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Galina Banas v. Glen M. Shively

October 13, 2011

GALINA BANAS PLAINTIFF-APPELLANT
v.
GLEN M. SHIVELY DEFENDANT-APPELLEE



Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-696774

The opinion of the court was delivered by: Eileen A. Gallagher, J.

Cite as

Banas v. Shively,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: E. Gallagher, J., Jones, P.J., and Cooney, J.

{¶1} Plaintiff-appellant, Galina Banas ("Banas") appeals the judgment of the Cuyahoga County Common Pleas Court and the trial court's denial of her motion for a new trial. Finding no merit to the appeal, we affirm.

{¶2} Banas was involved in a motor vehicle accident with appellee, Glen Shively, on July 3, 2007. Appellee's vehicle collided with appellant's vehicle and pushed appellant off the road, causing her to strike a large rock. Banas filed suit in the Cuyahoga County Common Pleas Court. Although negligence was admitted by appellee, the parties disputed the issues of causation and damages.

{¶3} Banas testified that her speed at the time of the collision was between 30 and 35 miles per hour. Appellant testified that immediately after the collision, she experienced pain in her head, neck, shoulder, back, and ears. Appellant stated that she did not leave her vehicle after the collision until an ambulance arrived on scene and she was removed from her vehicle by responders.

{¶4} Banas was taken to Huron Road Hospital where she was treated and released. Contrary to her testimony, the emergency room records reflect that the accident was a low speed accident with a "glancing" blow-type collision. The emergency room records further indicate that appellant was walking at the scene, a fact that appellant denied at trial. Though the emergency room record reveals that appellant reported pain in her head, neck, and back, it states that appellant's neck and back were "non-tender." Finally, the emergency room record reflects that appellant was discharged in "good" condition and that her condition had improved by the time of discharge.

{¶5} Appellant testified that she sought further treatment from a primary care physician three days after the accident because she was in "horrible pain." Beyond her primary care physician, appellant obtained treatment from a number of doctors including a chiropractor, Dr. Michael Jakubowski. Appellant testified that she saw Dr. Jakubowski seven to eight times, twice a week. A report from Dr. Jakubowski indicated that, "[a]s of August 15th, 2007, [Mrs. Banas's] complaints are of mild neck pain on the left that is increased with daily activity. However she also stated that there was no mid to lower back complaints and that her signs and symptoms in her cervical spine have been reduced by 90%."

{¶6} Appellant testified that on July 19, 2007, she was a rear-seat passenger in a car driven by her husband when the car was involved in a rear-end collision. Appellant testified that she was not injured in this second accident. Appellant described the July 19th collision as a "small hit on [the] bumper," and testified that she did not seek any medical treatment for the accident.

{¶7} Contrary to appellant's assertion that she was not injured in the second accident, a record from appellant's primary care doctor, dated July 20, 2007, indicates that appellant complained of a "whiplash" injury. Records reveal that appellant again treated with her primary care physician on July 25, 2007 to re-assess injuries from the July 19, 2007 accident.

{¶8} Though appellant denied sustaining any injury in her second motor vehicle accident, appellee impeached her testimony at trial by introducing a copy of a Lake County lawsuit stemming from the July 19, 2007 accident wherein appellant alleged that she sustained injuries in excess of $125,000.*fn1

{¶9} Appellant testified at trial that she lost her job and did not work much after the accident because she is unable to do any lifting. Appellee impeached this testimony with evidence that appellant earned more money through her employment in the year following the accident than she did in several years prior to the accident.

{¶10} Appellant's medical treatment culminated with spinal surgery in Februrary of 2010. Appellant's surgery was performed by Dr. Timothy Moore, who opined at trial, to a reasonable degree of medical certainty, that appellant's surgery was causally related to her July 3, 2007 accident. Appellee contested the basis of Dr. Moore's causation opinion, eliciting testimony that Dr. Moore's opinion was, in large part, based upon subjective reports of symptoms and when they initially occurred, as provided to him by appellant. Notably, appellant failed to disclose her second car accident to Dr. Moore. Furthermore, Dr. Moore did not review appellant's emergency room records, or her records from her primary care physician or chiropractor, nor any records prior to appellant's July 3, 2007 accident. Dr. Moore was also unaware of records from appellant's chiropractor indicating that appellant's symptoms were 90% better as of August 15, 2007.

{¶11} Lastly, Dr. Moore testified that appellant's medical records revealed that Progressive Insurance Company, such limit being $25,000 per person. Accordingly, [Defendant] is underinsured * * *" Paragraph 13 states: "Under Plaintiffs' insurance policy with Esurance they are is entitled to Uninsured / Underinsured Motorists Coverage in the amount of $100,000 per person."

{¶12} At trial, appellant sought $82,494 in medical bills including $69,373.66 from the surgery. The jury returned a verdict in favor of appellant in the amount of $7,338.21 of which $3,695.35 was attributed to past economic damages and the remainder to non-economic damages.

{¶13} Appellant filed a motion for a new trial on September 16, 2010, which the trial court denied on November 29, 2010. Appellant appealed from the judgment of the trial court asserting the four assignments of error contained in the appendix to this opinion.

{¶14} Appellant argues in her first assignment of error that the jury's award of $7,338.21, including $3,695.35 for past economic damages, was against the manifest weight of the evidence.

{¶15} It is a basic principle of appellate review that judgments supported by competent, credible evidence going to all the material elements of a case must not be reversed as against the manifest weight of the evidence. Berry v. Lupica, Cuyahoga App. No. 95393, 2011-Ohio-3464, at ¶21, citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus; Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533. "We therefore indulge every reasonable presumption in favor of the trial court's judgment, and to the extent that the evidence is susceptible to more than one interpretation, we construe it consistently with the jury's verdict." Id. (Internal citations omitted.)

{¶16} "[I]t is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses." Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178. That is, an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial judge. Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

{¶17} Appellant argues that the jury's award of $3,695.35 in economic damages, representing the amount of medical bills from July 3, 2007 until July 18, 2007, the date prior to appellant's second motor vehicle accident, is against the manifest weight of the evidence.*fn2 Appellant argues that she established by uncontroverted evidence that the entire ...


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