United States District Court,

N.D. Illinois, Eastern Division.

Starr Indemnity & Liability Company, a/s/o Cessna Aircraft Company, Plaintiff,

v.

YRC, Inc., Defendant.

Case No. 15-cv-6902

|

Signed 01/17/2017

 

 

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

*1 Plaintiff Starr Indemnity & Liability Company, as subrogee of Cessna Aircraft Company, brought suit against Defendant YRC, Inc. for cargo damage. Plaintiff alleges that as a result of Defendant’s damage to the cargo, Plaintiff was compelled to pay its insured, Cessna Aircraft Company, the sum of $1,916,413.26. Before the Court are Defendant YRC Inc.’s motion [22] to dismiss Counts II, III, and IV pursuant to Federal Rule of Civil Procedure 12(b)(6), and Plaintiff’s motion [27] to permit and schedule oral argument on Defendant’s motion to dismiss. For the reasons set forth below, the Court denies Defendant’s motion to dismiss [22] and denies Plaintiff’s motion for oral argument [27]. This case is set for further status hearing on February 2, 2017 at 9:00 a.m.

 

 

1. Background

Plaintiff Starr Indemnity is the insurance provider for Cessna Aircraft Company, a company that manufactures, sells, and leases business jets. [15 (Complaint) at ¶¶ 1–2.] Defendant YRC is an interstate motor carrier. [Id. at ¶ 4.] Plaintiff alleges that on or about August 13, 2014, Cessna tendered two jet engines (“the cargo”) to Defendant for transportation from Orlando, Florida to Bridgeport, West Virginia. [Id. at Count I ¶ 6.] Defendant issued a bill of lading to Cessna acknowledging receipt of the cargo for transport. [Id.] Plaintiff contends that on or about August 14, 2014, the cargo was extensively damaged during transportation by Defendant. [Id. at Count I ¶ 7.] Plaintiff further contends that as a result of the damage to the cargo, Plaintiff was compelled to pay its insured, Cessna, the sum of $1,916,413.26. [Id. at Count I ¶ 9.]

 

Plaintiff contends that Defendant operates pursuant to authority issued to it by the Federal Motor Carrier Safety Administration (“FMCSA”) and provides transportation service subject to jurisdiction under Subchapter I of Chapter 135 of the Interstate Commerce Commission Termination Act (“ICCTA”) pursuant to 49 U.S.C. §§ 13501 et seq. and is subject to the requirements of the Federal Motor Carrier Safety Regulations (“FMCSR”). [Id. at Count II ¶ 3.] Plaintiff’s amended complaint alleges liability under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, (Count I), as well as violations of the ICCTA, 49 U.S.C. § 14704(a)(2) and 14704(e), (Counts II, III, and IV).

 

In Count I, Plaintiff alleges that under the Carmack Amendment, Defendant is liable for $1,916,413.26 in cargo damage plus pre-judgment and post-judgment interest. Plaintiff asserts that there is in excess of $10,000 at issue per the bill of lading, exclusive of interest and costs. [Id. at ¶ 5.]

 

In Count II, Plaintiff alleges that Defendant permitted the trailer transporting the cargo “to be driven when it was so loaded, or so improperly distributed or so inadequately secured as to prevent its safe operation,” in violation of the safe loading requirements of 49 C.F.R. § 398.4(g)(1).1 [See id. at Count II ¶ 20.] According to Plaintiff, the trailer contained Cessna’s cargo and other commodities being shipped by unrelated entities. [Id. at Count II ¶ 9.] Plaintiff contends that Defendant was responsible for blocking and bracing the various commodities inside the trailer and for installing sealed dividers between Cessna’s cargo and the other commodities, which Plaintiff alleges was intended to help prevent shifting of cargo. [Id. at Count II ¶¶ 10–12.] Plaintiff alleges that on or about August 14, 2014, the cargo was damaged as a result of a crash involving a roll-over of the trailer in Ohio. [Id. at Count II ¶ 14.] Plaintiff contends that the driver, an employee of Defendant, gave a witness statement to the Ohio Police stating that he was “[d]riving from 77 N to 21 South doing 30 m.p.h. Load shifted & set rolled over (Double Trailers).” [Id. at Count II ¶¶ 15, 17.] According to Plaintiff, when the police asked the driver what caused him to go off the road, the driver stated that “[t]he load shifted.” [Id. at Count II ¶ 18.] Plaintiff contends that assuming, arguendo, that the driver responded truthfully in his witness statement, Defendant violated the safe loading requirements of 49 C.F.R. § 398.4(g)(1), and thus violated Subchapter I, Chapter 135 of ICCTA. Plaintiff asserts that Defendant is therefore liable for $1,916,413.26 in cargo damage plus pre-judgment and post-judgment interest and attorney’s fees, pursuant to 49 U.S.C. § 14704(a)(2) and (e).2 [See id. at Count II ¶¶ 20–21.]

