradley v. Ohio Dept. of Job and Family Services, our brethren from the

Tenth Appellate District observed,

“The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language

of Section 2, Article III of the United States Constitution and in the general

notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio

App.3d 788, 791, 600 N.E.2d 736. “While Ohio has no constitutional

counterpart to Section 2, Article III, the courts of Ohio have long recognized

that a court cannot entertain jurisdiction over a moot question.” Id. “It has

been long and well established that it is the duty of every judicial tribunal to


decide actual controversies between parties legitimately affected by specific

facts and to render judgments which can be carried into effect. It has

become settled judicial responsibility for courts to refrain from giving

opinions on abstract propositions and to avoid the imposition by judgment

of premature declarations or advice upon potential controversies.” Fortner

v. Thomas (1970), 22 Ohio St.2d 13, 14, 257 N.E.2d 371. In other words,

an issue is moot when it has no practical significance, being instead merely

hypothetical or academic.

10th Dist. Franklin No. 10AP-567, 2011-Ohio-1388, ¶ 11; Accord, Boncek v. Stewart, 9th

Dist. Summit No. 21054, 2002-Ohio-5778, ¶ 10. Although the mootness doctrine has

exceptions, none apply in the case at bar. See, e.g., In re Appeal of Suspension of Huffer

from Circleville High School, 47 Ohio St.3d 12, 546 N.E.2d 1308 (1989), paragraph one

of the syllabus (noting the two exceptions to the mootness doctrine are when “the issues

are capable of repetition, yet evading review” or the case “involves a matter of public or

great general interest”).

{¶88} A court may take judicial notice of mootness. “In fact, ‘an event that causes

a case to be moot may be proved by extrinsic evidence outside the record.’ Pewitt v.

Lorain Correctional Inst. (1992), 64 Ohio St.3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92,

94.” State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d

1181(2000). Accord, Miner v. Witt, 82 Ohio St. 237, 239, 92 N.E.2d 21(1910).

{¶89} We find there is no actual controversy as to the application of R.C. 2315.18

to the amount of damages awarded to Napier because Napier and Ickes agreed to a

Mutual Release of Claims. In consideration for $300,000, Napier agreed to release and


discharge all his claims against Ickes, the only remaining defendant, and Ickes’s insurer.

Napier resolved his claims against Ickes so there is no actual controversy remaining

between Ickes and Napier as to the verdict amount.

{¶90} Napier argues the Mutual Release of Claims “reserved the right to Napier

to pursue other insurance carriers who may be responsible to Napier.” (Appellant’s Reply

Brief, Dec. 17, 2018). “Application of R.C. 2315.18(B) to limit the $1,250,000 judgment

against Ickes to $250,000 (further reduced to $137,500) may foreclose Appellant from

collecting full judgment from Ickes’s additional insurance carriers upon a supplemental

complaint.” (Appellant’s Reply Brief, Dec. 17, 2018). The important word in Napier’s

statements is “may.” Napier seeks an advisory opinion about a speculative possible future

event/controversy. Manogg v. Randolph, 5th Dist. Licking No. 18-CA-0101, 2019-Ohio-

693, 2019 WL 978682, ¶ 13.

{¶91} The duty of a court of appeals is to decide controversies between parties

by a judgment which can be carried into effect, and the court need not render an advisory

opinion on a moot question or a question of law that cannot affect the issues in a case.

Thus, when circumstances prevent an appellate court from granting relief in a case, the

mootness doctrine precludes consideration of those issues.” Manogg, supra at ¶ 14 citing

Schwab v. Lattimore, 1st Dist. No. C–050874, 166 Ohio App.3d 12, 2006–Ohio–1372,

848 N.E.2d 912, ¶ 10 (Internal citations omitted).

{¶92} Because there is no remedy this Court can legally order and this Appeal

constitutes only a request for an advisory ruling, we overrule Napier’s third and fourth

Assignments of Error.


V. Court Costs

{¶93} In his final Assignment of Error, Napier contends the trial court erred when

it denied Napier’s motion to enforce settlement as to the award of $5,000 in court costs

for paralegal assistance during the jury trial. We disagree.

{¶94} The Mutual Release of Claims stated,




claim against Terry Ickes, up to ($10,000) ten thousand dollars * * *

{¶95} On May 24, 2018, Napier’s counsel submitted a letter to Ickes’s counsel,

claiming a total of $10,852.37 in court costs. Relevant to this appeal, Napier’s counsel

stated he incurred costs in the amount of $5,000 for paralegal assistance during the four-

day trial, including playing back video depositions. Ickes’s counsel objected to paying

$5,000 for the paralegal’s assistance.

{¶96} Napier filed a motion to enforce settlement. Attached to his motion were

exhibits for the trial court’s consideration. The trial court utilized the exhibits to calculate

costs, not to interpret the Mutual Release of Claims. On August 8, 2018, the trial court

granted in part and denied in part Napier’s motion to enforce settlement. As to the costs

for paralegal assistance during the jury trial, the trial court found Napier provided no

support for the $5,000 figure. The trial court stated Ickes provided an exhibit and affidavit

to demonstrate the cost for such assistance was typically $600 and awarded Napier the

same. The trial court issued a nunc pro tunc judgment entry on August 27, 2018 stating

the judgment entry was a final appealable order.


