Opinion
No. V91-65119.
Decided May 11, 1993.
Steven P. Collier, for the applicant.
Lee Fisher, Attorney General, for the state.
This cause came to be heard before this panel of three commissioners on March 18, 1992 at 3:00 p.m. upon the applicant's October 10, 1991 objection and notice of appeal to the September 13, 1991 decision of the single commissioner.
Neither the applicant, Scott J. Harden, nor anyone on his behalf appeared at the hearing. The Attorney General attended the hearing and moved to waive oral argument. Following a brief discussion of the claim, the panel chairman granted the Attorney General's motion and concluded the hearing.
On September 13, 1991, the single commissioner issued an order granting an award of reparations in the amount of $8,457, of which $2,500 represented funeral expense and $5,957 represented dependent's replacement services loss for the period December 13, 1990 to December 13, 1992. In his October 10, 1991 objection and notice of appeal, the applicant argued that the Attorney General and single commissioner erroneously calculated dependent's replacement services loss using a survey of daycare rates from eighty-seven of eighty-eight Ohio counties. The only county not included in the survey was Putnam County, the county wherein the criminally injurious conduct occurred and victim-decedent Linda Harden's dependent child resides. The applicant further argued that dependent's replacement services loss should be based upon the Putnam County Probate Court judgment entry that appoints James and Jane Engard to act in loco parentis concerning the minor-dependent, Stacie L. Harden. That entry further requires that the Engards be paid $125 per week. The Attorney General contended that the $125 charge may not be used as a basis for dependent's replacement services loss because that amount is being paid by the Putnam County Department of Human Services, which is a collateral source. On March 11, 1992, the applicant filed a reply brief contending the $125 weekly charge has been paid out of Stacie Harden's own checking account and not by the Putnam County Department of Human Services.
R.C. 2743.52(A) places the burden of proof upon the applicant to satisfy the Court of Claims Commissioners that the requirements for an award of reparations have been met by a preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63, 455 N.E.2d 1374, paragraph one of the syllabus. Black's Law Dictionary defines "preponderance of evidence" as follows:
"Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; That is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Braud v. Kinchen, La App, 310 So.2d 657, 659. With respect to burden of proof in civil actions, means greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability. The word `preponderance' means something more than `weight'; it denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a `weight' of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side." (Emphasis added.) Black's Law Dictionary (5 Ed. 1979) 1064.
Ordinarily, a prima facie claim is made when the applicant files an application in accordance with R.C. 2743.56 and submits such additional material, information, and evidence as required by R.C. 2743.59. In re Williams (Mar. 26, 1979), Ct. of Cl. No. V77-0739jud, unreported.
R.C. 2743.51(J) defines "dependent's replacement services loss" as follows:
"(J) `Dependent's replacement services loss' means loss reasonably incurred by dependents after a victim's death in obtaining ordinary and necessary services in lieu of those the victim would have performed for their benefit if he had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death and not subtracted in calculating dependent's economic loss."
In In re Eader (1982), 70 Ohio Misc. 17, 24 O.O.3d 83, 434 N.E.2d 757, the court held that "[R.C. 2743.51(J)] requires evidence to demonstrate loss as a fact subsequent to the loss, cost or expense being incurred." Thus, "the losses incurred could not be projected by an estimate of the value of services the decedent would `have been expected to perform.'" Eader, supra, at 21, 24 O.O.3d at 85, 434 N.E.2d at 760; see, also, In re Spikes (Aug. 31, 1984), Ct. of Cl. No. V78-3969jud, unreported, approving Eader. In In re Lawson (Apr. 23, 1987), Ct. of Cl. No. V84-46872tc, unreported, and In re Smith (Oct. 2, 1987), Ct. of Cl. No. V86-44699tc, unreported, a panel of three commissioners held that dependent's replacement services loss be calculated as follows:
"* * * based on the lesser of:
"(1) an average hourly cost of at least two child care services within the local community, or
"(2) the hourly compensation requested by the applicant. The age of the child must be considered because the maturing child, in all likelihood, requires less care and supervision." (Emphasis added.)
Following these determinations, the Attorney General conducted the aforementioned survey of county daycare center rates and has routinely used these rates to calculate dependent's replacement services loss.
In the instant claim, the Attorney General used daycare rates from Allen County, which is adjacent to Putnam County, because daycare rates were not available from Putnam County. However, Eader and Spikes require that dependent's replacement services loss be calculated using the loss that was actually incurred, not estimates. And the applicant has submitted documentation stating the dependent's foster parents have been paid $125 a week from the guardianship account of the minor in accordance with the provisions of a judgment entry of the Putnam County Probate Court.
From review of the file, with full consideration given to the oral argument presented at the hearing, we find the findings of fact and conclusions of law of the single commissioner fail to properly address the issues and interpret the law. The evidence establishes the Attorney General failed to use the correct data in calculating dependent's replacement services loss. The Victims of Crime Act and case precedents that have evolved from it require that dependent's replacement services loss be based upon the actual loss incurred. Notwithstanding that the Attorney General has prepared a survey of daycare rates in eighty-seven of the eighty-eight Ohio counties, the applicant is not precluded from submitting evidence as to the actual loss incurred. In fact, the hallmark of the above-cited authority is that dependent's replacement services loss be calculated on the basis of a demonstrated loss. Therefore, the September 13, 1991 decision of the single commissioner will be set aside as to dependent's replacement services loss and affirmed as to funeral expense.
In accordance with the foregoing determination, this claim will be referred to the Attorney General for further investigation and a new finding of fact and recommendation and remanded to the single commissioner for further determination concerning dependent's replacement services loss. Specifically, the Attorney General shall verify the averments contained in the March 6, 1992 affidavit of Kreg A. Schey and determine whether the claimed expenses have been, or may be, reimbursed from a readily available collateral source. If the claimed expenses cannot be recouped from a collateral source, the Attorney General shall calculate dependent's replacement services loss based upon the actual, demonstrated loss.
IT IS THEREFORE ORDERED THAT:
1. The September 13, 1991 order of the single commissioner is AFFIRMED as to funeral expense and SET ASIDE as to dependent's replacement services loss;
2. The Clerk shall certify the September 13, 1991 judgment in the amount of $2,500 to the Director of the Office of Budget and Management for payment to the applicant pursuant to R.C. 2743.191;
3. This claim is remanded to the single commissioner for further determination concerning dependent's replacement services loss and referred to the Attorney General for further investigation and a new finding of fact and recommendation to be filed with the court on or before June 25, 1993;
4. The applicant may respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General; and
5. Costs be assumed by the reparations fund.
So ordered.
KARL H. SCHNEIDER, PHILLIP E. PARISI and STEVEN A. LARSON, Commissioners, concur.