 

*2 In Count III, Plaintiff alleges, upon information and belief, that the driver made false statements to the police in his witness statement. [Id. at Count III ¶ 19.] Plaintiff contends that the driver falsely stated that he was traveling at 30 m.p.h. when he was actually “traveling in excess of two times the posted speed limit of 30 m.p.h.” [Id. at Count III ¶ 20.] Plaintiff further contends that the vehicle left the road not because the load shifted, but “solely as a result of [the driver’s] flagrant violation of the posted speed limit.” [Id. at Count III ¶ 21.] Plaintiff asserts that under 49 C.F.R. § 390.113 of the FMCSR, motor carriers such as Defendant are directed to require that their drivers observe and comply with the duties set forth in the FMCSR, specifically with 49 C.F.R. § 392.6,4 which prohibits motor carriers from permitting operation of any commercial motor vehicle in excess of the speed limit. [Id. at Count III ¶ 21.] Plaintiff alleges that by failing to require the driver to adhere to the requirements of the FMSCR, including 49 C.F.R. §§ 390.11 and 392.6, Defendant violated Subchapter I, Chapter 135 of ICCTA and is therefore liable for $1,916,413.26 in cargo damage plus pre-judgment and post-judgment interest and attorney’s fees, pursuant to 49 U.S.C. § 14704(a)(2) and (e). [See id. at Count III ¶¶ 28, 32.]

 

Finally, in Count IV, Plaintiff alleges that the driver has a record of criminal convictions in Ohio for speeding and other moving violations. [Id. at Count IV ¶ 26.] Plaintiff contends that Defendant knew or should have known about the driver’s prior convictions for speeding and driving while under the influence of alcohol or drugs and that Defendant failed to give sufficient, if any, weight to these violations. [Id. at Count IV ¶ 26.] Plaintiff further alleges that Defendant’s failure to properly observe the driver’s past driving records and to prevent him from operating as a commercial driver constitutes a violation of the ICCTA and the FMCSR, citing 49 C.F.R. §§ 391.25,5 391.51,6 and 392.6. Plaintiff contends that Defendant is liable for $1,916,413.26 in cargo damage plus pre-judgment and post-judgment interest and attorney’s fees, pursuant to 49 U.S.C. § 14704(a)(2) and (e). [See id. at Count IV ¶¶ 27–28, 32.]

 

*3 Defendant has moved to dismiss Counts II, III, and IV pursuant to Federal Rule of Civil Procedure 12(b)(6).

 

 

1. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (alteration in original). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff’s well-pleaded factual allegations and draws all reasonable inferences in Plaintiff’s favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

 

 

III. Analysis

Defendant argues that the Court should dismiss Counts II, II, and IV, which are based on violations of the ICCTA, §§ 14704(a)(2) and (e), because the Carmack Amendment provides the sole and exclusive remedy for damage to cargo transported in interstate commerce. As an initial matter, the Court will discuss the background of the Carmack Amendment and the ICCTA to set the stage for the analysis of this motion to dismiss.

 

The Interstate Commerce Act contains several provisions governing a motor carrier’s liability to a shipper for the loss of, or damage to, an interstate shipment of goods. N. Am. Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 453 (7th Cir. 1996). These provisions are commonly referred to collectively as the Carmack Amendment. The Carmack Amendment provides shippers with the statutory right to recover for actual losses or injuries to their property caused by carriers involved in the shipment.7 Gordon v. United Van Lines, Inc., 130 F.3d 282, 285–86 (7th Cir. 1997). The Carmack Amendment limits the carrier’s liability to the “actual loss or injury to the property” damaged en route.8 REI Transport, Inc. v. C.H. Robinson Worldwide, Inc. 519 F.3d 693, 697 (7th Cir. 2008) (citing 49 U.S.C. § 14706(a)(1)).

 

*4 Prior to the enactment of the Carmack Amendment, disparate schemes of carrier liability existed among the states, some of which allowed carriers to limit or disclaim liability, whereas others permitted full recovery. REI Transport, 519 F.3d at 697. Thus, a carrier could have been “held liable in one court when under the same state of facts he would be exempt from liability in another.” Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913). This patchwork of regulation made it “practically impossible for a shipper engaged in a business that extended beyond the confines of his own state * * * to know * * * what would be the carrier’s actual responsibility as to goods delivered to it for transportation from one state to another.” Id. To solve this problem, the Carmack Amendment “create[e] a national uniform rule of carrier liability concerning interstate shipments.” Pinkerton, 89 F.3d at 455.