{¶97} R.C. 2303.21 states, “When it is necessary in an appeal, or other civil action

to procure a transcript of a judgment or proceeding, or exemplification of a record, as

evidence in such action or for any other purpose, the expense of procuring such transcript

or exemplification shall be taxed in the bill of costs and recovered as in other cases.”

{¶98} Civ.R. 54(D) governs the allowance of costs to the prevailing party in a civil

action. It provides: “Except when express provision therefor is made either in a statute or

in these rules, costs shall be allowed to the prevailing party unless the court otherwise

directs.” The phrase “unless the court otherwise directs” grants the trial court discretion

to order the prevailing party bear all or part of his or her own costs. State By & Through

Wray v. Karl R. Rohrer Assoc., Inc., 5th Dist. Tuscarawas No. 2017AP050012, 2018-

Ohio-156, ¶ 5 citing Vance v. Roedersheimer, 64 Ohio St.3d 552, 555, 1992–Ohio–24,

597 N.E.2d 153, 156. The Ohio Supreme Court has defined “costs”:

This court has consistently limited the categories of expenses which qualify

as “costs.” “Costs, in the sense the word is generally used in this state, may

be defined as being the statutory fees to which officers, witnesses, jurors

and others are entitled for their services in an action * * * and which the

statutes authorize to be taxed and included in the judgment * * *. * * * Costs

did not necessarily cover all of the expenses and they were distinguishable

from fees and disbursements. They are allowed only by authority of statute

* * *.” State, ex rel. Commrs. of Franklin County, v. Guilbert (1907), 77 Ohio

St. 333, 338–339, 83 N.E. 80, quoted, in part, with approval in Benda v.

Fana (1967), 10 Ohio St.2d 259, 262–263, 227 N.E.2d 197.


Today, we reaffirm the principle that “(t)he subject of costs is one entirely of

statutory allowance and control.” State, ex rel. Michaels, v. Morse (1956),

165 Ohio St. 599, 607, 138 N.E.2d 660, quoted with approval in Sorin v. Bd.

of Edn. (1976), 46 Ohio St.2d 177, 179, 347 N.E.2d 527.

Centennial Ins. Co. v. Liberty Mut. Ins. Co., 69 Ohio St.2d 50, 50–51, 430 N.E.2d 925,

926 (1982).

{¶99} “A court's assessment of costs under Civ.R. 54(D) is reviewed under an

abuse of discretion standard.” Franks v. Meyers, 6th Dist. No. WD-14-035, 2015-Ohio-

703, 28 N.E.3d 133, 2015 WL 847412, ¶ 22 quoting Atkinson v. Toledo Area Regional

Transit Auth., 6th Dist. Lucas No. L–05–1106, 2006-Ohio-1638, 2006 WL 832832, ¶ 9,

citing State ex rel. Fant v. Regional Transit Auth., 48 Ohio St.3d 39, 548 N.E.2d 240

(1990). An abuse of discretion connotes that a trial court's attitude is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

{¶100} In its August 27, 2018 judgment entry, the trial court agreed Napier

was entitled to reimbursement for costs related to paralegal assistance during the trial.

The trial court found only that Napier failed to provide evidence to support his demand for

costs in the amount of $5,000 for paralegal assistance during the jury trial. The trial court

relied upon the evidence provided by Ickes that $600 was a reasonable amount for

paralegal assistance. Based on the record, we find no abuse of discretion for the trial

court to determine Napier was entitled to $600 in costs for paralegal assistance during

the jury trial.

{¶101} Napier’s fifth Assignment is overruled.


CONCLUSION

{¶102} The judgment of the Licking County Court of Common Pleas is

affirmed.

By: Delaney, J., and

Wise, Earle, J. Hoffman, P.J., concurs separately.


n, P.J., concurs separately {¶103} I concur in the majority’s analysis and disposition of Appellant’s first, third,

fourth and fifth assignments of error.

{¶104} I further concur in the majority’s overall analysis and in its disposition of

Appellant’s second assignment of error. I write separately for clarification of my specific

reasons for doing so.

{¶105} I agree with the trial court’s and majority’s conclusion Austin Phillips was

not a named party defendant in either the original, first or second amended complaints. I

further agree the trial court did not error in not substituting Austin Phillips as defendant

for his parents. Appellant’s request to “substitute” was, in essence, a request to add a

party.

{¶106} Appellant does not directly challenge the trial court’s decision under Civ.R.

15(A). Had he done so, I would find his argument more persuasive. However, even if

successful, Appellant would still have to satisfy the requirements of Civ.R. 15(C) to have

his amended complaint relate back in time to the filing of his initial complaint to avoid the

application of the statute of limitations. Because I find his failure to specifically name


Austin Phillips as a defendant and serve him as such, does not qualify as a mistake as to

identity under Civ.R. 15(C) (Appellant clearly knew the identity of Austin Phillips) nor a

mere misnomer, I believe the Appellant’s argument under Civ.R. 15(C) would ultimately

fail for the reasons set forth in the majority’s opinion. Accordingly, I concur.

napier v. ickes - supremecourt.ohio.gov · licking county, case no. 2018 ca 00081 2 delaney, j....

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