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Napier v. Ickes

Court of Appeals of Ohio, Fifth District, Licking

June 27, 2019

KATHERINE NAPIER, ET AL. Plaintiff-Appellant
v.
TERRY D. ICKES, ET AL. Defendants-Appellees

          Appeal from the Licking County Court of Common Pleas, Case No. 2013 CV 00217

          For Plaintiff-Appellant: SCOTT ELLIOT SMITH BRIAN R. NOETHLICH

          For Defendants-Appellees: WILLIAM SCOTT LAVELLE JOHN A. FIOCCA, JR. BARRY W. LITTRELL JOHN F. MCLAUGHLIN TODD M. ZIMMERMAN

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Delaney, J.

         {¶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 i ...

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