 

The Interstate Commerce Commission Termination Act of 1995, Pub.L. 104–88, 109 Stat. 803, amended and recodified the provision of the Carmack Amendment governing motor carrier liability relevant to this case at 49 U.S.C. § 14706. The ICCTA transferred the motor carrier regulatory function of the Interstate Commerce Commission to the Department of Transportation and the Surface Transportation Board. Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 192 F.3d 778, 780 (8th Cir. 1999) (citing 49 U.S.C. § 13501). However, Congress did not transfer all of the responsibilities of the ICC to the DOT. ICCTA allows commercial disputes, which had been administratively adjudicated by the ICC, to be brought in federal court. Courtney v. Ivanov, 41 F.Supp.3d 453, 459 (W.D. Penn. 2014) (citing § 14704). Section 14704(a)(2), which Plaintiff relies on in this case, provides that “a carrier * * * is liable for damages sustained by a person as a result of an act or omission of that carrier * * * in violation of this part.” 49 U.S.C. § 14704(a)(2).9 At least some federal courts have held that § 14704(a)(2) authorizes private parties to sue for damages for carrier conduct “in violation of [regulations promulgated under] this part.” New Prime, 192 F.3d at 785; see also Fulfillment Servs. Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 621 (9th Cir. 2008) (“[T]he plain language of § 14704(a)(2) counsels that there is a private right of action for violations within that part of the Termination Act[.]”);Owner-Operator Indep. Drivers Ass’n, Inc. v. Mayflower Transit, LLC, 161 F.Supp.2d 948, 955 (S.D. Ind. 2001), affirmed in part by 615 F.3d 790, 792 (7th Cir. 2010) (“Section 14704 expressly provides for damages * * * to ‘a person’ injured by a carrier’s act or omission.”); Tillman v. Bulkmatic Transp. Co., 2006 WL 1793562, at *1 (N.D. Ill. June 27, 2006); Owner-Operator Indep. Drivers Ass’n, Inc. v. Bulkmatic Transport Co., 2004 WL 1151555, at *2 (N.D. Ill. May 3, 2004). Defendant also invokes § 14704(e), which provides for an award of reasonable attorney’s fees.10

 

With this background in mind, the Court now turns to the merits of Defendant’s motion to dismiss. Defendant argues that the Court should dismiss Counts II, II, and IV of the amended complaint, which are based on violations of the ICCTA §§ 14704(a)(2) and (e), because the Carmack Amendment provides the sole and exclusive remedy for damage to cargo transported in interstate commerce. Defendant is correct that the Carmack Amendment has some preemptive force. The Carmack Amendment ensures the national uniformity of its scheme of liability by preempting “state and common law remedies inconsistent with [the Amendment].” REI Transport, 519 F.3d at 698 (citation and internal quotation marks omitted).

 

*5 However, although the Carmack Amendment’s preemptive scope is broad, it is not all-inclusive. Schartz v. National Van Lines, Inc., F.Supp.2d 690, 697 (N.D. Ill. 2005). To support its argument that the claims under § 14704 should be dismissed, Defendant relies on cases describing the Carmack Amendment as “the exclusive remedy” for damage to cargo transported in interstate commerce, but these cases merely state that the Carmack Amendment preempts state law and common law, not other federal statutes. See Pinkerton, 89 F.3d at 453 (noting that the Carmack Act preempts “all state and common law remedies covering this subject”); Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 613 (9th Cir. 1992) (noting that the Carmack Amendment preempts state common law); Fulton v. Chicago, Rock Island & P. R. Co., 481 F.2d 326, 332 (8th Cir. 1973) (holding that the Carmack Amendment preempted plaintiff’s negligence claim); Certain Underwriters at Interest at Lloyds of London v. United Parcel Serv. of Am., Inc., 762 F.3d 332, 333 (3d Cir. 2014) (holding that “the Carmack Amendment preempts all state law claims for compensation for the loss of or damage to goods shipped by a ground carrier in interstate commerce”). Defendant cites no case law supporting its argument that the Carmack Amendment preempts another federal statute, namely § 14704(a)(2).11

 

Plaintiff’s claims under § 14704 are not based on state law or common law and thus are not preempted by the Carmack Amendment. Therefore, without expressing an opinion on the merits of Plaintiff’s claims under § 14704(a)(2) and (e), the Court denies Defendant’s motion to dismiss Counts II, III, and IV of the amended complaint.12 Cf. Hall v. Aloha Int’l Moving Servs., Inc., 2002 WL 1835469, at *15 (D. Minn. Aug. 6, 2002) (granting summary judgement for plaintiff on Carmack Amendment claim for damaged goods, and granting summary judgment for defendants on § 14704 claim for violation of tariff and registration provisions, not because of Carmack preemption, but because damages sustained were not the result of the alleged failure to register or maintain applicable tariffs).

 

Finally, Plaintiff has filed a motion [27] to permit and schedule oral argument on this issue. However, the Court finds that the parties’ briefs have amply apprised the court of the relevant issues supporting and opposing Defendant’s pending motion to dismiss [22]. Oral argument is therefore unnecessary. Plaintiff’s motion for oral argument [27] is denied.

 

 

1. Conclusion

For the foregoing reasons, the Court denies Defendant’s motion to dismiss [22] and denies Plaintiff’s motion for oral argument [27]. This case is set for further status hearing on February 2, 2017 at 9:00 a.m.

