DAWN ROSENSHINE, Exec. Plaintiff
MEDICAL COLLEGE HOSPITALS Defendant
To S.C. Reporter August 22, 2013
Anne B. Strait Mark F. Vitou Assistant Attorney General
Holly True Shaver, Magistrate
Patrick M. McGrath, Judge
(¶ 1} On December 21, 2012, the magistrate issued a decision recommending that final judgment be entered for plaintiff in the amount of $210, 743.57 after the probate court has adjusted the share that each beneficiary is to receive.
(¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: "A party may file written objections to a magistrate's decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i)." Defendant filed objections on January 14, 2013, with leave of court.  On January 24, 2013, plaintiff filed her objection to the magistrate's decision. The damages trial consisted of oral arguments and documentary evidence. Inasmuch as there was no testimony, no transcript of the proceedings was filed with the court.
(¶ 3} The Tenth District Court of Appeals reversed this court's decision on the issue of liability and entered judgment in favor of plaintiff as to the issue of liability. Rosenshine v. Med. College Hosps., 10th Dist. No. 11AP-374, 2012-Ohio-2864. The magistrate then held a damages trial and found that plaintiff was entitled to funeral and burial expenses pursuant to R.C. 2121.02(A)(2) in the amount of $10, 718.57. Additionally, the magistrate determined that $100, 000 should be awarded for the survivorship claim. As for the wrongful death claim, the magistrate recommended awards of non-economic damages for loss of society and mental anguish as follows: Dawn Rosenshine, $30, 000; Robert Dougherty, Jr., $30, 000; Vincent Dougherty, $30, 000; and Alyssa Dougherty, $10, 000. While plaintiff received a settlement of $25, 000 as a result of litigation in the connected action and $20, 000 from a life insurance policy, the magistrate determined that such proceeds would not be deducted from the award pursuant to Aubry v. Univ. of Toledo Med. Ctr., 10th Dist. No. 11AP-509, 2012-Ohio-1313, and R.C. 3345.40(B)(2).
(¶ 4} In reviewing a party's objections, the "court must conduct an independent analysis of the underlying issues, undertaking the equivalent of a de novo determination and independently assessing the facts and conclusions contained in the magistrate's decision." Shihab & Assoc. Co. LPA v. Ohio Dept. of Transp., 168 Ohio App.3d 405, 2006-Ohio-4456, ¶ 13 (10th Dist.).
(¶ 5} In its first objection, defendant argues that the $25, 000 plaintiff received from the settlement of the connected action should be set off against defendant's liability.
(¶ 6} R.C. 3345.40(B)(2) provides that in an action against a state university or college "[i]f a plaintiff receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefit shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against the state university or college recovered by the plaintiff."
(¶ 7} "Benefit, " as used in R.C. 3345.40(B)(2), was defined as "'[f]inancial assistance received in time of sickness, disability, unemployment, etc. either from insurance or public programs such as social security.'" Aubry, supra, at ¶ 20, quoting Vogel v. Wells, 57 Ohio St.3d 91, 98 (1991), citing Black's Law Dictionary 158 (6th Ed.1990). In applying this definition, the court found that the settlement plaintiff received was "not subject to the setoff provision of R.C. 3345.40(B)(2)." Id. at ¶ 22.
(¶ 8} In affirming the Aubry decision, the Tenth District Court of Appeals recently stated that "[b]ased on this court's recent precedent in Aubry, we conclude that [plaintiffs] settlement proceeds * * * do not fall within the scope of 'benefits, ' under R.C. 3345.40(B)(2). The Supreme Court has expressly adopted a definition of the term 'benefits' in the context of identical statutory language, and this court has applied that definition to R.C. 3345.40(B)(2)." Adae v. Univ. of Cincinnati, 10th Dist. No. 12AP-406, 2013-Ohio-23, ¶ 30.
(¶ 9} Based on these recent Tenth District Court of Appeals decisions, the court finds that the magistrate did not err in determining that plaintiffs recovery would not be reduced by the $25, 000 settlement. Furthermore, the court agrees with the magistrate's determination that the language of R.C. 3345.40(B)(2) prohibits this court from reducing plaintiffs award by the life insurance proceeds that plaintiff received. Defendant's first objection is OVERRULED.
(¶ 10} In its second objection, defendant argues that the court should make a determination that decedent, Theresa Dougherty, was comparatively negligent and reduce the damages award accordingly. The magistrate stated, "Defendant also seeks a determination from this court that Theresa was comparatively negligent * * * The court finds that inasmuch as the Court of Appeals rendered judgment in favor of plaintiff without consideration of defendant's comparative ...