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providing that the interpretation of an insurance policy "is a question of law for the court to decide"
Summary of this case from Firstenergy Generation, LLC v. Valley Forge Ins. Co.Opinion
No. 2018 CA 00081
06-27-2019
Katherine NAPIER, et al., Plaintiff-Appellant v. Terry D. ICKES, et al., Defendants-Appellees
OPINION
{¶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, 128 Ohio St.3d 186, 942 N.E.2d 1090, 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, 507 N.E.2d 1118.
{¶53} The next leading case on the doctrine of inferred intent was Physicians 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, 128 Ohio St.3d 186, 942 N.E.2d 1090, ¶ 38 citing Swanson , 58 Ohio St.3d 189, 193, 569 N.E.2d 906.
{¶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, 665 N.E.2d 1115. 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, 665 N.E.2d 1115. "[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, 128 Ohio St.3d 186, 942 N.E.2d 1090, ¶ 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, 2019-Ohio-2110, 137 N.E.3d 512, ¶ 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, 2019-Ohio-2088, 136 N.E.3d 774, ¶ 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, 2019-Ohio-2110, 137 N.E.3d 512, ¶ 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:
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, * * *
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, 2018 WL 3019219, ¶ 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. 402, 30 L.Ed.2d 413 (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. 402, 30 L.Ed.2d 413.
{¶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, 2011 WL 1048966, ¶ 11 ; Accord, Boncek v. Stewart , 9th Dist. Summit No. 21054, 2002-Ohio-5778, 2002 WL 31387302, ¶ 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. 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., 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,
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 * * *
{¶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, 2018 WL 456297, ¶ 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., 2015-Ohio-703, 28 N.E.3d 133, ¶ 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.
Wise, Earle, J.
Hoffman, P.J., concurs separately.
Hoffman, 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.