 

All Citations

Slip Copy, 2017 WL 168179

 

 

Footnotes

1

49 C.F.R. § 398.4 – Driving of motor vehicles, states:

(g) Safe loading

(1) Distribution and securing of load. No motor vehicle shall be driven nor shall any motor carrier permit or require any motor vehicle to be driven if it is so loaded, or if the load thereon is so improperly distributed or so inadequately secured, as to prevent its safe operation.

Plaintiff incorrectly cites to 49 C.F.R. § 392.14(g) for this language in its amended complaint [18] but correctly cites 49 C.F.R. § 398.4(g)(1) in its response brief [25].

2

49 U.S.C. § 14704 – Rights and remedies of persons injured by carriers or brokers, states in relevant part:

(a)(2) Damages for Violations. A carrier or broker providing transportation or service subject to a jurisdiction under chapter 135 is liable for damages sustained by a person as a result of an act or omission of that carrier or broker in violation of this part.

* * *

(e) Attorney’s Fees. The district court shall award a reasonable attorney’s fee under this section. The district court shall tax and collect that fee as part of the costs of the action.

3

49 C.F.R. § 390.11 – Motor carrier to require observance of driver regulations, states in relevant part:

Whenever in part 325 of subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.

4

49 C.F.R. § 392.6 – Schedules to conform with speed limits, states:

No motor carrier shall schedule nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial motor vehicle being operated at speeds greater than those prescribed by the jurisdiction in or through which the commercial motor vehicle is being operated.

5

49 C.F.R. § 391.25 – Annual inquiry and review of driving record, states in relevant part:

(b) Except as provided in subpart G of this part, each motor carrier shall, at least once every 12 months, review the motor vehicle record of each driver it employs to determine whether that driver meets minimum requirements for safe driving or is disqualified to drive a commercial motor vehicle pursuant to § 391.15.

(1) The motor carrier must consider any evidence that the driver has violated any applicable Federal Motor Carrier Safety Regulations in this subchapter or Hazardous Materials Regulations (49 CFR chapter I, subchapter C).

(2) The motor carrier must consider the driver’s accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicate that the driver has exhibited a disregard for the safety of the public.

6

49 C.F.R. § 391.51 – General requirements for driver qualification files, states in relevant part:

(a) Each motor carrier shall maintain a driver qualification file for each driver it employs. A driver’s qualification file may be combined with his/her personnel file.

(b) The qualification file for a driver must include * * *

7

The Carmack Amendment states, in relevant part:

A carrier providing transportation or service subject to the jurisdiction under subchapter I or III of chapter 135 shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 or chapter 105 are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States[.]

49 U.S.C. § 14706(a)(1).

8

The prima facie case under the Carmack Amendment is straightforward: a plaintiff must show “(1) delivery in good condition; (2) arriving in damaged condition; and (3) the amount of damages.” REI Transport, Inc. v. C.H. Robinson Worldwide, Inc. 519 F.3d 693, 699 (7th Cir. 2008) (citation and internal quotation marks omitted). If the plaintiff establishes the prima facie case, the burden shifts to the defendant “to show that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Id. (citation and internal quotation marks omitted).

9

49 U.S.C. § 14704(a)(2) states:

(a)(2) Damages for violations. A carrier or broker providing transportation or service subject to a jurisdiction under chapter 135 is liable for damages sustained by a person as a result of an act or omission of that carrier or broker in violation of this part.

10

49 U.S.C. § 14704(e) states:

(e) Attorney’s fees. The district court shall award a reasonable attorney’s fee under this section. The district court shall tax and collect that fee as part of the costs of the action.

11

Defendant argues in its reply brief that it “does not claim the preemption doctrine * * * bars [Plaintiff’s] § 14704(a)(2) claims. Rather, [Defendant] contends that the preemptive sweep of the Carmack Amendment * * * provides further evidence in support of its position that Congress intended the Carmack Amendment exclusively govern claims for damages to cargo shipped in interstate transit. [26, at 6.] Semantics aside, Defendant’s exclusivity argument is in substance a preemption argument: essentially, Defendant claims that the Carmack Amendment preempts the entire field of interstate cargo transport, wiping out both state and federal law in the area.

12

Defendant does not challenge whether § 14704 provides a private right of action for the violations of the federal regulations that Plaintiff alleges in this case, so the Court does not address this issue.

 

 

 

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

James AUSTIN, Plaintiff–Appellee

v.

Okwuldili CHUKWUANI, Defendant.

[Appeal By American Family Insurance Company].

No. 104590.

|

Decided Jan. 12, 2017.

Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV–14–834183.

Attorneys and Law Firms

Jay S. Hanson, Columbus, OH, for appellant.

Michael S. Schroeder, David J. Jansky, Gioffre & Schroeder Co., L .P.A., Cleveland, OH, for appellee.

Before: CELEBREZZE, J., E.T. GALLAGHER, P.J., and LASTER MAYS, J.

Opinion

FRANK D. CELEBREZZE, JR., J.

 

*1 { ¶ 1}  Defendant-appellant, American Family Mutual Insurance Company (“appellant”), appeals the judgment entered upon a jury verdict in favor of plaintiff-appellee, James Austin (“Austin”), for negligence. Specifically, appellant challenges the jury’s award of economic damages, arguing that the verdict is against the manifest weight of the evidence. Appellant further argues that the trial court erred in denying its post-judgment motions for judgment notwithstanding the verdict, remittitur, and a new trial. After a thorough review of the record and law, this court affirms.

 

 

1. Factual and Procedural History

{ ¶ 2}  The instant matter arose from a motor vehicle accident. Austin owned and operated a trucking company that provided delivery services. Austin’s delivery business was a two-man operation; Austin typically made deliveries with his brother-in-law, Clinton Gwin (“Gwin”). In December 2010, Austin’s delivery business had a contract with Spirit Deliveries making deliveries for Best Buy.

 

{ ¶ 3}  On December 30, 2010, Austin and Gwin were making a delivery in Solon, Ohio. Austin parked the truck, moved into the back of the truck, and prepared to deliver an appliance. While Austin was standing in the back of the truck, a vehicle driven by Okwuldili Chukwuani collided into the truck. As a result of the collision, Austin was thrown from the back of the truck to the front.

 

{ ¶ 4}  Austin was transported to St. Vincent’s Charity Hospital where he was diagnosed with a lumbosacral strain, an injury to his lower back. Austin followed up with his primary care doctor who recommended physical therapy. Austin had magnetic resonance imaging (“MRI”) conducted on his back on February 23, 2011. When Austin continued to experience pain in his lower back, his primary care doctor referred him to Dr. Sami Moufawad, a pain management specialist.

 

{ ¶ 5}  Dr. Moufawad initially evaluated Austin on March 23, 2011, roughly three months after the accident. Dr. Moufawad reviewed Austin’s MRI and testified that the MRI “showed degenerative disc disease at L4–L5 and L5–SI. [Austin] also had disc bulge and arthritis in the facet joint.” Dr. Moufawad testified that the findings from Austin’s MRI were “not unusual” for a person of Austin’s age.1 Based on his examination of Austin, Dr. Moufawad determined that Austin “had evidence of lumbar tension sign, meaning the nerve root was under pressure.” Dr. Moufawad provided the following diagnoses regarding Austin’s injuries: “[Austin] developed radiculitis or pinching of the nerve going down to his leg. And [Austin] had suffered from an aggravation of these preexisting findings that we saw on the MRI, meaning his degenerative disc disease and the facet arthritis and the disc bulge .” Dr. Moufawad concluded that Austin “had [a] substantial aggravation of the preexistent condition as a result of the motor vehicle accident. And as a result of that, he also developed a sciatica pain or radiculopathy.”

 

*2 { ¶ 6}  Dr. Moufawad treated Austin from March 2011 through July 2011; August 2013 through December 2013; and for a final time on February 4, 2015. Dr. Moufawad’s treatment for Austin’s back injuries consisted of three steroid injections,2 medication, and home exercises. Dr. Moufawad also discussed the possibility of completing additional physical therapy.

 

{ ¶ 7}  Regarding the accident’s effect on Austin’s ability in the future, Dr. Moufawad testified that Austin could not return to working at his delivery business, which involved delivering heavy appliances. Dr. Moufawad further opined that Austin would be unable to return to work because of the pain that he was experiencing in his lower back.

 

{ ¶ 8}  On October 13, 2014, Austin filed a complaint against Chukwuani and appellant alleging that Chukwuani negligently and/or recklessly operated the vehicle that crashed into his delivery truck.

 

{ ¶ 9}  Austin carried underinsured motorist coverage with appellant in the amount of $1,000,000. Austin’s policy provided coverage for $5,000 in medical payments. Appellant made medical payments to Austin in the amount of $5,000.

 

{ ¶ 10}  Chukwuani’s insurance coverage provided for liability limits of $100,000. On April 22, 2015, pursuant to the insurance policy, Chukwuani’s provider offered $100,000 to Austin. Appellant waived its subrogation rights for the $100,000 tendered by Chukwuani’s provider.

 

{ ¶ 11}  A jury trial commenced on June 15, 2015. Dr. Moufawad, Gwin, and Austin testified on his behalf. Appellant did not call any witnesses at trial. At the close of all the evidence, appellant moved for a directed verdict. The trial court denied appellant’s motion.

 

{ ¶ 12}  The trial court provided the following instructions to the jury:

Regarding permanent or future damages, you are not to speculate. The law deals in probabilities and not mere possibilities. In determining permanent or future damages, you may consider only those things that you find from the evidence are reasonably certain to continue. (Tr. 264.)

* * *

As it relates to earnings. You will consider whatever loss of earnings the evidence shows that [Austin] had sustained as a proximate result of the injury. You will also consider whatever loss, if any, of earnings the plaintiff will, with reasonable certainty sustain in the future as a proximate cause of the injury. The measure of such damage is what the evidence shows with reasonable certainty to be the difference between the amount [Austin] was capable of earning before he was injured, and the amount he is capable of earning in the future in his injured condition.

You may consider the age of [Austin], his record of employment and earnings, his intelligence and ability to work, together with any prospects for advancements which you find have been established by the greater weight of the evidence. (Tr. 266.)

(Emphasis added.)

 

{ ¶ 13}  The jury returned a verdict in favor of Austin and awarded him a total of $206,400 in damages: $156,400 in economic damages and $50,000 in noneconomic damages. The jury’s damage award was offset against the $100,000 payment tendered by Chukwuani’s provider and the $5,000 medical payments appellant tendered to Austin. Austin’s final damage award against appellant was $101,400.

 

*3 { ¶ 14}  On July 2, 2015, appellant filed a motion for judgment notwithstanding the verdict and remittitur, or, in the alternative, a motion for a new trial. The trial court denied appellant’s motions on November 3, 2015.

 

{ ¶ 15}  Appellant filed a notice of appeal on December 2, 2015. This court dismissed the appeal for lack of a final appealable order, finding that the record did not reflect that Gwin’s claims against appellant had been dismissed.

 

{ ¶ 16}  On June 10, 2016, appellant filed the instant appeal assigning two errors for review:

1. The trial court erred in denying [appellant’s] motion for judgment notwithstanding the verdict, for remittitur or, in the alternative, for a new trial as there was no competent evidence admitted at trial to support the jury’s verdict.
2. The jury’s verdict was against the manifest weight of the evidence.

 

 

1. Law and Analysis
2. Post-judgment Motions

{ ¶ 17}  In its first assignment of error, appellant argues that the trial court erred by denying its motions for judgment notwithstanding the verdict (“JNOV”), remittitur, or, in the alternative, a new trial.

 

 

1. JNOV

{ ¶ 18}  Appellant argues that there is no competent or credible evidence supporting the jury’s $156,400 economic damages award. Appellant does not contest the $13,655 awarded to Austin for the payments he made to the employees that replaced him on his delivery truck. Rather, appellant contends that the jury awarded the remaining $142,745 to Austin based on pure speculation. We disagree.

 

{ ¶ 19}  A motion for judgment notwithstanding the verdict challenges the legal sufficiency of the evidence; a motion for remittitur challenges the weight of the evidence. Brady v. Miller, 2d Dist. Montgomery No. 19723, 2003–Ohio–4582, 12, citing Menda v. Springfield Radiologists, Inc., 2d Dist. Clark No.2001–CA–91, 2002–Ohio–6785, and Schafer v. RMS Realty, 138 Ohio App.3d 244, 741 N.E.2d 155 (2d Dist.2000). Civ.R. 50 sets forth the standard of granting a motion for directed verdict:

When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to each party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

The same standard applies to a motion for JNOV. Chem. Bank of New York v. Neman, 52 Ohio St.3d 204, 207, 556 N.E.2d 490 (1990). This court employs a de novo standard of review in evaluating the grant or denial of a motion for JNOV. Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90, 509 N.E.2d 399 (1987). “The trial court does not weigh or consider the credibility of the witnesses, but rather, reviews and considers the sufficiency of the evidence as a matter of law.” Siebert v. Lalich, 8th Dist. Cuyahoga No. 87272, 2006–Ohio–6274, ¶ 15. A motion for JNOV should only be granted if the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the nonmovant. Id . at ¶ 14.

 

*4 { ¶ 20}  Appellant emphasizes that although Austin testified that he was forced to withdraw money from his savings and retirement accounts, Austin neither specified the amount that he actually withdrew nor presented evidence, such as financial records or receipts, confirming that he did, in fact, withdraw the money. However, appellant ignores Austin’s testimony regarding his pre- and post-accident income.

 

{ ¶ 21}  Generally, once a plaintiff establishes a right to damages, plaintiff’s right will not be denied merely because the damages cannot be calculated with mathematical certainty.

“However, damages will not be awarded based on mere speculation and conjecture. * * * The plaintiff must show entitlement to damages in an amount ascertainable with reasonable certainty. * * * In assessing prospective damages, the trier of fact can only consider damages which are reasonably certain to follow the injury complained of.”

(Citations omitted.) Marzullo v. J.D. Pavement Maintenance, 2011–Ohio–6261, 975 N.E.2d 1, ¶ 40 (8th Dist.), quoting Barker v.. Sundberg, 11th Dist. Ashtabula No. 92–A–1756, 1993 Ohio App. LEXIS 5112, 4 (Oct. 25, 1993). In order to recover lost earnings, a plaintiff must establish the lost earnings with reasonable certainty. AGF, Inc. v. Great Lakes Heat Treating Co., 51 Ohio St.3d 177, 555 N.E.2d 634 (1990). Based on the following testimony, we find that the jury’s economic damages award is supported by competent and credible evidence.

 

{ ¶ 22}  Austin testified about the income he made when he was able to work on the delivery truck. Austin asserted that he would make $700 on a bad week, $1,000 on a good week, and $1,200 on an excellent week. Furthermore, during his July 29, 2013 deposition, Austin stated that when he was able to work on his delivery truck in 2010, he could earn $1,000 per week on a “decent week,” “as long as he hustled.”

 

{ ¶ 23}  Austin testified that after the accident, he had no income for eight months. Austin asserted that he never returned to working on his delivery truck after the accident because he was unable to lift or deliver heavy appliances.

 

{ ¶ 24}  Austin testified that after the accident, he was only making $100 per week from the delivery business that was not even enough to pay his personal bills. Austin stated that he dissolved his delivery business and sold his truck in 2012 because the business was no longer profitable.

 

{ ¶ 25}  Austin testified that he earned $1,000 every two weeks in 2012. Austin testified that at the time of the June 2015 trial, his income was one-fourth of the income he had before the accident.

 

{ ¶ 26}  Austin was 57 years old at the time of the accident; he was 62 years old at the time of trial. Austin testified at trial that the last time he worked was on August 26, 2013. During his deposition, Austin testified that he had planned to work at his delivery business until he was 65 years old. However, Austin explained that he exhausted his savings account and had to withdraw money from his retirement account in order to pay his bills.3

 

*5 { ¶ 27}  Austin’s testimony was corroborated by the testimony of Dr. Moufawad and Gwin. Dr. Moufawad testified that Austin was unable to return to his delivery business where he would be required to deliver heavy appliances. Dr. Moufawad further explained that Austin attempted to return to work in a “light dut[y]” position delivering boxes of potato chips, but was unable to do so. Accordingly, Dr. Moufawad opined that Austin would not be able to return to work due to his lower back pain.

 

{ ¶ 28}  Gwin testified that he worked on the delivery truck with Austin for 20 years before the accident. Gwin stated that there was no aspect of the delivery business that Austin could not perform before the accident. Gwin explained, “[Austin] was the driver. I mean [he] was the installer. Deliver refrigerators, stoves. There were dish washers, microwaves, and things like that.” Gwin asserted that he returned to working on the delivery truck approximately eight weeks after the accident, and continued working on the truck for roughly eight months thereafter.

 

{ ¶ 29}  Gwin testified that Austin never returned to working on the truck after the accident. Gwin explained that the delivery business was only profitable as a two-man operation, and that Austin would not be able to make a living on his income from the business if he was not working on the truck. Gwin stated that Austin eventually closed the delivery business. Gwin testified about the impact that the accident had on Austin: “[Austin’s] appearance has changed. He’s got a cane now. He can’t walk. Now he complains about his back hurting. Now he’s unable to, you know, do the things that he used to do”; “[Austin’s] pace is a lot slower now. He’s limping. He’s not the person that he was prior to the accident, not at all, not at all.” (Tr. 209.)

 

{ ¶ 30}  After reviewing the record, we find that it contains substantial competent evidence to support Austin’s claim of economic damages, including lost income, upon which reasonable minds could reach different conclusions. Accordingly, the trial court properly denied appellant’s motion for JNOV.

 

 

2. Remittitur

{ ¶ 31}  Appellant argues that it is entitled to remittitur in the amount of $142,745—bringing the $156,400 economic damages award to $13,655—because the jury’s verdict is not supported by sufficient evidence. Appellant further contends that the jury’s economic damages award is “clearly excessive.”

 

{ ¶ 32}  Initially, we note that appellant’s argument combines and confuses the issues of JNOV and remittitur. While JNOV pertains to the sufficiency of the evidence, remittitur pertains to the manifest weight of the evidence. Brady, 2d Dist. Montgomery No. 19723, 2003–Ohio–4582, at 12.

 

{ ¶ 33}  We review a trial court’s ruling on motions for remittitur under an abuse of discretion standard. Shepard v. Grand Trunk W. RR. Inc., 8th Dist. Cuyahoga No. 92711, 2010–Ohio–1853, ¶ 81. Under an abuse of discretion standard, the trial court’s decision will be reversed only if it is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

 

*6 { ¶ 34}  The Ohio Supreme Court has identified four requirements that must be met before a court may order remittitur: (1) unliquidated damages must be assessed by a jury; (2) the jury’s verdict must not have been influenced by passion or prejudice; (3) the damages award must be excessive; and (4) the prevailing party must consent to a reduction in damages. Wightman v. CONRAIL, 86 Ohio St.3d 431, 444, 715 N.E.2d 546 (1998).

 

{ ¶ 35}  In support of its argument that the jury’s economic damages award is excessive, appellant submits that “it cannot be overlooked that the maximum amount of evidence produced for [Austin’s] economic loss is $13,655. Therefore, an award assessed by the jury of $156,400 (an amount over eleven times the submitted damages) is clearly excessive.” Appellant’s brief at 11. Appellant’s argument is misplaced. As noted above, appellant overlooks Austin’s testimony regarding his income before and after the accident.

 

{ ¶ 36}  Austin testified that before the accident, he would make $1,000 on a “good” or “decent” week from his delivery business. Furthermore, Austin asserted that after the accident, he had no income for eight months and only earned $100 per week from his delivery business. Austin stated that he earned $1,000 every two weeks in 2012. Austin testified that his income at the time of trial was one-fourth of his income before the accident.

 

{ ¶ 37}  Appellant does not contradict Austin’s testimony regarding his pre- and post-accident income. Rather, appellant merely argues that the checks totaling $13,655 were the only evidence of economic loss that Austin presented. Appellant’s argument is belied by the record.

 

{ ¶ 38}  Based on Austin’s testimony, we cannot say that the jury’s economic damages award was excessive. Accordingly, the trial court did not abuse its discretion by denying appellant’s motion for remittitur.

 

 

3. Motion for a New Trial

{ ¶ 39}  In the alternative to its arguments regarding JNOV and remittitur, appellant argues that the matter should be remanded to the trial court for a new trial. We disagree.

 

{ ¶ 40}  The standard of review we apply to a trial court’s ruling on a motion for new trial filed under Civ.R. 59 depends on the grounds for the motion. For example, a motion for new trial premised upon a procedural irregularity under Civ.R. 59(A)(1) is reviewed for an abuse of discretion. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007–Ohio–5587, 876 N.E.2d 1201, ¶ 35–36. A motion for a new trial premised upon “error of law occurring at the trial and brought to the attention of the trial court” under Civ.R. 59(A)(9), however, is reviewed under a de novo standard. In McLeod v. Mt. Sinai Med. Ctr., 166 Ohio App.3d 647, 2006–Ohio–2206, 852 N.E.2d 1235 (8th Dist.), rev’d on other grounds, McLeod v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007–Ohio–5587, 876 N.E.2d 1201, this court explained that when a jury’s verdict is supported by substantial competent and credible evidence, the verdict is presumed to be correct and the trial court must refrain from granting a new trial. Id. at ¶ 27, citing Schlundt v. Wank, 8th Dist. Cuyahoga No. 70978, 1997 Ohio App. LEXIS 1517 (Apr. 17, 1997).

 

*7 { ¶ 41}  As noted above, we find that the jury’s economic damages award is supported by competent and credible evidence. Thus, we must presume that the jury’s verdict is correct. Accordingly, we cannot say that the trial court abused its discretion by denying appellant’s motion for a new trial.

 

{ ¶ 42}  For all of the foregoing reasons, we find no merit to appellant’s first assignment of error. Accordingly, appellant’s first assignment of error is overruled.

 

 

1. Manifest Weight

{ ¶ 43}  In its second assignment of error, appellant argues that the jury’s verdict is against the manifest weight of the evidence.

 

{ ¶ 44}  When reviewing the manifest weight of the evidence in a civil case, this court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E .2d 517, ¶ 20. A verdict supported by some competent, credible evidence going to all the essential elements of the case must not be reversed as being against the manifest weight of the evidence. Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011–Ohio–2259, ¶ 6; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

 

{ ¶ 45}  Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990).

 

{ ¶ 46}  We are guided by a presumption that the findings of the trier of fact are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). This presumption arises because the trier of fact had an opportunity “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Id.

 

{ ¶ 47}  In support of its manifest weight challenge, appellant reiterates its argument that the checks totaling $13,655 were the only documented evidence of economic damages that Austin produced at trial. Once again, appellant neglects Austin’s testimony regarding his pre- and post-accident income.

 

{ ¶ 48}  In light of Austin’s testimony regarding his income and Dr. Moufawad’s testimony regarding Austin’s inability to return to work, we find that the jury’s verdict and economic damages award is supported by competent and credible evidence. Accordingly, the jury’s verdict is not against the manifest weight of the evidence.

 

{ ¶ 49}  Appellant’s second assignment of error is overruled.

 

 

III. Conclusion

{ ¶ 50}  After thoroughly reviewing the record, we find that the trial court properly denied appellant’s post-judgment motions for JNOV, remittitur, and a new trial. Furthermore, the jury’s verdict is not against the manifest weight of the evidence.

 

*8 { ¶ 51}  Judgment affirmed.

 

It is ordered that appellee recover of appellant costs herein taxed.

 

The court finds there were reasonable grounds for this appeal.

 

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.

 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

 

EILEEN T. GALLAGHER, P.J., and ANITA LASTER MAYS, J., concur.

All Citations

Slip Copy, 2017 WL 123336, 2017 -Ohio- 106

 

 

Footnotes

1

The record reflects that Austin was 57 years old at the time of the accident.

2

Austin received injections on March 28, 2011; April 4, 2011; and April 11, 2011.

3

There was no evidence introduced regarding the withdrawals.?